EXHIBIT 10.1
AMENDED AND RESTATED AMENDMENT AND EXCHANGE AGREEMENT
AMENDED AND RESTATED AMENDMENT AND EXCHANGE AGREEMENT (this "AGREEMENT"),
dated as of January 22, 2007, by and among Raptor Networks Technology, Inc., a
Colorado corporation, with headquarters located at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "COMPANY"), and ________________(the
"INVESTOR").
WHEREAS:
A. The Company and the Investor are party to that certain Amendment and
Exchange Agreement, dated as of January 18, 2007 by and among the Company and
the Investor (the "AMENDMENT AND EXCHANGE AGREEMENT"). The Company and the
Investor have agreed to amend and restate the Amendment and Exchange Agreement
to correct an error in the number of Replacement L-1 Warrants to be issued
pursuant to such Amendment and Exchange Agreement. The number of Series L-1
Warrants to be issued pursuant to the Amendment and Exchange Agreement is
amended and restated by this Agreement to the number set forth opposite the
Investor's name in column (4) on the Securities Schedule attached hereto. Also,
the Company and the Investor agreed to amend the definition of Initial Filing
Deadline contained in the Amended and Restated Registration Rights Agreement (as
defined below) to extend such deadline from January 23, 2007 until January 29,
2007.
B. The Company, the Investor and certain other investors (the "OTHER
INVESTORS", and collectively with the Investor, the "INVESTORS") are parties to
that certain Securities Purchase Agreement, dated as of July 30, 2006 (the
"EXISTING SECURITIES PURCHASE AGREEMENT"), pursuant to which, among other
things, the Investors purchased from the Company (i) senior convertible notes
(the "EXISTING NOTES"), which are convertible into shares of the Company's
common stock, par value $0.001 per share (the "COMMON STOCK") (the Existing
Notes as converted, the "EXISTING CONVERSION SHARES"), in accordance with the
terms thereof, (ii) Series L Warrants (the "EXISTING SERIES L WARRANTS"), which
are exercisable into shares of Common Stock (the "EXISTING SERIES L WARRANT
SHARES"); and (iii) Series M Warrants (the "EXISTING SERIES M WARRANTS", and
together with the Existing Series L Warrants, the "EXISTING WARRANTS"), which
are exercisable into shares of Common Stock (the "EXISTING SERIES M WARRANT
SHARES", and together with the Existing Series L Warrant Shares, the "EXISTING
WARRANT SHARES").
C. In connection with the execution and delivery of the Existing
Securities Purchase Agreement, the Company entered into that certain
Registration Rights Agreement, dated July 31, 2006 (the "EXISTING REGISTRATION
RIGHTS AGREEMENT"), by and among the Company and the Investors, pursuant to
which the Company agreed to provide certain registration rights with respect to
the Registrable Securities (as defined in the Existing Registration Rights
Agreement) under the Securities Act of 1933, as amended (the "1933 ACT"), and
the rules and regulations promulgated thereunder, and applicable state
securities laws.
D. Prior to the date hereof, the Investor and the Company have
determined that, as a result of the manner that the Securities and Exchange
Commission ("SEC") is applying policy, the Company would not be able to comply
with all of its obligations under the Existing Registration Rights Agreement.
E. The Company and the Investor desire to enter into this Agreement,
pursuant to which, among other things, (i) the Company and the Investor shall
amend and restate all of such Investor's Existing Notes for notes in the form
attached hereto as EXHIBIT A in the principal amount set forth opposite the
Investor's name in column (3) on the Securities Schedule (the "AMENDED AND
RESTATED NOTES"), which shall be convertible into Common Stock (the "AMENDED AND
RESTATED CONVERSION SHARES"), (ii) the Company and the Investor shall exchange
all of such Investor's Existing Series L Warrants for warrants in the form
attached hereto as EXHIBIT B (the "REPLACEMENT SERIES L-1 WARRANTS") which shall
be exercisable to acquire that number of shares of Common Stock set forth
opposite the Investor's name in column (4) on the Securities Schedule attached
hereto (the "REPLACEMENT SERIES L-1 WARRANT SHARES"), and (iii) the Company and
the Investor shall exchange all of such Investor's Existing Series M Warrants
for warrants in the form attached hereto as EXHIBIT C (the "REPLACEMENT SERIES
M-1 WARRANTS", and together with the Replacement Series L-1 Warrants, the
"REPLACEMENT WARRANTS") which shall be exercisable to acquire that number of
shares of Common Stock set forth opposite the Investor's name in column (5) on
the Securities Schedule attached hereto (the "REPLACEMENT SERIES M-1 WARRANT
SHARES", and together with the Replacement Series L-1 Warrant Shares, the
"REPLACEMENT WARRANT SHARES").
