<PAGE>
EXECUTION COPY
Exhibit 10.8
AMENDED AND RESTATED PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of July 28, 2008
(as
amended, restated, supplemented or otherwise modified, this
"AGREEMENT"), made
by each entity listed as a pledgor on the signature pages hereto
(each a
"PLEDGOR" and collectively, the "PLEDGORS"), in favor of CASTLERIGG
MASTER
INVESTMENTS LTD., a company organized under the laws of the British
Virgin
Islands, in its capacity as collateral agent (in such capacity, the
"COLLATERAL
AGENT") for the "Buyers" (as defined below) party to the Purchase
Agreements
referred to below.
W I T N E S S E T H:
WHEREAS, Raptor Networks Technology, Inc., a Colorado corporation
(the
"COMPANY") and each party listed as a "Buyer" on the Schedule of
Buyers attached
to the 2006 SPA referred to below (collectively, the "2006 BUYERS")
are parties
to a Securities Purchase Agreement, dated as of July 30, 2006 (as
amended,
restated, supplemented or otherwise modified from time to time, the
"2006 SPA")
pursuant to which the Company has sold, and the 2006 Buyers have
purchased, the
notes issued pursuant thereto (as such notes may be amended,
restated, replaced
or otherwise modified from time to time in accordance with the
terms thereof,
collectively, the "2006 NOTES");
WHEREAS, the Company and each party listed as a "Buyer" on the
Schedule
of Buyers attached to the 2007 SPA referred to below (collectively,
the "2007
BUYERS") are parties to a Securities Purchase Agreement, dated as
of July 31,
2007 (as amended, restated, supplemented or otherwise modified from
time to
time, the "2007 SPA") pursuant to which the Company has sold, and
the 2007
Buyers have purchased, the notes issued pursuant thereto (as such
notes may be
amended, restated, replaced or otherwise modified from time to time
in
accordance with the terms thereof, collectively, the "2007
NOTES");
WHEREAS, the Company and each party listed as a "Buyer" on the
Schedule
of Buyers attached to the March 2008 SPA referred to below
(collectively, the
"MARCH 2008 BUYERS") are parties to the Securities Purchase
Agreement, dated as
of March 31, 2008 (as amended, restated, supplemented or otherwise
modified from
time to time, the "MARCH 2008 SPA"), pursuant to which the Company
has sold, and
the March 2008 Buyers have purchased, the notes issued pursuant
thereto (as such
notes may be amended, restated, replaced or otherwise modified from
time to time
in accordance with the terms thereof, collectively, the "MARCH 2008
NOTES");
WHEREAS, in connection with the March 2008 SPA and the 2007 SPA and
to
secure the 2007 Notes and the March 2008 Notes issued thereunder,
(a) each
Pledgor (other than the Company) has executed and delivered the
Guaranty, dated
as of March 31, 2008 (the "ORIGINAL GUARANTY"), pursuant to which
such Pledgor
has guaranteed all of the obligations (collectively, the "ORIGINAL
SECURED
OBLIGATIONS") of the Company under the 2007 SPA and the March 2008
SPA and the
other "Transaction Documents" (as such term is defined in each of
the 2007 SPA
and the March 2008 SPA, such Transaction Documents, as amended,
restated,
<PAGE>
supplemented or otherwise modified, are hereinafter referred to as
the "ORIGINAL
SECURED TRANSACTION DOCUMENTS"), (b) each Pledgor has executed and
delivered the
Pledge Agreement, dated as of March 31, 2008 (the "ORIGINAL PLEDGE
AGREEMENT"),
pursuant to which such Pledgor has granted to the Collateral Agent,
for the
benefit of the 2007 Buyers and the March 2008 Buyers, a perfected
first priority
security interest in and a lien on the Collateral described in the
Original
Pledge Agreement and (c) each Pledgor has executed and delivered
the Security
Agreement, dated as of March 31, 2008 (the "ORIGINAL SECURITY
AGREEMENT" and,
together with the Original Guaranty and the Original Pledge
Agreement,
collectively, the "ORIGINAL SECURITY DOCUMENTS"), pursuant to which
such Pledgor
has granted to the Collateral Agent, for the benefit of the 2007
Buyers and the
March 2008 Buyers, a perfected first priority security interest in
and a lien on
the Collateral described in the Original Security Agreement;
WHEREAS, it being the intention of the parties hereto that (a)
the
Original Secured Obligations outstanding as of the date hereof
shall continue
and remain in effect pursuant to the Original Secured Transaction
Documents (as
amended hereby) and (b) the Notes (as defined below) will rank
