EXHIBIT 10.3
RAPTOR NETWORKS TECHNOLOGY, INC.
INVESTORS' RIGHTS AGREEMENT
THIS INVESTORS' RIGHTS AGREEMENT (this "AGREEMENT") is made and entered
into as of the 22nd day of March 2005, by and between Raptor Networks
Technology, Inc., a Colorado corporation (the "COMPANY"), and the parties (each
an "INVESTOR" and, collectively, the "INVESTORS") listed on the Schedule of
Investors attached hereto as Exhibit A (the "SCHEDULE OF INVESTORS").
RECITALS
WHEREAS, the Company proposes to sell and issue in a private placement
offering (the "OFFERING") up to 3,250,000 units (the "UNITS") to accredited
investors only at a purchase price of $2.00 per Unit for total gross offering
proceeds of up to $6,500,000 with an over allotment option allowing the Offering
to be expanded by up to 650,000 additional Units for a total Offering of up to
3,900,000 Units in the Offering, each Unit consisting of four shares of the
Company's Common Stock (the "SHARES") and one warrant to purchase a share of the
Company's Common Stock (the "INVESTOR WARRANTS"), all pursuant to a Private
Placement Memorandum (the "MEMORANDUM") and Subscription Agreements with the
Investors (the "SUBSCRIPTION AGREEMENTS"); and
WHEREAS, as a condition of entering into the Subscription Agreements,
the Investors have requested that the Company extend to them registration rights
and other rights with respect to the Shares and the common stock underlying the
Investor Warrants as set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission or
any successor agency.
"COMMON SHARES" means the Common Shares of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"HOLDER" means any holder of outstanding Registrable
Securities, which have not been sold to the public.
"OTHER REGISTRABLE SECURITIES" means the Common Shares
underlying warrants issued pursuant to the Managing Dealer Agreement for the
Offering.
"PARTIES" means the parties that are signatories of this
Agreement or hereafter agree in writing to be bound by this Agreement; "PARTY"
shall refer to any one of the Parties.
"REGISTRABLE SECURITIES" means (i) the Shares, (ii) the Common
Shares underlying the Investor Warrants; and (ii) any other Common Shares issued
as (or issuable upon conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to or
in exchange for or replacement of the Shares or Investor Warrants.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRATION EXPENSES" means all reasonable out-of-pocket
expenses incurred by the Company in complying with Sections 3 and 4 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, accounting fees of the Company, and the
reasonable fees and expenses not to exceed $25,000 of one counsel for the
Holders and holders of Other Registrable Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLING EXPENSES" means all underwriting discounts, selling
commissions and share transfer taxes applicable to the securities registered by
the Holders.
2. DIRECTOR NOMINATION RIGHTS. At the conclusion of the Offering,
Brookstreet shall have the right to nominate one director (the "Nominee") to the
Company's Board of Directors to represent the Brookstreet Shareholders. The
Company shall use best efforts to have the Nominee elected to the Board of
Directors however; it is acknowledged that such decision is ultimately left up
to the discretion of the Company's shareholders.
3. REGISTRATION RIGHTS. Not later than 60 calendar days following the
final closing of the Offering (the "FINAL Closing"), the Company shall file a
registration statement (the "REGISTRATION STATEMENT") covering the public sale
of Registrable Securities (defined below), and the Company will cause such
shares to be registered under the Securities Act of 1933, as amended (the "1933
Act") and continue to keep the Registration Statement effective for a period of
two years. For every day that the Company is late in filing the Registration
Statement beyond 60 days, the Company will issue to the Holders, on a pro rata
basis, additional shares in whole share increments equal to 1% of shares
purchased in the Offering.
4. EXPENSES OF REGISTRATION. The Company shall pay all Registration
Expenses incurred in connection with any registration, qualification or
compliance pursuant to Section 3 and 5. All Selling Expenses relating to
Registrable Securities shall be borne by the Holders.