F. In addition, the Investor wishes to purchase, and the Company wishes
to sell, upon the terms and conditions stated in this Agreement, (i) an
additional aggregate principal amount of senior convertible notes, in
substantially the form attached hereto as EXHIBIT D (the "ADDITIONAL NOTES", and
together with the Amended and Restated Notes, the "NOTES"), in the amount set
forth opposite the Investor's name in column (6) on the Securities Schedule
attached hereto (which aggregate amount for all Investors shall be $1,600,000)
(as converted, collectively, the "ADDITIONAL CONVERSION SHARES" and together
with the Amended and Restated Conversion Shares, the "CONVERSION SHARES"), (ii)
additional warrants, in substantially the form attached hereto as EXHIBIT E (the
"SERIES L-2 WARRANTS"), to acquire that number of shares of Common Stock set
forth opposite the Investor's name in column (7) on the Securities Schedule
attached hereto (as exercised, the "SERIES L-2 WARRANT SHARES") and (iii)
additional warrants in substantially the form attached hereto as EXHIBIT F (the
"SERIES M-2 WARRANTS" and together with the Series L-2 Warrants the "ADDITIONAL
WARRANTS" and the Additional Warrants together with the Replacement Warrants,
the "WARRANTS") to acquire that number of shares of Common Stock set forth
opposite the Investor's name in column (8) on the Securities Schedule attached
hereto (as exercised, the "SERIES M-2 WARRANT SHARES", and together with the
Series L-2 Warrant Shares, the "ADDITIONAL WARRANT SHARES", and together with
the Replacement Warrant Shares, the "WARRANT SHARES").
G. The amendment and restatement of the Existing Notes for the Amended
and Restated Notes and the exchange of the Existing Warrants for the Replacement
Warrants is being made in reliance upon the exemption from registration provided
by Section 3(a)(9) of the 1933 Act.
2
H. The issuance of the Additional Notes and the Additional Warrants is
being made in reliance upon the exemption from securities registration afforded
by Section 4(2) of the 1933 Act and Rule 506 of Regulation D ("REGULATION D") as
promulgated by the SEC under the 1933 Act.
I. In connection with the execution and delivery of this Agreement, the
Company and the Investors are executing and delivering a Registration Rights
Agreement, substantially in the form attached hereto as EXHIBIT G (the "AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT"), which shall completely amend,
restate and supersede the Existing Registration Rights Agreement, pursuant to
which the Company has agreed to provide certain registration rights with respect
to the Registrable Securities (as defined in the Amended and Restated
Registration Rights Agreement) under the 1933 Act and the rules and regulations
promulgated thereunder, and applicable state securities laws.
J. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings ascribed to them in the Existing Securities
Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the Company and the Investor hereby agree as
follows:
1. AMENDMENT AND RESTATEMENT OF EXISTING NOTES; EXCHANGE OF EXISTING
WARRANTS; PURCHASE AND SALE OF ADDITIONAL NOTES AND ADDITIONAL
WARRANTS.
(a) AMENDMENT AND RESTATEMENT OF EXISTING NOTE; EXCHANGE OF
EXISTING WARRANTS. Subject to satisfaction (or waiver) of the conditions set
forth in Sections 5 and 6 below, at the closing contemplated by this Agreement
(the "CLOSING"), the Investor shall surrender to the Company its Existing Note
and its Existing Warrants and the Company shall issue and deliver to the
Investor (i) an Amended and Restated Note in the principal amount set forth
opposite the Investor's name in column (3) on the Securities Schedule, (ii) the
Series L-1 Warrants to acquire that number of Series L-1 Warrant Shares as is
set forth opposite the Investor's name in column (4) on the Securities Schedule
attached hereto, as such number has been amended pursuant to this Agreement and
(iii) the Series M-1 Warrants to acquire that number of Series M-1 Warrant
Shares as is set forth opposite the Investor's name in column (5) on the
Securities Schedule.
