EYETEL IMAGING, INC. AMENDMENT NO. 4 TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
EYETEL
IMAGING, INC.
AMENDMENT
NO. 4 TO
AMENDED
AND RESTATED INVESTOR RIGHTS AGREEMENT
AMENDMENT
NO. 4 TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this
“Amendment”),
dated
as of October 24, 2007, by and among EyeTel Imaging, Inc., a Delaware
corporation (the “Company”),
and
the other persons and entities listed on the signature pages hereto,
amending that certain Amended and Restated Investor Rights Agreement, dated
as
of January 14, 2004, as previously amended on February 8, 2006, May 1, 2007
and
September 5, 2007 (the “Investor
Rights Agreement”),
by and among the Company and each of the persons and entities listed on the
signature pages thereto. Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed
to
such terms in the
Investor Rights Agreement.
WHEREAS,
in
connection with a proposed initial public offering of Common Stock of the
Company, the parties hereto desire to amend the Investor
Rights
Agreement as set forth below;
WHEREAS,
the
Investor
Rights
Agreement may be amended (so long as it creates no additional obligations for,
and does not diminish the rights of, the Common Stockholders) with the written
consent of the Company and Investors holding a majority of the outstanding
Registrable Securities; and
WHEREAS,
the
persons and entities listed on the signature pages hereto constitute Investors
holding a majority of the outstanding Registrable Securities.
NOW,
THEREFORE,
in
consideration of the premises and mutual covenants contained herein, the parties
hereto hereby agree as follows:
1. Definition
of “Qualified Public Offering.”
The
definition of “Qualified Public Offering” set forth in Section 1.15 of the
Investor Rights Agreement is hereby amended and restated to read in its entirety
as follows:
“Qualified
Public Offering” means an underwritten public offering of shares of Common Stock
for the account of the Company.
2. Ratification;
References.
Except
as otherwise modified by this Amendment, the provisions of the Investor
Rights
Agreement shall continue to be and remain in full force and effect, and any
reference thereto shall hereafter mean the Investor
Rights
Agreement, as amended hereby.
3. Counterparts.
This
Amendment may be executed in one or more counterparts (including by facsimile).
Each such counterpart shall be deemed an original, and all of such counterparts
together shall be one instrument.
4. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York as applied to agreements among New York residents entered
into
and performed entirely within New York.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment No. 4 to Amended and Restated
Investor
Rights
Agreement to be executed as of the date first set forth above.
| EYETEL IMAGING, INC. | ||
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| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
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Print
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title:
President and Chief Executive Officer
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| ▇▇▇▇ CAPITAL VENTURE FUND 2001, LP | ||
| By: ▇▇▇▇ Capital Venture Partners, LP, its General Partner | ||
| By: ▇▇▇▇ Capital Venture Investors, LLC, its General Partner | ||
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
Managing Director
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| BROOKSIDE CAPITAL PARTNERS FUND, L.P. | ||
| By: Brookside Capital Investors, L.P., its General Partner | ||
| By: Brookside Capital Management, LLC, its General Partner | ||
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| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
Managing Director
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| BCIP ASSOCIATES III, LLC | ||
| By: BCIP Associates III, its sole member and manager | ||
| By: ▇▇▇▇ Capital Investors, LLC, their Managing Partner | ||
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
Managing Director
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| RGIP, LLC | ||
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| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title:
Managing Member
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| RADIUS VENTURE PARTNERS II, LP | ||
| By: Radius Venture Partners II, LLC, its General Partner | ||
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| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Managing Member
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