senior to all
outstanding and future indebtedness of the Pledgors;
WHEREAS, the Company and each party listed as a "Buyer" on the
Schedule
of Buyers attached to the July 2008 SPA referred to below
(collectively, the
"JULY 2008 BUYERS" and, together with the 2006 Buyers, the 2007
Buyers and the
March 2008 Buyers, each a "BUYER" and collectively, the "BUYERS")
intend to
enter into that certain Securities Purchase Agreement, dated as of
July __, 2008
(as amended, restated, supplemented or otherwise modified from time
to time, the
"JULY 2008 SPA" and, together with the 2006 SPA, the 2007 SPA and
the March 2008
SPA, each a "PURCHASE AGREEMENT", and collectively the "PURCHASE
AGREEMENTS"),
pursuant to which the Company will sell, and the 2008 Buyers will
purchase, the
notes issued pursuant thereto (as such notes may be amended,
restated, replaced
or otherwise modified from time to time in accordance with the
terms thereof,
collectively, the "JULY 2008 NOTES" and, together with the 2006
Notes, the 2007
Notes and the March 2008 Notes, each a "NOTE" and collectively, the
"NOTES");
WHEREAS, it is a condition precedent to the July 2008 Buyers
purchasing
the July 2008 Notes that (a) each Original Security Document shall
have been
amended and restated in its entirety to secure the Original Secured
Obligations
as well as all of the Company's obligations under the 2006 SPA, the
2006 Notes,
the July 2008 SPA, the July 2008 Notes and the other "Transaction
Documents" (as
defined in the July 2008 SPA, such Transaction Documents, as
amended, restated,
supplemented or otherwise modified, together with the Original
Secured
Transaction Documents, collectively the "TRANSACTION DOCUMENTS")
and (b) each of
the Pledgors and, with respect to the Security Agreement and the
Pledge
Agreement referred to below, the Company shall have executed and
delivered to
the Collateral Agent for the benefit of itself and the Buyers (i)
this
Agreement, which amends and restates the Original Pledge Agreement,
granting the
Collateral Agent a perfected first priority security interest in,
and a lien on,
such Pledgor's interest in the Collateral (as defined below), (ii)
the Amended
and Restated Guaranty, dated as of the date hereof (as amended,
restated,
supplemented or otherwise modified, the "GUARANTY"), amending and
restating the
Original Guaranty and guaranteeing all present and future
obligations of the
Company under the Purchase Agreements, the Notes and the other
Transaction
Documents and (iii) the Amended and Restated Security Agreement,
dated as of the
date hereof (as amended, restated, supplemented or otherwise
modified, the
"SECURITY AGREEMENT"), amending and restating the Original Security
Agreement
and granting the Collateral Agent a perfected first priority
security interest
in, and a lien on, such Pledgor's personal property described in
the Security
Agreement;
-2-
<PAGE>
WHEREAS, the Pledgors are mutually dependent on each other in
the
conduct of their respective businesses as an integrated operation,
with the
credit needed from time to time by each Pledgor often being
provided through
financing obtained by the other Pledgors and the ability to obtain
such
financing being dependent on the successful operations of all of
the Pledgors as
a whole; and
WHEREAS, each Pledgor has determined that the execution, delivery
and
performance of this Agreement directly benefits, and is in the best
interest of,
such Pledgor.
NOW, THEREFORE, in consideration of the premises and the
agreements
herein and in order to induce the Buyers to perform under the
Purchase
Agreements, each Pledgor agrees with the Collateral Agent as
follows:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
(a) DEFINITIONS. Reference is made to the Purchase Agreements
and
the Notes for a statement of terms thereof. All capitalized terms
used in this
Agreement which are defined in the Purchase Agreements or the Notes
or in
Article 8 or Article 9 of the Uniform Commercial Code as in effect
from time to
time in the State of New York (the "CODE"), and which are not
otherwise defined
herein shall have the same meanings herein as set forth therein;
provided, that
terms used herein which are defined in the Code as in effect in the
State of New
York on the date hereof shall continue to have the same meaning
notwithstanding
any replacement or amendment of such statute.