(b) PURCHASE OF ADDITIONAL NOTES AND ADDITIONAL WARRANTS. Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 5 and 6
below, the Company shall issue and sell to the Investor at the Closing, and the
Investor agrees to purchase from the Company on the Closing Date, (x) a
principal amount of Additional Notes as is set forth opposite the Investor's
name in column (6) on the Securities Schedule attached hereto, (y) Series L-2
Warrants to acquire that number of Series L-2 Warrant Shares as is set forth
opposite the Investor's name in column (7) on the Securities Schedule attached
hereto and (z) Series M-2 Warrants to acquire that number of Warrant Shares as
is set forth opposite the Investor's name in column (8) on the Securities
Schedule attached hereto. Notwithstanding any other provision of this Agreement
to the contrary, in the event that the Securities Schedule attached hereto
reflects that the Investor will not acquire any Additional Notes, Series L-2
Warrants or Series M-2 Warrants, then the Investor shall not have any
obligations whatsoever with respect to such Additional Notes, Series L-2
Warrants or Series M-2 Warrants.
3
(c) PURCHASE PRICE. The purchase price for the Additional Notes
and the Additional Warrants to be purchased by the Investor at the Closing (the
"PURCHASE PRICE") shall be the amount set forth opposite the Investor's name in
column (9) of the Securities Schedule attached hereto (the "PURCHASE PRICE").
The Investor shall pay $1.00 for each $1.00 of principal amount of Additional
Notes and the related Additional Warrants to be purchased at the Closing.
(d) CLOSING DATE. The date and time of the Closing (the "CLOSING
DATE") shall be 10:00 a.m., New York Time, on January 19, 2007, subject to
notification of satisfaction (or waiver) of the conditions to the Closing set
forth in Sections 5 and 6 below (or such other time and date as is mutually
agreed to by the Company and the Investor). The Closing shall occur on the
Closing Date at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(e) FORM OF PAYMENT. On the Closing Date, (i) the Investor shall
pay the Purchase Price to the Company for the Additional Notes and the
Additional Warrants to be issued and sold to the Investor at the Closing by wire
transfer of immediately available funds in accordance with the Company's written
wire instructions and (ii) the Company shall deliver to the Investor (A) the
Additional Notes (in the principal amounts as set forth opposite the Investor's
name in column (6) on the Securities Schedule attached hereto) which the
Investor is then purchasing, and (B) the Additional Warrants (in the amounts as
set forth opposite the Investor's name in columns (7) and (8) on the Securities
Schedule attached hereto) which the Investor is purchasing. In addition, the
Company shall deliver to the Investor (x) the Amended and Restated Notes and (y)
the Replacement Warrants. All of the foregoing securities shall be delivered in
each case duly executed on behalf of the Company and registered in the name of
the Investor or its designee (so long as any such designee is an "accredited
investor" as that term is defined in Rule 501(d) of Regulation D).
2. AMENDMENTS TO TRANSACTION DOCUMENTS.
(a) RATIFICATIONS. Except as otherwise expressly provided herein,
the Existing Securities Purchase Agreement and each other Transaction Document
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects, except that on and after the Closing Date (i) all
references in the Existing Securities Purchase Agreement to "this Agreement",
"hereto", "hereof", "hereunder" or words of like import referring to the
Securities Purchase Agreement shall mean the Existing Securities Purchase
Agreement as amended by this Agreement, (ii) all references in the other
Transaction Documents to the "Securities Purchase Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Securities
Purchase Agreement shall mean the Existing Securities Purchase Agreement as
amended by this Agreement, (iii) all references in any of the Transaction
Documents to the "Registration Rights Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Registration Rights
Agreement shall mean the Amended and Restated Registration Rights Agreement, and
(iv) all references in any Transaction Document to a "Buyer" shall include the
Investor hereunder.
4
(b) Each of the Transaction Documents are hereby amended as
follows:
(i) All references to Notes shall be amended to include
additionally the Notes as defined in this Agreement.
(ii) All references to "Conversion Shares" shall be amended
to include additionally the Conversion Shares as defined in this
Agreement.
(iii) All references to "Warrants" shall be amended to include
additionally the Warrants as defined in this Agreement.
(iv) All references to "Warrant Shares" shall be amended to
include additionally the Warrant Shares as defined in this Agreement.
(v) The defined term "Transaction Documents" is hereby
amended to include this Agreement and the Amended and Restated
Registration Rights Agreement.
(c) The reference in Section 4(q)(i) of the Existing Securities
Purchase Agreement to "150,000,000 shares" is hereby amended to instead refer to
"200,000,000 shares."
(d) The reference in Section 4(q)(i) of the Existing Securities
Purchase Agreement to "▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP" is hereby amended to instead
refer to "and the legal counsel of each Buyer"; provided, however, that any
legal fees of counsel to Cedar Hill Capital Partners Onshore, LP, and Cedar Hill
Capital Partners Offshore, Ltd. related to the review of the proxy statement
referenced in Section 4(q)(i) of the Existing Securities Purchase Agreement
shall be limited to $5,000 in the aggregate.
