Exhibit 10.44
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is
dated as of June 13, 2008, by and among Vyyo Inc., a Delaware corporation (the
"Company"), and the undersigned Investors (each, an "Investor," and
collectively, the "Investors").
WHEREAS:
A.
In connection with the Securities Purchase
Agreements dated March 18, 2006, March 28, 2007, and June 13, 2008
(collectively, the "Securities Purchase Agreements") by and among the parties
hereto, as applicable, the Company has agreed, upon the terms and subject to the
conditions set forth in the Securities Purchase Agreements, to issue and sell to
the Investors:
(i) shares of the Company's common stock ("Common Shares"), par
value $0.0001 per share, (ii) convertible notes of the Company, including those
issued with even date hereof (the "Convertible Notes") which will, among other
things, be convertible into shares of Common Stock (the "Conversion Shares") in
accordance with the terms of the Convertible Notes, and (iii) Warrants (the
"Warrants") have been exercised to purchase additional shares of Common Shares
(as exercised collectively, the "Warrant Shares");
B.
Goldman Sachs Investment Partners Master
Fund, L.P. ("Goldman") possesses registration rights and other rights pursuant
to an Amended and Restated Registration Rights Agreement dated as of March 28,
2007, between the Company and Goldman (the "Prior Agreement");
C.
Goldman is a Required Holder (as defined
in the Prior Agreement), and desires to terminate the Prior Agreement and to
accept the rights created pursuant hereto in lieu of the rights granted to it
under the Prior Agreement; and
D.
The Investors are parties to the
Securities Purchase Agreement of even date herewith among the Company and the
Investors, certain of the Company's and such Investors' obligations under which
are conditioned upon the execution and delivery of this Agreement by such
Investors and the Company.
NOW, THEREFORE, in consideration of the mutual promises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the
Investors hereby agree as follows:
1.
DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the Securities Purchase Agreements.
As used in
this Agreement, the following terms shall have the following meanings:
(A)
"BUSINESS DAY" MEANS ANY DAY OTHER THAN
SATURDAY, SUNDAY OR ANY OTHER DAY ON WHICH COMMERCIAL BANKS IN THE CITY OF NEW
YORK ARE AUTHORIZED OR REQUIRED BY LAW TO REMAIN CLOSED.
(B)
"CLOSING DATE" SHALL MEAN THE DATE OF THIS
AGREEMENT.
(C)
"EFFECTIVE DATE" MEANS THE DATE THE
REGISTRATION STATEMENT (AS DEFINED BELOW) HAS BEEN DECLARED EFFECTIVE BY THE
SEC.
(D)
"EFFECTIVENESS DEADLINE" MEANS THE DATE
WHICH IS ONE HUNDRED AND EIGHTY (180) DAYS AFTER THE AFTER THE CLOSING DATE.
(E)
"INVESTOR" MEANS AN INVESTOR OR ANY
TRANSFEREE OR ASSIGNEE THEREOF TO WHOM AN INVESTOR ASSIGNS ITS RIGHTS UNDER THIS
AGREEMENT AND WHO AGREES TO BECOME BOUND BY THE PROVISIONS OF THIS AGREEMENT IN
ACCORDANCE WITH SECTION 12