(b) Rules of Interpretation. Except as otherwise expressly
provided in this Agreement, the following rules of interpretation
apply to this
Agreement: (i) the singular includes the plural and the plural
includes the
singular; (ii) "or" and "any" are not exclusive and "include" and
"including"
are not limiting; (iii) a reference to any agreement or other
contract includes
permitted supplements and amendments; (iv) a reference to a law
includes any
amendment or modification to such law and any rules or regulations
issued
thereunder; (v) a reference to a person includes its permitted
successors and
assigns; and (vi) a reference in this Agreement to an Article,
Section, Annex,
Exhibit or Schedule is to the Article, Section, Annex, Exhibit or
Schedule of
this Agreement.
SECTION 2. PLEDGE AND GRANT OF SECURITY INTEREST. As collateral
security for all of the Obligations (as defined in Section 3
hereof), each of
the Pledgors hereby pledges and assigns and grants to the
Collateral Agent a
continuing security interest in, and Lien on, all of such Pledgor's
right, title
and interest in and to the following (collectively, the
"COLLATERAL"):
(a) all present, as set forth in Schedule I, and all future,
issued and outstanding shares of capital stock, or other equity or
investment
securities of, or partnership, membership, or joint venture
interests in, each
Subsidiary (as defined in the Purchase Agreements), whether now
owned or
hereafter acquired by such Pledgor and whether or not evidenced or
represented
by any stock certificate, certificated security or other
instrument, together
with the certificates representing such equity interests, all
options and other
rights, contractual or otherwise, in respect thereof and all
dividends,
- 3 -
<PAGE>
distributions, cash, instruments, investment property and any other
property
(including, but not limited to, any stock dividend and any
distribution in
connection with a stock split) from time to time received,
receivable or
otherwise distributed in respect of or in exchange for any or all
of the
foregoing and all cash and noncash proceeds thereof (collectively,
the "PLEDGED
SHARES");
(b) all present and future increases, profits, combinations,
reclassifications, and substitutes and replacements for all or part
of the
foregoing Collateral heretofore described;
(c) all investment property, financial assets, securities,
capital
stock, other equity interests, stock options and commodity
contracts of such
Pledgor, all notes, debentures, bonds, promissory notes or other
evidences of
indebtedness payable or owing to such Pledgor, and all other assets
now or
hereafter received or receivable with respect to the foregoing;
(d) all securities entitlements of such Pledgor in any and all of
the
foregoing; and
(e) all proceeds (including proceeds of proceeds) of any and all of
the
foregoing;
in each case, whether now owned or hereafter acquired by such
Pledgor and
howsoever its interest therein may arise or appear (whether by
ownership,
security interest, Lien, claim or otherwise).
Notwithstanding anything herein to the contrary, the term
"Collateral" shall not
include in the case of a Subsidiary of such Pledgor organized under
the laws of
a jurisdiction other than the United States, any of the states
thereof or the
District of Columbia (a "FOREIGN SUBSIDIARY"), more than 65% (or
such greater
percentage that, due to a change in applicable law after the date
hereof, (i)
would not reasonably be expected to cause the undistributed
earnings of such
Foreign Subsidiary as determined for United States federal income
tax purposes
to be treated as a deemed dividend to such Foreign Subsidiary's
United States
parent and (ii) would not reasonably be expected to cause any
material adverse
tax consequences) of the issued and outstanding shares of Capital
Stock entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
(it being
understood and agreed that the Collateral shall include 100% of the
issued and
outstanding shares of Capital Stock not entitled to vote (within
the meaning of
Treas. Reg. Section 1.956-2(c)(2)) or other equity interest of such
Foreign
Subsidiary). "Capital Stock" means (i) with respect to any Person
that is a
corporation, any and all shares, interests, participations or other
equivalents
(however designated and whether or not voting) of corporate stock,
and (ii) with
respect to any Person that is not a corporation, any and all
partnership,
membership or other equity interests of such Person. "Person" means
an
individual, corporation, limited liability company, partnership,
association,
joint-stock company, trust, unincorporated organization, joint
venture or other
enterprise or entity or Governmental Authority. "Governmental
Authority" means
any nation or government, any Federal, state, city, town,
municipality, county,
- 4 -
<PAGE>
local or other political subdivision thereof or thereto and any
department,
commission, board, bureau, instrumentality, agency or other entity
exercising
executive, legislative, judicial, taxing, regulatory or
administrative powers or
functions of or pertaining to government. "Lien" means any
mortgage, lien,
pledge, charge, security interest or other encumbrance upon or in
any Collateral
(including accounts and contract rights).