(e) The reference to "January 23, 2007" in the defined term
"Initial Filing Deadline" contained in the Amended and Restated Registration
Rights Agreement is hereby amended to instead refer to "January 29, 2007."
3. REPRESENTATIONS AND WARRANTIES
(a) INVESTOR BRING DOWN. The Investor hereby represents and
warrants to the Company with respect to itself only as set forth in Section 2 of
the Existing Securities Purchase Agreement as to this Agreement as if such
representations and warranties were made as of the date hereof and set forth in
their entirety in this Agreement. Such representations and warranties to the
transactions thereunder and the securities issued thereby are hereby deemed for
purposes of this Agreement to be references to the transactions hereunder and
the issuance of the securities hereby.
(b) COMPANY BRING DOWN. Except as set forth on the Amended and
Restated Schedules attached hereto, which shall amend and restate the Schedules
attached to the Existing Securities Purchase Agreement, the Company represents
and warrants to the Investor as set forth in Section 3 of the Securities
Purchase Agreement as if such representations and warranties were made as of the
date hereof and set forth in their entirety in this Agreement. Such
5
representations and warranties to the transactions thereunder and the securities
issued thereby are hereby deemed for purposes of this Agreement to be references
to the transactions hereunder and the issuance of the securities hereby,
references therein to "Closing Date" being deemed references to the Closing Date
as defined in Section 1(d) above, and references to "the date hereof" being
deemed references to the date of this Agreement.
(c) NO EVENT OF DEFAULT. The Company represents and warrants to
the Investor that after giving effect to the terms of this Agreement and the
Other Agreements (as defined below), no Default or Event of Default (as defined
in the Notes) shall have occurred and be continuing as of the date hereof.
(d) COMPANY NOTICE OF WITHDRAWN REGISTRATION STATEMENT. The
Company hereby notifies the Investors that: (i) the Company's registration
statement on Form SB-2 (File No. 333-136995) originally filed on August 30, 2006
and the related offering was withdrawn effective December 13, 2006; and (ii) the
Investors do not have the protection of Section 11 of the 1933 Act with respect
to the transactions contemplated by this Agreement.
(e) RIGHTS OF SECURITIES. The Additional Notes and the Additional
Warrants shall in no way provide superior or senior rights over those of the
Amended and Restated Notes and the Replacements Warrants, respectively
(including without limitation with respect to rights under the Amended and
Restated Registration Rights Agreement). The Company agrees that it will not
agree to favor or provide additional rights to the Additional Notes and the
Additional Warrants that are superior or senior over those of the Amended and
Restated Notes and the Replacements Warrants without the prior written consent
of the Investor and all the Other Investors.
4. CERTAIN COVENANTS AND AGREEMENTS; WAIVER
(a) BEST EFFORTS. Each party shall use its best efforts timely to
satisfy each of the conditions to be satisfied by it as provided in Sections 5
and 6 of this Agreement.
(b) FORM D AND BLUE SKY. The Company agrees to file a Form D with
respect to the Securities (as defined in the Existing Securities Purchase
Agreement) as required under Regulation D and to provide a copy thereof to the
Investor reasonably promptly after such filing. The Company shall, reasonably
promptly (and in no event later than 15 days) after the Closing Date, take such
action as the Company shall reasonably determine is necessary (taking into
account The National Securities Markets Improvement Act of 1996, as amended), in
order to obtain an exemption for or to qualify the Securities for sale to the
Investor at the Closing pursuant to this Agreement under applicable securities
or "Blue Sky" laws of the states of the United States (or to obtain an exemption
from such qualification), and shall provide evidence of any such action so taken
to the Investor reasonably promptly after such filing. The Company shall make
all filings and reports relating to the offer and sale of the Securities
required under applicable securities or "Blue Sky" laws of the states of the
United States following the Closing Date. The Company shall have no obligations
with respect to the securities laws of any jurisdiction outside of the United
States, regardless of the foreign residence of the Investor.
