EXHIBIT 10.15
EXHIBIT "A" TO THE
SECURITIES PURCHASE AGREEMENT
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of June 1,
2004, by and between RAPTOR NETWORKS TECHNOLOGY, INC., a Colorado corporation
(the "COMPANY"), and each of the entities whose names appear on the signature
pages hereof. Such entities are each referred to herein as an "INVESTOR" and,
collectively, as the "INVESTORS".
The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement, dated as of June 1, 2004 (the
"SECURITIES PURCHASE AGREEMENT"), to issue and sell to each Investor named
therein (i) shares (the "SHARES") of the Company's common stock, par value $.001
per share (the "COMMON STOCK"), (ii) a Series C Warrant in the form attached to
the Securities Purchase Agreement as Exhibit A (a "SERIES C WARRANT" and,
collectively, the "SERIES C WARRANTS") and (iii) a Series D Warrant in the form
attached to the Securities Purchase Agreement as Exhibit B (a "SERIES D WARRANT"
and, collectively, the "SERIES D Warrants"). The Series C Warrants and the
Series D Warrants are collectively referred to herein as the "WARRANTS".
The shares of Common Stock into which the Warrants are exercisable are
referred to herein as the "WARRANT SHARES".
In order to induce each Investor to enter into the Securities Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and under
applicable state securities laws. Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Securities
Purchase Agreement.
In consideration of each Investor entering into the Securities Purchase
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings specified:
(a) "EFFECTIVE DATE" means the date on which the Registration
Statement hereunder is declared effective by the Securities and Exchange
Commission (the "COMMISSION");
(b) "FILING DEADLINE" means December 15, 2004 following the
Closing Date;
(c) "HOLDER" means any person owning or having the right to
acquire, including without limitation through exercise of the Warrants,
Registrable Securities, including initially each Investor and thereafter any
permitted assignee thereof,
(d) "OUTSTANDING REGISTRABLE SECURITIES" means, at any time,
all Registrable Securities outstanding at such time.
(e) "REGISTRABLE SECURITIES" means the Shares and the Warrant
Shares and any other shares of Common Stock issuable pursuant to the exercise of
the Warrants (without regard to any limitation on such exercise), and any shares
of capital stock issued or issuable from time to time (with any adjustments) in
replacement of, in exchange for or otherwise in respect of the Shares or the
Warrant Shares; provided, however, that "Registrable Securities" shall not
include any such shares that have been sold pursuant to the Registration
Statement or Rule 144;
(f) "REGISTRATION DEADLINE" means the earlier of (i) the date
which is one hundred twenty (120) calendar days following the filing date of the
Company's Registration Statement or (ii) November 15, 2004.
(g) "REGISTRATION PERIOD" has the meaning set forth in
paragraph 2(b) below; and
(h) "REGISTRATION STATEMENT" means the certain Registration
Statement on Form SB-2 to be filed hereunder relating to resales of the
Registrable Securities.
2. REGISTRATION.
(a) REGISTRATION STATEMENT. On or before the Filing Deadline,
the Company shall prepare and file with the Commission a Registration Statement
on Form SB-2 as a "shelf' registration statement under Rule 415 under the
Securities Act ("RULE 415") covering the resale of a number of shares of common
stock equal to the number of shares required to be reserved pursuant to the
Securities Purchase Agreement as of the Closing Date. The Registration Statement
shall state, to the extent permitted by Rule 416 under the Securities Act, that
it also covers such indeterminate number of additional shares of Common Stock as
may become issuable upon the exercise of the Warrants in order to prevent
dilution resulting from stock splits, stock dividends or similar events. In the
event that the Company becomes eligible to use Form S-3 to register the resale
of Registrable Securities by the Holders, the Company shall use its best
efforts, as soon as practicable following the date on which it becomes eligible
to use Form S-3 (but in no event prior to the Filing Deadline), to convert the
Registration Statement to a Form S-3, or file a new registration statement on
such form, covering the greater of (i) the number of shares of Common Stock
covered by the Registration Statement and remaining unsold thereunder and (ii)
the number of Outstanding Registrable Securities.