The Pledgors agree that the pledge of the shares of Capital Stock
acquired by a
Pledgor of any and all Persons now or hereafter existing who is a
Foreign
Subsidiary may be supplemented by one or more separate pledge
agreements, deeds
of pledge, share charges, or other similar agreements or
instruments, executed
and delivered by the relevant Pledgors in favor of the Collateral
Agent, which
pledge agreements will provide for the pledge of such shares of
Capital Stock in
accordance with the laws of the applicable foreign jurisdiction.
With respect to
such shares of Capital Stock, the Collateral Agent may, at any time
and from
time to time, in its sole discretion, take actions in such foreign
jurisdictions
that will result in the perfection of the Lien created in such
shares of Capital
Stock.
SECTION 3. Security for Obligations. The security interest
created
hereby in the Collateral constitutes continuing collateral security
for all of
the following obligations, whether now existing or hereafter
incurred (the
"OBLIGATIONS"):
(a) (i) until the Satisfaction in Full of the Obligations (as
defined below), the payment by the Company, as and when due and
payable (by
scheduled maturity, required prepayment, acceleration, demand or
otherwise in
accordance with the terms of the Notes), of all amounts from time
to time owing
by it in respect of the Purchase Agreements, the Notes and the
other Transaction
Documents, and (ii) the payment by each of the Guarantors (as
defined in the
Guaranty), as and when due and payable of all "Guaranteed
Obligations" under
(and as defined in) the Guaranty, including, without limitation,
(A) all
principal of and interest on the Notes (including, without
limitation, all
interest that accrues after the commencement of any bankruptcy
proceeding of the
Pledgors, whether or not the payment of such interest is
unenforceable or is not
allowable due to the existence of such bankruptcy proceeding), and
(B) all fees,
commissions, expense reimbursements, indemnifications and all other
amounts due
or to become due under any of the Transaction Documents; and
(b) until the Satisfaction in Full of the Obligations, the due
performance and observance by each Pledgor of all of its other
obligations from
time to time existing in respect of any of the Transaction
Documents.
As used herein, "Satisfaction in Full of the Obligations" means
the
satisfaction in full of all indebtedness and other obligations owed
by the
Company to the Buyers under the Notes and the other Transaction
Documents
(including, without limitation, all principal, interest (including,
without
limitation, all interest that accrues after the commencement of any
Insolvency
Proceeding of any Pledgor, whether or not the payment of such
interest is
unenforceable or is not allowable due to the existence of such
Insolvency
Proceeding), and fees, but excluding obligations under the
Transaction Documents
(other than the Notes) that may arise after the payment or
satisfaction in full
of the Notes) by means of cash payment, conversion into equity
securities of the
Company, waiver of obligations by the Buyers, proceeds from
Collateral (as
defined in the Security Agreement) paid to or retained by Buyers in
accordance
with the Transaction Documents, and/or such other satisfaction as
may be
contemplated by the Notes or the other Transaction Documents or as
otherwise
agreed to by the Buyers, or any combination of the foregoing, in
each case in
accordance with the Notes or the applicable Transaction
Documents.
- 5 -
<PAGE>
SECTION 4. Delivery of the Collateral.
(a) All certificates currently representing the Pledged Shares
shall be delivered to the Collateral Agent on or prior to the
execution and
delivery of this Agreement. All other promissory notes,
certificates and
instruments constituting Collateral from time to time or required
to be pledged
to the Collateral Agent pursuant to the terms of this Agreement
(the "ADDITIONAL
COLLATERAL") shall be delivered to the Collateral Agent promptly
upon receipt
thereof by or on behalf of any of the Pledgors. All such promissory
notes,
certificates and instruments shall be held by the Collateral Agent
pursuant
hereto and shall be delivered in suitable form for transfer by
delivery or shall
be accompanied by duly executed instruments of transfer or
assignment or undated
stock powers executed in blank, all in form and substance
reasonably
satisfactory to the Collateral Agent. If any Collateral consists
of
uncertificated securities, unless the immediately following
sentence is
applicable thereto, the Pledgors shall cause the Collateral Agent
(or its
designated custodian, nominee or other designee) to become the
registered holder
thereof, or cause each issuer of such securities to agree that it
will comply
with instructions originated by the Collateral Agent (or its
designated
custodian, nominee or other designee) with respect to such
securities without
further consent by the Pledgors. If any Collateral consists of
securities
entitlements, the Pledgors shall transfer such securities
entitlements to the
Collateral Agent (or its designated custodian, nominee or other
designee) or
cause the applicable securities intermediary to agree that it will
comply with
entitlement orders by the Collateral Agent (or its designated
custodian, nominee
or other designee) without further consent by the Pledgors.