6
(c) DISCLOSURE OF TRANSACTIONS AND OTHER MATERIAL INFORMATION. On
or before 8:30 a.m., New York City time, on the first Business Day following the
date of this Agreement, the Company shall issue a press release and file a
Current Report on Form 8-K describing the terms of the transactions contemplated
by this Agreement in the form required by the 1934 Act and attaching the
material Transaction Documents not previously filed (including, without
limitation, this Agreement, the form of the Amended and Restated Notes, the form
of the Additional Notes, the form of the Replacement Warrants, the form of the
Additional Warrants and the form of the Amended and Restated Registration Rights
Agreement) (including all attachments, the "8-K FILING"). From and after the
filing of the 8-K Filing with the SEC, the Investor shall not be in possession
of any material, nonpublic information received from the Company, any of its
Subsidiaries or any of its respective officers, directors, employees or agents,
that is not disclosed in the 8-K Filing. The Company shall not, and shall cause
each of its Subsidiaries and its and each of their respective officers,
directors, employees and agents, not to, provide the Investor with any material,
nonpublic information regarding the Company or any of its Subsidiaries from and
after the filing of the 8-K Filing with the SEC without the express written
consent of the Investor or as may be required under the terms of the Transaction
Documents. If the Investor has, or believes it has, received any such material,
nonpublic information regarding the Company or any of its Subsidiaries, it shall
provide the Company with written notice thereof. The Company shall, within five
(5) Trading Days (as defined in the Note) of receipt of such notice, make public
disclosure of such material, nonpublic information. In the event of a breach of
the foregoing covenant by the Company, any of its Subsidiaries, or any of its or
their respective officers, directors, employees and agents, in addition to any
other remedy provided herein or in the Transaction Documents, the Investor shall
have the right to make a public disclosure, in the form of a press release,
public advertisement or otherwise, of such material, nonpublic information
without the prior approval by the Company, its Subsidiaries, or any of its or
their respective officers, directors, employees or agents. The Investor shall
not have any liability to the Company, its Subsidiaries, or any of its or their
respective officers, directors, employees, stockholders or agents for any such
disclosure. Subject to the foregoing, neither the Company, its Subsidiaries nor
the Investor shall issue any press releases or any other public statements with
respect to the transactions contemplated hereby; provided, however, that the
Company shall be entitled, without the prior approval of the Investor, to make
any press release or other public disclosure with respect to such transactions
(i) in substantial conformity with the 8-K Filing and contemporaneously
therewith and (ii) as is required by applicable law and regulations (provided
that in the case of clause (i) the Investor shall be consulted by the Company in
connection with any such press release or other public disclosure prior to its
release). Without the prior written consent of the Investor, and except as
contemplated by the prior subsection (i) or as required by applicable law or
regulation, neither the Company nor any of its Subsidiaries or affiliates shall
disclose the name of the Investor in any filing, announcement, release or
otherwise.
(d) FEES AND EXPENSES. The Company shall reimburse the Investor
for its legal and due diligence fees and expenses in connection with the
preparation and negotiation of this Agreement and transactions contemplated
thereby by paying any such amount to ______________ (the "INVESTOR COUNSEL
EXPENSE"), which amount may be withheld by the Investor from its Purchase Price
at the Closing. The Investor Counsel Expense shall be paid by the Company
whether or not the transactions contemplated by this Agreement are consummated.
Except as otherwise set forth in this Agreement, each party shall pay the fees
7
and expenses of its advisers, counsel, accountants and other experts, if any,
and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company
shall pay all stamp and other taxes and duties levied in connection with the
issuance of the Amended and Restated Notes, the Replacement Warrants, the
Additional Notes and the Additional Warrants.
(e) WAIVER. Effective as of the Closing, the Investor hereby
waives (i) any and all Filing Failures and/or Effectiveness Failures (as such
terms are defined in the Existing Registration Rights Agreement) as well as any
and all defaults, fees and penalties under the Existing Securities Purchase
Agreement, the Existing Notes, the Existing Warrants and Existing Registration
Rights Agreement which arose solely on the basis of such Filing Failures and/or
Effectiveness Failures, that have occurred prior to Closing and (ii) any
defaults, fees and penalties under the Existing Notes which may have arisen
solely as a result of the Company's failure to pay the Installment Amounts due
on November 30, 2006, December 1, 2006 and January 1, 2007 and the Company's
failure to pay Interest due on January 1, 2007.
5. CONDITIONS TO COMPANY'S OBLIGATIONS HEREUNDER.
The obligations of the Company to the Investor hereunder are subject
to the satisfaction of each of the following conditions, provided that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion by providing the Investor with prior written
notice thereof:
(a) The Investor shall have executed this Agreement and the
Amended and Restated Registration Rights Agreement and delivered the same to the
Company.
(b) The Investor shall have delivered to the Company the
Investor's Existing Note and Existing Warrants for cancellation.