(b) EFFECTIVENESS. The Company shall use its best efforts to
cause the Registration Statement to become effective as soon as practicable
following the filing thereof, but in no event later than the Registration
Deadline. The Company shall respond promptly to any and all comments made by the
staff of the Commission on the Registration Statement, and shall submit to the
Commission, within one (1) Business Day after the Company learns that no review
of the Registration Statement will be made by the staff of the Commission or
that the staff of the Commission has no further comments on the Registration
-2-
Statement, as the- case may be, a request for acceleration of the effectiveness
of the Registration Statement to a time and date not later than five (5)
Business Days after the submission of such request; provided that at any time
prior to the end of the Registration Deadline, the Company may delay its request
for effectiveness for a period of up to ten days if the Company is required to
file an Exchange Act report within such ten (10) day period in connection with a
proposed merger, reorganization or similar transaction involving the Company,
The Company will maintain the effectiveness of the Registration Statement until
the earlier to occur of (i) the date on which all of the Registrable Securities
eligible for resale thereunder have been publicly sold pursuant to either the
Registration Statement or Rule 144 and (ii) the date on which all of the
Registrable Securities remaining to be sold under the Registration Statement (in
the reasonable opinion of counsel to the Holder) may be immediately sold to the
public under Rule 144(k) or any successor provision (the period beginning on the
Closing Date and ending on the earlier to occur of (i) or (ii) above being
referred to herein as the "REGISTRATION PERIOD").
(c) REGISTRATION DEFAULT. If (A) the Registration Statement is
not filed on or before the Filing Deadline or declared effective by the
Commission on or before the Registration Deadline, (B) after the Registration
Statement has been declared effective by the Commission and during a period in
which an Allowed Delay (as hereinafter defined) is not in effect, sales of
Registrable Securities cannot be made by a Holder under the Registration
Statement for any reason not within the exclusive control of such Holder (other
than such Registrable Securities as are then freely saleable pursuant to Rule
144(k)), or (C) an amendment to the Registration Statement, or a new
registration statement, required to be filed pursuant to the terms of paragraph
4(k) below is not filed on or before the date required by such paragraph, (each
of (A), (B) and (C) being referred to herein as a "REGISTRATION DEFAULT"), the
Company shall make cash payments to each Holder equal to one percent (1.0%) of
the Purchase Price for the Securities then held by such Holder for each thirty
(30) day period in which a Registration Default occurs (prorated for any period
of less than thirty (30) days). Each such payment shall be made within ten (10)
Business Days following the last day of the calendar month in which a
Registration Default occurs. Any such payment shall be in addition to any other
remedies available to each Holder at law or in equity, whether pursuant to the
terms hereof, the Securities Purchase Agreement, or otherwise.
(d) ALLOWED DELAY. The Company may delay the disclosure of
material non-public information, and suspend the availability of the
Registration Statement, for no more than (i) five (5) consecutive Business Days
(each such five Business Day period to be separated by at least five Business
Days from the next such period, and such period, together with any other days on
which the availability of the Registration Statement is suspended, not to exceed
twenty (20) calendar days in the aggregate in any twelve (12) month period) or
(ii) twenty (20) calendar days in any twelve (12) month period, in the event of
a proposed merger, reorganization or similar transaction involving the Company,
as long as its board of directors (A) has determined, upon the advice of
counsel, that such information would be required to be disclosed in an offering
registered under the Securities Act and (B) reasonably deems it in the Company's
best interests not to disclose such information publicly (an "ALLOWED Delay").
In addition, until the Company becomes eligible to file a registration statement
on Form S-3, each time the Company files a post-effective amendment to the
Registration Statement for the purpose of updating the Registration Statement in
connection with the public filing by the Company of any report or other document
-3-
with the Commission (such post-effective amendment, an "UPDATING AMENDMENT"),
the Company may also suspend the availability of the Registration Statement
until such Updating Amendment is declared effective and any such suspension
shall also be deemed an Allowed Delay for all purposes under this Agreement as
long as such Updating Amendment is filed within fifteen (15) Business Days
following the event or circumstance requiring such amendment and the Company
promptly responds to any comments made thereon by the staff of the Commission.
The Company shall promptly (i) notify each Holder in writing of the existence of
material non-public information giving rise to an Allowed Delay (but in no
event, without the prior written consent of such Holder, shall the Company
disclose to such Holder any material non-public information), (ii) advise each
Holder in writing to cease all sales under the Registration Statement until the
termination of the Allowed Delay and (iii) notify each Holder in writing
immediately upon the termination or expiration of an Allowed Delay.