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5. REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
5.1 EFFECTIVENESS. Prepare and file with the Commission a
registration statement with respect to such securities and use its commercially
reasonable best efforts to cause such registration statement to become and
remain effective for at least two years or until the distribution described in
the registration statement has been completed, whichever is shorter; PROVIDED,
HOWEVER, that such two year period shall be extended to the extent required by
Section 5.6;
5.2 AMENDMENTS. Prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement;
5.3 COPIES OF DOCUMENTS. Furnish to the Holders participating
in such registration and to the underwriters of the securities being registered
such reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such underwriters or
such Holders may reasonably request in order to facilitate the public offering
of such securities;
5.4 BLUE SKY LAWS. Use its commercially reasonable best
efforts to register and qualify the securities covered by such registration
statement under such other securities or blue sky laws of such jurisdictions as
shall be reasonably requested by the Holders;
5.5 NOTIFICATION. Notify each Holder of Registrable Securities
covered by such registration statement if at any time the Company shall
determine that the registration statement or any prospectus included therein
shall contain an untrue statement of material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading, and thereafter, subject to Section 5.6,
promptly prepare and file with the Commission an amendment to the registration
statement or a supplement to the prospectus as may be necessary to correct such
untrue statement or omission, and notify the selling Holders of such filing;
5.6 AMENDMENT OR SUPPLEMENT TO REGISTRATION STATEMENT. Prepare
and file as soon as reasonable with the Commission and promptly notify each
Holder of Registrable Securities covered by such registration statement of the
filing of such amendment or supplement to the registration statement or
prospectus as may be necessary to correct any statements or omissions if, at the
time when a prospectus relating to such securities is required to be delivered
under the Securities Act, the Company determines that any event shall have
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or if the Company
determines that an amendment to the registration statement or supplement to the
prospectus is advisable before further sales of Registrable Securities should be
made; provided that if the Board of Directors of the Company determines that
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amending the registration statement or supplementing the prospectus might be
detrimental to the Company, then, notwithstanding this Section 5.6, the Company
may defer such amendment or supplement for up to 120 days, provided that: (i)
the Company shall not use such right of deferral with respect to any
registration statement for more than an aggregate of 120 days in any 12-month
period; and (ii) the number of days the Company is required to keep the
registration statement effective shall be extended by the number of days for
which the Company shall have used such right of deferral;
5.7 STOP ORDER. Advise each Holder of Registrable Securities
covered by such registration statement promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its commercially
reasonable best efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such stop order should be issued; and
5.8 TRANSFER AGENT AND REGISTRAR. Provide a transfer agent and
registrar for all Registrable Securities registered pursuant hereunder and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such registration.
If a Holder receives a notification from the Company pursuant
to this Section 5 that a registration statement or prospectus contains an untrue
statement or omission or that the Company is exercising its rights pursuant to
Section 5.6, then such Holder shall: (i) keep the fact of such notification and
its contents confidential, and (ii) immediately suspend all sales of securities
of the Company and any use of the registration statement or prospectus as to
which the notification applies, until such time as such Holder receives
notification from the Company that an amendment to the registration statement or
a supplement to the prospectus has been filed and that sales may be made.
6. TRANSFER OF REGISTRATION RIGHTS. The rights granted hereunder to
cause the Company to register securities or to participate in a registration of
the Company may not be assigned to any transferee or assignee of Registrable
Securities unless the transferee agrees to be bound by the terms and conditions
of this Agreement; PROVIDED the Company is given prompt notice of the transfer.
7. INDEMNIFICATION.
7.1 COMPANY INDEMNIFICATION. The Company will indemnify each
Holder, each of its officers, directors and partners, and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
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material fact required to be stated therein or necessary to make the statements
therein, not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will reimburse each such
Holder, each of its officers, directors and partners, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided the Company shall not be liable for
amounts paid in settlement of any claims if such settlement is made without the
consent of the Company, which consent shall not be unreasonably withheld, and
that the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to the
Company by a Holder or underwriter specifically for use therein.
7.2 HOLDER INDEMNIFICATION. Each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, underwriters or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Holder and stated to be specifically for
use therein; PROVIDED, HOWEVER, that the obligations of any such Holder
hereunder shall be limited to an amount equal to the gross proceeds before
expenses and commissions to such Holder of Registrable Securities sold as
contemplated herein.