(c) The Investor shall have delivered to the Company the Purchase
Price (less the amounts withheld pursuant to Section 4(d)) for the Additional
Notes and the related Additional Warrants being purchased by the Investor at the
Closing by wire transfer of immediately available funds pursuant to the wire
instructions provided by the Company.
(d) The representations and warranties of the Investor shall be
true and correct in all material respects as of the date when made and as of the
Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date) and the Investor shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Investor at or prior to the Closing Date.
6. CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER.
The obligations of the Investor hereunder are subject to the
satisfaction of each of the following conditions, provided that these conditions
are for the Investor's sole benefit and may be waived by the Investor at any
time in its sole discretion by providing the Company with prior written notice
thereof:
8
(a) The Company shall have executed this Agreement and the Amended
and Restated Registration Rights Agreement and delivered the same to the
Investor.
(b) The Company shall have executed and delivered to the Investor
the Amended and Restated Notes, the Replacement Warrants, the Additional Notes
and the Additional Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements
identical to this Agreement (the "OTHER AGREEMENTS") (other than proportional
changes (the "PROPORTIONATE CHANGES") in the numbers reflecting the different
dollar amount of such Investor's Notes and the number of Warrant Shares
underlying such Investor's Warrants), (ii) satisfied or waived all conditions to
the closings contemplated by such agreements, (iii) surrendered their Existing
Notes and Existing Warrants for Amended and Restated Notes and Replacement
Warrants identical to the Amended and Restated Notes and Replacement Warrants of
the Investor hereunder (other than the Proportionate Changes) and (iv) purchased
Additional Notes and Additional Warrants identical to the Additional Notes and
Additional Warrants of the Investor hereunder (other than the Proportionate
Changes).
(d) The Company shall have delivered to the Company's transfer
agent, with a copy to the Investors, a letter stating that the Irrevocable
Transfer Agent Instructions dated July 30, 2006 shall also apply to the Amended
and Restated Notes, Replacement Warrant Shares, Additional Notes and Additional
Warrants.
(e) The Investor shall have received the opinions of ▇▇▇▇▇ and
▇▇▇▇▇▇, LLP, the Company's outside counsel, and ▇▇▇▇ ▇▇▇▇▇ LLP, the Company's
special Colorado counsel, dated as of the Closing Date, in substantially the
form of EXHIBIT H attached hereto.
(f) The Company shall have delivered to the Investor a certificate
evidencing the formation and good standing of the Company and each of its
Subsidiaries in such entity's jurisdiction of formation issued by the Secretary
of State (or comparable office) of such jurisdiction, as of a date within 10
days of the Closing Date.
(g) The Company shall have delivered to the Investor a certificate
evidencing the Company's qualification as a foreign corporation and good
standing issued by the Secretary of State (or comparable office) of each
jurisdiction in which the Company is required to be so qualified, as of a date
within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified
copy of the Articles of Incorporation as certified by the Secretary of State (or
comparable office) of the State of Colorado within ten (10) days of the Closing
Date.
(i) The Company shall have delivered to the Investor a
certificate, executed by the Secretary of the Company and dated as of the
Closing Date, as to (i) the resolutions approving the transactions contemplated
hereby as adopted by the Board in a form reasonably acceptable to the Investor,
(ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as
of the Closing, in the form attached hereto as EXHIBIT I.
9
(j) The representations and warranties of the Company hereunder
and under each other Transaction Document shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date) and the Company shall have performed, satisfied and complied in
all respects with the covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the Company
at or prior to the Closing Date and after giving effect to the terms of this
Agreement and the Other Agreements, no default or Event of Default shall have
occurred and be continuing as of the Closing Date. The Investor shall have
received a certificate, executed by the Chief Executive Officer of the Company,
dated as of the Closing Date, to the foregoing effect and as to such other
matters as may be reasonably requested by the Investor in the form attached
hereto as EXHIBIT G.
(k) The Common Stock (I) shall be designated for quotation or
listed on the Principal Market and (II) shall not have been suspended, as of the
Closing Date, by the SEC or the Principal Market from trading on the Principal
Market nor shall suspension by the SEC or the Principal Market have been
threatened, as of the Closing Date, either (A) in writing by the SEC or the
Principal Market or (B) by falling below the minimum listing maintenance
requirements of the Principal Market.
(l) Subject to obtaining the Stockholder Approval, the Company
shall have obtained all governmental, regulatory or third party consents and
approvals, if any, necessary for the sale of the Securities.
(i) All rights of first refusal, participation, or similar rights
that would entitle any Person to participate in the transactions contemplated
hereby shall have expired or have been waived.