(e) ALLOCATION OF WARRANT SHARES. The initial number of
Warrant Shares included in any Registration Statement and each increase in the
number thereof included therein shall be allocated PRO RATA among the Holders
based on the aggregate number of Outstanding Registrable Securities held by each
Holder at the time the Registration Statement covering such initial number of
Registrable Securities or increase thereof is declared effective by the
Commission (without regard to any restriction on the ability of a Holder to
exercise such Holder's Warrants as of such date). In the event that a Holder
sells or otherwise transfers any of such Holder's Registrable Securities, each
transferee shall be allocated the portion of the then remaining number of
Registrable Securities included in such Registration Statement allocable to the
transferor. Any portion of the Registrable Securities included in such
Registration Statement and allocated to a Holder or other Person which no longer
holds any Registrable Securities shall be reallocated to the remaining Holders
pro rata based on the number of Outstanding Registrable Securities.
(f) REGISTRATION OF OTHER SECURITIES. During the period
beginning on the date hereof and ending sixty (60) days after the Effective
Date, the Company shall refrain from filing any new registration statement
(other than (i) the Registration Statement or (ii) a registration statement on
Form S-8 with respect to stock option plans and agreements and stock plans
currently in effect and disclosed pursuant to the terms of the Securities
Purchase Agreement).
3. PIGGYBACK REGISTRATION.
If at any time prior to the date that is 180 days after the expiration
of the Registration Period, (i) the Company proposes to register shares of
Common Stock under the Securities Act in connection with the public offering of
such shares for cash (a "PROPOSED REGISTRATION") other than a registration
statement on Form S-8 or Form S-4 or any successor or other forms promulgated
for similar purposes and (ii) a Registration Statement covering the sale of all
of the Registrable Securities is not then effective and available for sales
thereof by the Holders, the Company shall, at such time, promptly give each
Holder written notice of such Proposed Registration. Each Holder shall have ten
(10) Business Days from its receipt of such notice to deliver to the Company a
written request specifying the amount of Registrable Securities that such Holder
intends to sell and such Holder's intended method of distribution. Upon receipt
of such request, the Company shall use its best efforts to cause all Registrable
Securities which the Company has been requested to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
-4-
disposition in accordance with the intended methods of distribution specified in
the request of such Holder; provided, however, that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this Section
3 without obligation to the Holder. If, in connection with any underwritten
public offering for the account of the Company or for stockholders of the
Company that have contractual rights to require the Company to register shares
of Common Stock, the managing underwriter(s) thereof shall impose a limitation
on the number of shares of Common Stock which may be included in a registration
statement because, in the judgment of such underwriter(s), marketing or other
factors dictate such limitation is necessary to facilitate such offering, then
the Company shall be obligated to include in the registration statement only
such limited portion of the Registrable Securities with respect to which each
Holder has requested inclusion hereunder as such underwriter(s) shall permit.
Any exclusion of Registrable Securities shall be made pro rata among the Holders
seeking to include Registrable Securities in a registration statement, in
proportion to the number of Registrable Securities sought to be included by such
Holders; provided, however, that the Company shall not exclude any Registrable
Securities unless the Company has first excluded all outstanding securities, the
holders of which are not entitled to inclusion of such securities in the
registration statement or are not entitled to pro rata inclusion with the
Registrable Securities; and provided, further, that, after giving effect to the
immediately preceding proviso, any exclusion of Registrable Securities shall be
made pro rata with holders of other securities having the right to include such
securities in the registration statement.
4. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including without
limitation those pursuant to paragraphs 2(a), (b) and (c) above, the Company
shall:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to comply with the
provisions of the Securities Act or to maintain the effectiveness of the
Registration Statement during the Registration Period (subject to any Allowed
Delays), or as may be reasonably requested by a Holder in order to incorporate
information concerning such Holder or such Holder's intended method of
distribution;
(b) after (and if) the Common Stock has been listed on the
Nasdaq National Market, the Nasdaq SmallCap Market, the New York Stock Exchange,
the American Stock Exchange, or any other market or exchange, secure the listing
of all Registrable Securities on such market of exchange, and provide each
Holder with reasonable evidence thereof;
(c) upon the effectiveness of the Registration Statement,
furnish to each Holder such number of copies of the prospectus included in the
Registration Statement, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as such Holder
may reasonably request in order to facilitate the disposition of such Holder's
Registrable Securities;
(d) use all commercially reasonable efforts to register or
qualify the Registrable Securities under the securities or "blue sky" laws of
such jurisdictions within the United States as shall be reasonably requested in
writing from time to time by a Holder, and do any and all other acts or things
-5-
which may be necessary or advisable to enable such Holder to consummate the
public sale or other disposition of the Registrable Securities in such
jurisdictions; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such jurisdiction;
(e) in the event of an underwritten public offering of the
Registrable Securities, enter into (together with all Holders proposing to
distribute Registrable Securities through such underwriting) and perform its
obligations under an underwriting agreement, in usual and customary form
reasonably acceptable to the Company, with the managing underwriter of such
offering;
(f) notify each Holder immediately after becoming aware of the
occurrence of any event (but shall not, without the prior written consent of
such Holder, disclose to such Holder any facts or circumstances constituting
material non-public information) as a result of which the prospectus included in
the Registration Statement, as then in effect, contains an untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and (except during an Allowed Delay) as promptly as
practicable prepare, and file with the Commission and furnish to each Holder a
reasonable number of copies of a supplement or an amendment to such prospectus
as may be necessary so that such prospectus does not contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) use all commercially reasonable efforts to prevent the
issuance of any stop order or other order suspending the effectiveness of the
Registration Statement and, if such an order is issued, to obtain the withdrawal
thereof at the earliest possible time and to notify each Holder of the issuance
of such order and the resolution thereof;
(h) furnish to each Holder, on the date that the Registration
Statement, or any successor registration statement, becomes effective, (x) a
letter, dated such date, from the Company addressed to such Holder, confirming
such effectiveness and, to the knowledge of the Company, the absence of any stop
order, and (y) in the case of an underwriting, (A) a copy of an opinion, dated
such date, of such outside counsel, in such form and substance as is required to
be given to the underwriters, and (B) a copy of a letter, dated such date, from
the Company's independent certified public accountants, in such form and
substance as is required to be given by the Company's independent certified
public accountants to such underwriters;
(i) provide to each Holder and its representatives, upon
reasonable prior notice and execution of a reasonable non-disclosure agreement
by Holder, the opportunity to conduct a reasonable inquiry of the Company's
financial and other records during normal business hours and make available its
officers for questions regarding information which such Holder may reasonably
request in order to fulfill any due diligence obligation on its part;
(j) permit counsel for each Holder to review the Registration
Statement and all amendments and supplements thereto, and any comments made by
the staff of the Commission concerning such Holder and/or the transactions
-6-
contemplated by the Transaction Documents and the Company's responses thereto,
within a reasonable period of time (but in no event less than three (3) Business
Days after such Holder has received such documents) prior to the filing thereof
with the Commission (or, in the case of comments made by the staff of the
Commission, within a reasonable period of time following the receipt thereof by
the Company); and
(k) in the event that, at any time, the number of shares
available under the Registration Statement is insufficient to cover one hundred
twenty five percent 125% of the number of Outstanding Registrable Securities,
the Company shall promptly amend the Registration Statement or file a new
registration statement, in any event as soon as practicable, but not later than
the tenth (10th) day following notice from a Holder of the occurrence of such
event, so that the Registration Statement or such new registration statement, or
both, covers no less than one hundred fifty percent (150%) of such number of
Outstanding Registrable Securities. The Company shall use its best efforts to
cause such amendment and/or new Registration Statement to become effective as
soon as practicable following the filing thereof. Any Registration Statement
filed pursuant to this paragraph 4(k) shall state that, to the extent permitted
by Rule 416 under the Securities Act, such Registration Statement also covers
such indeterminate number of additional shares of Common Stock as may become
issuable upon exercise of the Warrants in order to prevent dilution resulting
from stock splits, stock dividends or similar events. Unless and until such
amendment or new Registration Statement becomes effective, each Holder shall
have the rights described in Section 2(c) above.