7.3 NOTIFICATION OF CLAIM. Each party entitled to
indemnification under this SECTION 7 (the "INDEMNIFIED Party") shall give notice
to the party required to provide indemnification (the "INDEMNIFYING PARTY")
promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not be unreasonably withheld), and the Indemnified Party may participate
in such defense at such party's expense; PROVIDED, HOWEVER, that the Indemnified
Party (together with all other Indemnified Parties that may be represented
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without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the Indemnifying Party, if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between such Indemnified Party and any other party represented by such
counsel in such proceeding; and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, except to the
extent, but only to the extent, that the Indemnifying Party's ability to defend
against such claim or litigation is impaired as a result of such failure to give
notice. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
7.4 CONTRIBUTION. If the indemnification provided for in
Sections 7.1 and 7.2 of this Section 7 is unavailable or insufficient to hold
harmless an Indemnified Party thereunder, then each Indemnifying Party
thereunder shall contribute to the account paid or payable by such Indemnified
Party as a result of the losses, claims, damages, costs, expenses, liabilities
or actions referred to in Sections 7.1 and 7.2 in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and the Indemnified Party on the other in connection with statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Indemnifying Party or the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statements or
omissions. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7.4 were to be determined by pro rata or
per capita allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of
this Section 7.4. The amount paid by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
Section 7.4 shall be deemed to include any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending
any action or claim which is the subject of this Section 7.4. Promptly after
receipt by an Indemnified Party of notice of the commencement of any action
against such party in respect of which a claim for contribution may be made
against an Indemnifying Party under Section 7.4, such Indemnified Party shall
notify the Indemnifying Party in writing of the commencement thereof if the
notice specified in Section 7.3 has not been given with respect to such action;
PROVIDED that the omission so to notify the Indemnifying Party shall not relieve
the Indemnifying Party from any liability which it may have to any Indemnified
Party otherwise under Section 7.4, except to the extent that the Indemnifying
Party is actually prejudiced by such failure to give notice. The parties hereto
agree with each other and shall agree with the underwriters of the Common Shares
of the Company pursuant to the terms hereof, if requested by such underwriters,
that (i) the underwriters' portion of such contribution shall not exceed the
underwriting discount, commission and other compensation, and (ii) except for
the Company, the amount of such contribution shall not exceed an amount equal to
the proceeds received by such Indemnifying Party from the sale of securities in
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the offering to which the losses, claims, damages or liabilities of the
indemnified parties relate. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. LOCK-UP AGREEMENTS. The Company agrees to secure agreements from its
officers, directors (except for director Xxxxxx Xxxx), and shareholders holding
10% or more of its Common Shares ("Affiliates") by which each Affiliate
severally agrees that such Affiliate shall not, directly or indirectly, offer,
sell, pledge, contract to sell, transfer the economic risk of ownership in, make
any short sale, grant any option to purchase or otherwise dispose of any shares
of Company Stock held by such Affiliates or any securities convertible into or
exchangeable or exercisable for or any other rights to purchase or acquire
Registrable Securities, including, without limitation, Common Shares which may
be deemed to be beneficially owned by the Holders in accordance with the rules
and regulations of the Commission and Common Shares which may be issued upon
exercise of a stock option or warrant, or enter into any Hedging Transaction (as
defined below) relating to Registrable Securities (each of the foregoing
referred to as a "DISPOSITION") for a period of 180 days after the effective
date of the registration statement relating to such public offering (the
"LOCK-UP PERIOD"), provided however that Registrable Securities purchased in the
Offering shall not be subject to any such lock-up. The foregoing restriction is
expressly intended to preclude any Affiliate from engaging in any Hedging
Transaction or other transaction which is designed to or reasonably expected to
lead to or result in a Disposition during the Lock-Up Period even if the
securities would be disposed of by someone other than such Holder. "HEDGING
TRANSACTION" means any short sale (whether or not against the box) or any
purchase, sale or grant of any right (including, without limitation, any put or
call option) with respect to any security (other than a broad-based market
basket or index) that includes, relates to or derives any significant part of
its value from the Company's shares of Common Stock. Each Holder agrees that the
Company may instruct its transfer agent to place stop transfer notations in its
records to enforce the provisions of this Section 8.
9. INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
10. RECORDS AND REPORTS. The Company shall keep its books and records
up to date and remain current in its reporting requirements under the Exchange
Act, for a period of two years following the conclusion of the Offering.
11. PRE-EMPTIVE RIGHTS.
11.1 SUBSEQUENT OFFERINGS. Commencing on the date of this
Agreement and terminating on the one year anniversary of the Final Closing of
the Offering, each Holder shall have a right of first refusal to purchase its
PRO RATA share of all Offered Securities, as defined below, that the Company may
propose to sell and issue after the date of this Agreement, other than the
Offered Securities excluded by Section 11.4 hereof. Each Holder's PRO RATA share
is equal to the ratio of (a) the number of Registrable Securities which such
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Holder is deemed to be a holder immediately prior to the issuance of such
Offered Securities to (b) the total number of Registrable Securities sold in the
Offering. The term "Offered Securities" shall mean any securities, whether based
on debt, equity or a combination thereof, including, but not limited to any
Common Shares, preferred shares, warrants, bonds, debentures, or notes.