(m) The Company shall have delivered to the Investor such other
documents relating to the transactions contemplated by this Agreement as the
Investor or its counsel may reasonably request.
7. TERMINATION.
In the event that the Closing does not occur by January 22, 2007,
due to the Company's or the Investor's failure to satisfy the conditions set
forth in Sections 5 and 6 hereof (and the nonbreaching party's failure to waive
such unsatisfied conditions(s)), the nonbreaching party shall have the option to
terminate this Agreement at the close of business on such date without liability
of any party to any other party; PROVIDED, HOWEVER, if this Agreement is
terminated pursuant to this Section 7, the Company shall remain obligated to
reimburse the Investor for the expenses described in Section 4(d) above. Upon
such termination, the terms hereof shall be null and void and the parties shall
continue to comply with all terms and conditions of the Transaction Documents,
as in effect prior to the execution of this Agreement.
10
8. MISCELLANEOUS.
(a) COUNTERPARTS. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
(b) HEADINGS. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the interpretation of, this
Agreement.
(c) SEVERABILITY. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
(d) GOVERNING LAW; JURISDICTION; JURY TRIAL. All questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of New
York. Each party hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in The City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(e) NO 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.
11
(f) FURTHER ASSURANCES. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(g) NO STRICT CONSTRUCTION. The language used in this Agreement
will be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any party.
(h) ENTIRE AGREEMENT; EFFECT ON PRIOR AGREEMENTS; AMENDMENTS.
Except for the Transaction Documents (to the extent any such Transaction
Document in effect prior to this Agreement is not amended by this Agreement),
this Agreement supersedes all other prior oral or written agreements between the
Investor, the Company, their affiliates and Persons acting on their behalf with
respect to the matters discussed herein, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Investor makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be amended other than by an instrument in
writing signed by the Company. No provision hereof may be waived other than by
an instrument in writing signed by the party against whom enforcement is sought.
No consideration shall be offered or paid to any Person to amend or consent to a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration also is offered to all of the parties to the
Transaction Documents, holders of Notes or holders of the Warrants, as the case
may be. The Company has not, directly or indirectly, made any agreements with
any of the Investors relating to the terms or conditions of the transactions
contemplated by the Transaction Documents except as set forth in the Transaction
Documents.
(i) NOTICES. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one Business Day
after deposit with an overnight courier service, in each case properly addressed
to the party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
Raptor Networks Technology, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
12
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Investor, to its address and facsimile number set forth in the
Securities Schedule attached hereto, with copies to the Investor's
representatives as set forth on the Securities Schedule attached hereto or on
the signature page to this Agreement,
with a copy (for informational purposes only) to:
_________________________
_________________________
_________________________
_________________________
_________________________
or to such other address and/or facsimile number and/or to the attention of such
other Person as the recipient party has specified by written notice given to
each other party five (5) days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by an overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above, respectively.
(j) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns in accordance with the terms of the Existing Securities Purchase
Agreement.
(k) SURVIVAL. Unless this Agreement is terminated under Section 7,
the representations and warranties of the Company and the Investor contained
herein and the agreements and covenants set forth herein shall survive the
Closing.
(l) REMEDIES. The Investor and each holder of the Securities shall
have all rights and remedies set forth in the Transaction Documents and all
rights and remedies which such holders have been granted at any time under any
other agreement or contract and all of the rights which such holders have under
any law. Any Person having any rights under any provision of this Agreement
shall be entitled to enforce such rights specifically (without posting a bond or
other security), to recover damages by reason of any breach of any provision of
13
this Agreement and to exercise all other rights granted by law. Furthermore, the
Company recognizes that in the event that it fails to perform, observe, or
discharge any or all of its obligations under this Agreement, any remedy at law
may prove to be inadequate relief to the Investor. The Company therefore agrees
that the Investor shall be entitled to seek temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages and
without posting a bond or other security.