(b) Promptly upon the receipt by any Pledgor of any Additional
Collateral, a Pledge Amendment, duly executed by such Pledgor, in
substantially
the form of Annex I hereto (a "PLEDGE AMENDMENT"), shall be
delivered to the
Collateral Agent, in respect of the Additional Collateral which is
or are to be
pledged pursuant to this Agreement, which Pledge Amendment shall
from and after
delivery thereof constitute part of Schedule I hereto. Each Pledgor
hereby
authorizes the Collateral Agent to attach each Pledge Amendment to
this
Agreement and agrees that all promissory notes, certificates or
instruments
listed on any Pledge Amendment shall for all purposes hereunder
constitute
Collateral and such Pledgor shall be deemed upon delivery thereof
to have made
the representations and warranties set forth in Section 5 with
respect to such
Additional Collateral as of the date of the Pledge Amendment.
(c) If any Pledgor shall receive, by virtue of such Pledgor's
being or having been an owner of any Collateral, any (i) stock
certificate
(including, without limitation, any certificate representing a
stock dividend or
distribution in connection with any increase or reduction of
capital,
reclassification, merger, consolidation, sale of assets,
combination of shares,
stock split, spin-off or split-off), promissory note or other
instrument, (ii)
option or right, whether as an addition to, substitution for, or in
exchange
for, any Collateral, or otherwise, (iii) dividends payable in cash
(except such
dividends permitted to be retained by such Pledgor pursuant to
Section 7 hereof)
or in securities or other property or (iv) dividends,
distributions, cash,
instruments, investment property and other property in connection
with a partial
- 6 -
<PAGE>
or total liquidation or dissolution or in connection with a
reduction of
capital, capital surplus or paid-in surplus, such Pledgor shall
receive such
stock certificate, promissory note, instrument, option, right,
payment or
distribution in trust for the benefit of the Collateral Agent,
shall segregate
it from such Pledgor's other property and shall deliver it
forthwith to the
Collateral Agent in the exact form received, with any necessary
endorsement
and/or appropriate stock powers duly executed in blank, to be held
by the
Collateral Agent as Collateral and as further collateral security
for the
Obligations.
SECTION 5. Representations and Warranties. Each Pledgor jointly
and
severally represents and warrants as of the date of this Agreement
as follows:
(a) Each Pledgor (i) is a corporation, limited liability
company
or limited partnership duly organized, validly existing and in good
standing
under the laws of the state or jurisdiction of its organization,
and (ii) has
all corporate, limited liability company or limited partnership
power and
authority to execute, deliver and perform this Agreement.
(b) The execution, delivery and performance by each Pledgor of
this Agreement (i) have been duly authorized by all necessary
corporate, limited
liability company or limited partnership action, (ii) do not and
will not
contravene its charter or bylaws, its limited liability company or
operating
agreement or its certificate of partnership or partnership
agreement, as
applicable, or any applicable law or any contractual restriction
binding on or
affecting it or any of its properties, and (iii) do not and will
not result in
or require the creation of any Lien upon or with respect to any of
its
properties other than pursuant to this Agreement.
(c) The issuers of the Pledged Shares set forth in Schedule I
hereto are the Pledgors' only Subsidiaries existing on the date
hereof. The
Pledged Shares have been duly authorized and validly issued, are
fully paid and
nonassessable and the holders thereof are not entitled to any
preemptive first
refusal or other similar rights. Except as noted in Schedule I
hereto, the
Pledged Shares constitute 100% of the issued shares of capital
stock,
partnership interests or membership or other equity interests, as
applicable, of
the Subsidiaries. All other shares of stock constituting Collateral
will be,
when issued, duly authorized and validly issued, fully paid and
nonassessable.
(d) The Pledgors are and will be at all times the legal and
beneficial owners of the Collateral free and clear of any Lien,
other than Liens
created by this Agree