5. OBLIGATIONS OF EACH HOLDER.
In connection with the registration of Registrable Securities pursuant
to a Registration Statement, each Holder shall:
(a) timely furnish to the Company in writing such information
regarding itself and the intended method of disposition of such Registrable
Securities as the Company shall reasonably request in order to effect the
registration thereof.,
(b) upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraphs 4(f) or 4(g),
immediately discontinue any sale or other disposition of such Registrable
Securities pursuant to such Registration Statement until the filing of an
amendment or supplement as described in paragraph 4(f) or withdrawal of the stop
order referred to in paragraph 4(g), and, if such Holder has agreed in writing
to receive material, non-public information, to use commercially reasonable
efforts to maintain the confidentiality of such notice and its contents;
(c) in the event of an underwritten offering of such
Registrable Securities in which such Holder participates pursuant to Section 3
hereof, enter into a customary and reasonable underwriting agreement and execute
such other documents as the Company and the managing underwriter for such
offering may reasonably request;
(d) to the extent required by applicable law, deliver a
prospectus to the purchaser of Registrable Securities sold under the
Registration Statement;
-7-
(e) notify the Company when it has sold all of the Registrable
Securities held by it; and
(f) notify the Company in the event that any information
supplied by such Holder in writing for inclusion in such Registration Statement
or related prospectus is untrue or omits to state a material fact required to be
stated therein or necessary to make such information not misleading in light of
the circumstances then existing; immediately discontinue any sale or other
disposition of such Registrable Securities pursuant to such Registration
Statement until the filing of an amendment or supplement to such prospectus as
may be necessary so that such prospectus does not contain an untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing; and use commercially reasonable efforts to provide
the Company with updates information as may be appropriate to make such
amendment or supplement effective for such purpose.
6. INDEMNIFICATION.
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company shall
indemnify and hold harmless each Holder, the officers, directors, employees,
agents and representatives of such Holder, and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), against any losses, claims,
damages, liabilities or reasonable out-of-pocket expenses (whether joint or
several) (collectively, including legal or other expenses reasonably incurred in
connection with investigating or defending same, "LOSSES"), insofar as any such
Losses arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Subject to the provisions of paragraph 6(c) below, the
Company will reimburse such Holder, and each such officer, director, employee,
agent, representative or controlling person, for any legal or other
out-of-pocket expenses as reasonably incurred by any such entity or person in
connection with investigating or defending any Loss; provided, however, that the
foregoing indemnity shall not apply to amounts paid in settlement of any Loss if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be obligated to
indemnify any person for any Loss to the extent that such Loss is (i) based upon
and is in conformity with written information furnished by such person expressly
for use in such Registration Statement or (ii) based on a failure of such person
to deliver or cause to be delivered the final prospectus contained in the
Registration Statement and made available by the Company, if such delivery is
required by applicable law.
(b) To the extent permitted by law, each Holder who is named
in such Registration Statement as a selling stockholder, acting severally and
not jointly, shall indemnify and hold harmless the Company, the officers,
directors, employees, agents and representatives of the Company, and each
-8-
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act, against any Losses to the extent (and only to the
extent) that any such Losses are based upon and in conformity with written
information furnished by such Holder expressly for use in such Registration
Statement. Subject to the provisions of paragraph 6(c) below, such Holder will
reimburse any legal or other expenses as reasonably incurred by the Company and
any such officer, director, employee, agent, representative, or controlling
person, in connection with investigating or defending any such Loss; PROVIDED,
HOWEVER, that the foregoing indemnity shall not apply to amounts paid in
settlement of any such Loss if such settlement is effected without the consent
of such Holder (which consent shall not be unreasonably withheld); and provided,
further, that, in no event shall any indemnity under this subsection 6(b) exceed
the net proceeds resulting from the sale of the Registrable Securities sold by
such Holder under such Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 6, deliver to
the indemnifying party a written notice of the commencement thereof and" the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel for
all indemnified parties to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be inappropriate under applicable standards of professional conduct due to
actual or potential conflicting interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, to the extent prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 6 with respect to such action, but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 6 or with respect to any other action unless the indemnifying
party is materially prejudiced as a result of not receiving such notice.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party for any reason, the Company and each Holder agree, severally
and not jointly, to contribute to the aggregate Losses to which the Company or
such Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided, however, that in no case
shall such Holder be responsible for any amount in excess of the net proceeds
resulting from the sale of the Registrable Securities sold by it under the
Registration Statement. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or by such Holder. The Company and each Holder agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
-9-
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and
each officer, director, employee, agent or representative of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act and each officer, director, employee, agent or representative of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in an underwriting
agreement entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) Unless otherwise superceded by an underwriting agreement
entered into in connection with an underwritten public offering, the obligations
of the Company and each Holder under this Section 6 shall survive the exercise
of the Warrants in full, the completion of any offering or sale of Registrable
Securities pursuant to a Registration Statement under this Agreement, or
otherwise.