(m) INDEMNIFICATION. In consideration of the Investor's execution
and delivery of the Transaction Documents and acquiring the Securities
thereunder and in addition to all of the Company's other obligations under the
Transaction Documents, the Company shall defend, protect, indemnify and hold
harmless the Investor and each other holder of the Securities and all of their
stockholders, partners, members, officers, directors, employees and direct or
indirect investors and any of the foregoing Persons' agents or other
representatives (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the
"INDEMNITEES") from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Indemnitee is a party to
the action for which indemnification hereunder is sought), and including
reasonable attorneys' fees and disbursements (the "INDEMNIFIED LIABILITIES"),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a)
any misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in the Transaction Documents or
any other certificate, instrument or document contemplated hereby or thereby or
(c) any cause of action, suit or claim brought or made against such Indemnitee
by a third party (including for these purposes a derivative action brought on
behalf of the Company) and arising out of or resulting from (i) the execution,
delivery, performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (ii) any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of the issuance of the Securities, (iii) any
disclosure made by the Investor pursuant to Section 4(c), or (iv) the status of
the Investor or holder of the Securities as an investor in the Company pursuant
to the transactions contemplated by the Transaction Documents. To the extent
that the foregoing undertaking by the Company may be unenforceable for any
reason, the Company shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. Except as otherwise set forth herein, the mechanics and
procedures with respect to the rights and obligations under this Section 8(m)
shall be the same as those set forth in Section 6 of the Amended and Restated
Registration Rights Agreement. This Section 8(m) shall not apply to any
Indemnified Liabilities to the extent that such Indemnified Liabilities result
from or relate to the willful misconduct or gross negligence of the Investor.
(n) INDEPENDENT NATURE OF INVESTOR'S OBLIGATIONS AND RIGHTS. The
obligations of the Investor under any Transaction Document are several and not
joint with the obligations of any Other Investor, and the Investor shall not be
responsible in any way for the performance of the obligations of any Other
Investor under any Transaction Document. Nothing contained herein or in any
other Transaction Document, and no action taken by the Investor pursuant hereto,
shall be deemed to constitute the Investor and Other Investors as a partnership,
14
an association, a joint venture or any other kind of entity, or create a
presumption that the Investor and Other Investors are in any way acting in
concert or as a group with respect to such obligations or the transactions
contemplated by the Transaction Documents. The Company and the Investor confirm
that the Investor has independently participated in the negotiation of the
transactions contemplated hereby with the advice of its own counsel and
advisors. The Investor shall be entitled to independently protect and enforce
its rights, including, without limitation, the rights arising out of this
Agreement or out of any other Transaction Documents, and it shall not be
necessary for any Other Investor to be joined as an additional party in any
proceeding for such purpose.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the Investor and the Company have caused their
respective signature page to this Agreement to be duly executed as of the date
first written above.
COMPANY:
RAPTOR NETWORKS TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
16
IN WITNESS WHEREOF, the Investor and the Company have caused their
respective signature page to this Agreement to be duly executed as of the date
first written above.
INVESTOR:
By: /s/ [Authorized Representative of Investor]
-------------------------------------------
Name:
Title:
Copy to:
____________________________
____________________________
____________________________
____________________________
____________________________
[Signature Page to Amended and Restated Amendment and Exchange Agreement]
17
SECURITIES SCHEDULE
(1) (2) (3) (4) (5) (6)
AGGREGATE
AGGREGATE NUMBER OF NUMBER OF PRINCIPAL
PRINCIPAL AMOUNT SERIES L-1 SERIES M-1 AMOUNT OF
ADDRESS AND OF AMENDED AND WARRANT WARRANT ADDITIONAL
INVESTOR FACSIMILE NUMBER RESTATED NOTES SHARES SHARES NOTES
--------------------------------------------------------------------------------------------------
CASTLERIGG MASTER c/o Sandell Asset $4,322,946 13,652,498 4,437,062 $1,600,000
INVESTMENTS LTD. Management
----------------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Cem
Hacioglu/▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone:
212-603-5700
Residence: British
Virgin Islands
CEDAR HILL CAPITAL ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, $1,556,260 4,914,899 1,597,342 NA
PARTNERS ONSHORE, LP ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Residence:
New York
CEDAR HILL CAPITAL ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, $1,325,703 4,186,766 1,360,699 NA
PARTNERS OFFSHORE, 33rd Floor
LTD. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Residence:
Cayman Islands
(1) (7) (8) (9) (10)
LEGAL
NUMBER OF NUMBER OF REPRESENTATIVE'S
SERIES L-2 SERIES M-2 ADDRESS AND
WARRANT WARRANT PURCHASE FACSIMILE
INVESTOR SHARES SHARES PRICE NUMBER
-----------------------------------------------------------------------------------------------
CASTLERIGG MASTER 7,281,332 2,366,433 $1,600,000 ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
INVESTMENTS LTD. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
CEDAR HILL CAPITAL NA NA ▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLC
PARTNERS ONSHORE, LP ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
CEDAR HILL CAPITAL NA NA ▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLC
PARTNERS OFFSHORE, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Amendment and Exchange Agreement]
18