11.2 EXERCISE OF RIGHTS. If the Company proposes to issue any
Offered Securities, it shall give each Holder written notice of its intention,
describing the Offered Securities, the price and the terms and conditions upon
which the Company proposes to issue the same. Each Holder shall have fifteen
(15) days from the giving of such notice to agree to purchase its PRO RATA share
of the Offered Securities for the price and upon the terms and conditions
specified in the notice by giving written notice to the Company and stating
therein the quantity of Offered Securities to be purchased. Notwithstanding the
foregoing, the Company shall not be required to offer or sell such Offered
Securities to any Holder who would cause the Company to be in violation of
applicable federal securities laws by virtue of such offer or sale.
11.3 TRANSFER OF RIGHTS OF FIRST REFUSAL. The rights of first
refusal of each Holder under this Section 11 may be transferred to the same
parties, subject to the same restrictions as any transfer of registration rights
pursuant to Section 3.
11.4 EXCLUDED SECURITIES. The rights of first refusal
established by this Section 11.4 shall have no application to any of the
following Offered Securities:
(a) Offered Securities issued pursuant to stock splits,
stock dividends or other recapitalization transactions;
(b) Offered Securities issued to employees, officers,
directors, consultants, contractors or advisors of the Company pursuant
to stock purchase or stock option plans or agreements or other
incentive stock arrangements approved by the Board of Directors of the
Company;
(c) Offered Securities issued to lenders, equipment
lessors or other parties providing goods or services to the Company;
(d) Offered Securities issued in connection with
acquisition transactions;
(e) Offered Securities issued upon exercise of warrants
that were granted pursuant to the Managing Dealer Agreement that was
executed by the Company in connection with the Offering;
(f) Offered Securities issued in strategic partnership
transactions; or
(g) Offered Securities issued in any other transaction in
which exemption from the right of first refusal provisions of this
Section 16 is approved by the Holders of a majority of the Registrable
Securities.
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12. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be
governed in all respects by the internal laws of the State of California,
without giving effect to principles of conflicts of laws. The Parties submit to
the jurisdiction of the Courts of the County of Orange, State of California, or
a Federal Court empaneled in the State of California for the resolution of all
legal disputes arising under the terms of this Agreement.
13. ENTIRE AGREEMENT. This Agreement and, as applicable, the
Subscription Agreements, constitute the full and entire understanding and
agreement between the parties regarding the transactions contemplated herein and
therein. Except as otherwise expressly provided herein and therein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
14. NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given (i) upon personal delivery to the
party to be notified, (ii) five days after deposit in the United States mail, by
registered or certified mail, postage prepaid and properly addressed to the
party to be notified as set forth on the signature page hereof or at such other
address as such party may designate by ten days' advance written notice to the
other parties hereto, or (iii) when transmitted if transmitted by telecopy (to
be followed by U.S. mail), electronic or digital transmission method. In each
case notice shall be sent to the addresses set forth on the signature page.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one and
the same instrument.
16. AMENDMENT. Any provision of this Agreement may be amended, waived,
modified, discharged or terminated only with the written consent of the Company
and the Holders of a majority in interest of the Registrable Securities. Any
amendment or waiver effected in accordance with this paragraph will be binding
upon the Company and each holder of any securities subject to this Agreement
(including securities into which such securities are convertible) and future
holders of all such securities. Any Holder may waive his or her rights or the
Company's obligations hereunder without obtaining the consent of any other
person.
17. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
18. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable to any extent in any context, it shall nevertheless be
enforced to the fullest extent allowed by law in that and other contexts, and
the validity and force of the remainder of this Agreement shall not be affected
thereby.
19. ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all reasonable fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including without limitation, such reasonable fees
and expenses of attorneys and accountants, which shall include, without
limitation, all reasonable fees, costs and expenses of appeals.
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20. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Investors' Rights
Agreement on the day and year first set forth above.
RAPTOR NETWORKS TECHNOLOGY, INC.
By:
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Name:
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Title:
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INVESTOR SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
INVESTORS:
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Print Name:
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Title:
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Address:
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EXHIBIT A
SCHEDULE OF INVESTORS
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