7. REPORTS.
With a view to making available to each Holder the benefits of Rule 144
under the Securities Act ("RULE 144") and any other similar rule or regulation
of the Commission that may at any time permit such Holder to sell securities of
the Company to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act;
(c) furnish to such Holder, so long as such Holder owns any
Registrable Securities, promptly upon written request (i) a written statement by
the Company, if true, that it has complied with the reporting requirements to
enable such Holder to rely on Rule 144(c), and that it has also complied with
the reporting requirements of the Securities Act and the Exchange Act, (ii) to
the extent not publicly available through the Commission's XXXXX database, a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested by such Holder in connection with such Holder's
compliance with any rule or regulation of the Commission which permits the
selling of any such securities without registration; and
(d) not at any time disclose material non-public information
to such Holder without first receiving such Holder's written consent to such
disclosure.
-10-
8. MISCELLANEOUS.
(a) EXPENSES OF REGISTRATION. Except as otherwise provided in
the Securities Purchase Agreement, all reasonable expenses, other than
underwriting discounts and commissions and fees and expenses of counsel and
other advisors to each Holder, incurred in connection with the registrations,
filings or qualifications described herein, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, the
fees and disbursements of counsel for the Company, and the fees and
disbursements incurred in connection with the opinion and letter described in
paragraph 4(h) hereof, shall be borne by the Company.
(b) AMENDMENT; WAIVER. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended or waived except
pursuant to a written instrument executed by the Company and the Holders of at
least two-thirds (2/3) of the number of Outstanding Registrable Securities. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each Holder, each future Holder and the Company. (c) NOTICES. Any notice,
demand or request required or permitted to be given by the Company or an
Investor pursuant to the terms of this Agreement shall be in writing and shall
be deemed delivered (i) when delivered personally or by verifiable facsimile
transmission, unless such delivery is made on a day that is not a Business Day,
in which case such delivery will be deemed to be made on the next succeeding
Business Day, (ii) on the next Business Day after timely delivery to an
overnight courier and (iii) on the Business Day actually received if deposited
in the U.S. mail (certified or registered mail, return receipt requested,
postage prepaid), addressed as follows:
IF TO THE COMPANY:
Raptor Networks Technology, Inc.
Attn: Xxx Xxxxxxxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxx X. Xxxxxxx, Esq.
000 X.X. Xxxxx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to a Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) ASSIGNMENT. Upon the transfer of any Warrant or
Registrable Securities by a Holder, the rights of such Holder hereunder with
respect to such securities so transferred shall be assigned automatically to the
transferee thereof, and such transferee shall thereupon be deemed to be a
-11-
"HOLDER" for purposes of this Agreement, as long as: (i) the Company is, within
a reasonable period of time following such transfer, furnished with written
notice of the name and address of such transferee, (ii) the transferee agrees in
writing with the Company to be bound by all of the provisions hereof, and (iii)
such transfer is made in accordance with the applicable requirements of the
Securities Purchase Agreement; PROVIDED, HOWEVER, that the registration rights
granted in this Agreement shall not be transferred to any person or entity that
receives any Warrant or Registrable Securities in a public transaction pursuant
to an effective registration statement under the Securities Act or pursuant to
Rule 144(k).
(e) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within the State of New York.
(g) HOLDER OF RECORD. A person is deemed to be a Holder
whenever such person owns or is deemed to own of record any Warrant or
Registrable Securities.
(h) ENTIRE AGREEMENT. This Agreement, the Securities Purchase
Agreement, the Warrants, and the other Transaction Documents constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Agreement, the Securities Purchase Agreement, the Warrants, and the other
Transaction Documents supersede all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof and thereof.
(i) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) THIRD PARTY BENEFICIARIES. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
[Signature Pages to Follow]
-12-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
RAPTOR NETWORKS TECHNOLOGY, INC.
By: _____________________________________
Name: Xxxxxx Xxxxxxxxxxxxxxx
Title: President
-13-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
_________________________________________
(Name of Investor)
By: _____________________________________
Name:
Title:
-14-
