EYETEL IMAGING, INC. AMENDMENT NO. 3 TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
EYETEL
IMAGING, INC.
AMENDMENT
NO. 3 TO
AMENDED
AND RESTATED INVESTOR RIGHTS AGREEMENT
AMENDMENT
NO. 3 TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this
“Amendment”),
dated
as of September 5, 2007, by and among EyeTel Imaging, Inc., a Delaware
corporation (the “Company”),
and
the other persons and entities listed on the signature pages hereto (the
“Existing
Investors”),
amending
that certain Amended and Restated Investor Rights Agreement, dated as of January
14, 2004, as previously amended on February 8, 2006 and May 1, 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,
the
Company and the Existing Investors desire to modify the definition of
“Registrable Securities” in the Investor Rights Agreement as set forth
herein;
WHEREAS,
the
Company and the Existing Investors desire to modify Section 3 of the Investor
Rights Agreement to exclude the Company’s Initial Public Offering from the
registrations giving rise to piggyback registration rights pursuant thereto;
and
WHEREAS,
the
Company and the Existing Investors desire to modify Section 5.4 of the Investor
Rights Agreement in connection with certain registration rights granted to
the
representative to the underwriters of the Company’s Initial Public Offering
pursuant to that certain warrant to purchase Common Stock granted to the
Underwriter Representative in connection with the Initial Public Offering;
and
WHEREAS,
the
Existing Investors desire to approve and ratify certain registration rights
agreements entered into and to be entered into by the Company; and
WHEREAS,
the
Investor
Rights
Agreement may be amended (other than in respect of certain rights under Sections
11.1.3 and 11.3 and so long as no Holder is treated any differently than any
other Holder) with the written consent of the Company and Investors holding
a
majority of the outstanding Registrable Securities; and
WHEREAS,
the
Existing Investors 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. Definitions.
(a) The
following definitions are added to Section 1 of the Investor Rights
Agreement:
“‘Representative’s
Warrant’ means that certain Warrant to purchase Common Stock to be issued by the
Company to the Underwriter Representative in connection with the closing of
the
Company’s Initial Public Offering.”
“‘Underwriter
Representative’ means Maxim Group LLC or its successors or assigns under the
Representative’s Warrant.”
(b) The
definition of “Registrable Securities” set forth in Section 1.18 of the
Investor
Rights
Agreement is amended and restated to read in its entirety as
follows:
“‘Registrable
Securities’ means (i) any Common Stock issued or issuable upon conversion of the
Series B Preferred Stock (or upon the conversion or exercise of any other
securities of the Company convertible into or exercisable for Common Stock)
and
held by a Holder, and (ii) any Common Stock or other securities issued or
issuable with respect to any Registrable Securities by way of stock dividend
or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise, in each case held
by
any party to this Agreement. The Registrable Securities of any Holder shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement; (ii) such securities shall have been
distributed to the public pursuant to Rule 144; or (iii) such securities may
be
sold by such Holder and all of its Affiliates without registration under the
Securities Act pursuant to Rule 144(k) under the Securities Act or (iv) such
securities may be sold by such Holder and all of its Affiliates without
registration under the Securities Act pursuant to Rule 144 under the Securities
Act and such Holder and all of its Affiliates collectively own less than 1%
of
the Company’s outstanding Common Stock. For purposes of this Agreement, the
number of shares of Registrable Securities outstanding at any time shall be
determined by adding the number of shares of Common Stock or other securities
outstanding which are, and the maximum number of shares of Common Stock or
other
securities issuable pursuant to then convertible securities which upon issuance
would be, Registrable Securities. Notwithstanding the foregoing, Lighthouse
Warrant Common Stock shall be excluded from the preceding definition of
Registrable Securities solely for the purposes of the demand registration
provision of Section 2.1 of this Agreement.”
2. Section
3.1.
Section
3.1 of the Investor Rights Agreement is amended and restated to read in its
entirety as follows:
“3.1. Excluded
Transactions.
The
Company shall not be obligated to effect any registration of Registrable
Securities under this Section 3 incidental to the registration of any of its
securities in connection with mergers, acquisitions, exchange offers, dividend
reinvestment plans, stock option or other employee benefit plans or the
Company’s Initial Public Offering.”
3. Cutbacks.
Section
5.4 of the Investor Rights Agreement is amended and restated to read in its
entirety as follows:
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“5.4. Cutbacks.
5.4.1. Section
2 Cutbacks.
If the
managing underwriter advises the Company that the number of shares to be
included in a registration pursuant to Section 2 should be limited due to market
conditions or otherwise, (i) all shares other than Registrable Securities of
the
Holders shall first be excluded, and (ii) thereafter, if additional shares
must
be excluded from such registration, all Holders of Registrable Securities shall
share pro rata in the number of shares of Registrable Securities to be excluded
from such registration pursuant to this clause (ii), such sharing to be based
on
the respective numbers of Registrable Securities owned by such
Holders.
5.4.2. Section
3 Cutbacks.
If the
managing underwriter advises the Company that the number of shares to be
included in a registration pursuant to Section 3 should be limited due to market
conditions or otherwise.
(a) if
the
registration was initiated by the Company, (i) all shares held by shareholders
of the Company other than Holders of Registrable Securities and other than
the
Underwriter Representative shall first be excluded, (ii) next, if additional
shares must be excluded from such registration, all Holders of Registrable
Securities and the Underwriter Representative shall share pro rata in the number
of shares of Registrable Securities to be excluded from such registration
pursuant to this clause (ii), such sharing to be based on the respective numbers
of Registrable Securities owned by such Holders and (iii) thereafter, if
additional shares must be excluded from such registration, shares to be issued
by the Company shall be excluded; provided, however, that no exclusion provided
for herein shall reduce the amount of Registrable Securities to be included
in
such registration to an amount that is less than twenty-five (25) percent of
the
total amount of shares to be included in such registration, unless in connection
with the Initial Public Offering;
(b)
if
the registration was initiated by shareholders of the Company other than Holders
of Registrable Securities, (i) shares to be issued by the Company shall first
be
excluded, (ii) next, if additional shares must be excluded from such
registration, all Holders of Registrable Securities shall share pro rata in
the
number of shares of Registrable Securities to be excluded from such registration
pursuant to this clause (ii), such sharing to be based on the respective numbers
of Registrable Securities owned by such holders, and (iii) thereafter, if
additional shares must be excluded from such registration, shares to be
registered by shareholders of the Company other than Holders of Registrable
Securities shall be excluded pro rata based on the number of shares to be
determined or as agreed by such other shareholders among
themselves.”
4. Ratification
of Registration Rights Agreements.
In
accordance with Section 9 of the Investor Rights Agreement, the Existing
Investors hereby approve and ratify in all respects:
(a) the
Registration Rights Agreement Side Letter, dated as of April 26, 2007, by and
between the Company and Second City Capital Partners I, L.P.;
3
(b) the
Registration Rights Agreement Side Letter, dated as of April 26, 2007, by and
between the Company and Gibralt Capital Corporation;
(c) the
registration rights side letters to be entered into by and between the Company
and Bank Leumi LE-Israel (Schweiz), ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, Egatniv, LLC and
RL
Capital Partners, LP, granting each such investor “piggyback” registration
rights on terms and conditions substantially similar to those set forth in
the
Registration Rights Agreement Side Letters approved and ratified pursuant to
paragraphs (a)
and
(b)
of this
Section 4;
and
(d) the
Representative’s Warrant.
5. 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.
6. 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.
7. 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]
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment No. 3 to Amended and Restated
Investor
Rights
Agreement to be executed as of the date first set forth above.
EYETEL
IMAGING, INC.
By:
/s/
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
President and Chief Executive Officer
▇▇▇▇
CAPITAL VENTURE FUND 2001, LP
By:
▇▇▇▇
Capital Venture Partners, LP, its
General
Partner
By:
▇▇▇▇
Capital Venture Investors, LLC,
its
General Partner
By:
/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Managing Director
BROOKSIDE
CAPITAL PARTNERS FUND,
L.P.
By:
Brookside Capital Investors, L.P., its
General
Partner
By:
Brookside Capital Management, LLC,
its
General Partner
By:
/s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Managing Director
BCIP
ASSOCIATES III, LLC
By:
BCIP
Associates III, its
sole
member and manager
By:
▇▇▇▇
Capital Investors, LLC,
their
Managing Partner
By:
/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Managing Director
RGIP,
LLC
By:
/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Managing Member
RADIUS
VENTURE PARTNERS II, LP
By:
Radius Venture Partners II, LLC, its
General
Partner
By:
/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Member