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EXHIBIT 4.1
AMENDMENT NO. 2 TO THE COMMON STOCK INVESTMENT AGREEMENT
This Amendment No. 2 (the "Amendment") to the Common Stock Investment
Agreement dated as of July 30, 1999 (the "Investment Agreement"), by and
between General Magic, Inc. (the "Company") and Cripple Creek Securities, LLC
(the "Investor"), as previously amended on August 4, 1999, is made as of March
10, 2000 by and between the Company and the Investor.
RECITALS
WHEREAS, Section 1(d) of the Investment Agreement gives the Investor the
right, under certain circumstances, to purchase additional Shares during a
Purchase Period, and the Company and the Investor desire to increase the ability
of the Investor to purchase Shares pursuant to such provision, it being
understood that the parties do not desire to increase the aggregate dollar
amount of shares of Common Stock issuable under the Investment Agreement; and
WHEREAS, the parties desire to modify the provisions contained in Section
1(e) of the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing:
1. Amendment to the Agreement. The parties hereby agree that the
Investment Agreement should be amended as follows:
1.1 Amendment to Section 1(d). The number "30%" in said paragraph
shall be deleted and in place thereof the number "100%" shall be inserted. The
parties acknowledge and agree that nothing herein shall be deemed to amend the
aggregate dollar amount of shares of Common Stock issuable under the Investment
Agreement, which shall remain at $26,000,000 as provided in Section 1(a).
1.2 Amendment to Section 1(e). Section 1(e) shall be deleted in its
entirety, and the following shall be substituted in lieu thereof:
(e) Limitations on Investor's Obligation and Right to Purchase Shares.
(1) Notwithstanding anything to the contrary in the Transaction
Documents, in no event shall the Investor be required or permitted to purchase,
and a Required Dollar Amount shall be deemed not to include, a number of Shares
which, when added to the number of shares of Common Stock otherwise
beneficially owned within the meaning of Section 13(d) of the 1934 Act as
amended (the "1934 Act") (other than by virtue of the ownership of convertible
preferred stock, warrants or other securities or rights to purchase that have
limitations on the Investor's (or aggregation party, as defined below) right to
convert, exercise or purchase similar to the limitation set forth herein) by
the Investor or by any "affiliate" (as defined in Rule 144 of the 0000 Xxx) of
the Investor that would be aggregated for purposes of determining whether a
group under such Section 13(d) exists as of the date with respect to which this
determination is being made ("aggregation party"), would exceed the Restricted
Ownership Percentage (as hereinafter defined) of the number of shares of Common
Stock outstanding on such date, as determined in accordance with such Section
13(d). The Restricted Ownership Percentage shall
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be 9.9%; provided, however, that the Investor shall have the right to adjust
said percentage from time to time, so long as it is never more than 9.9% nor
less than 4.99%.
(2) Each time (a "Covenant Time") the Investor makes a Triggering
Acquisition (as defined below) of shares of Common Stock pursuant to this
Agreement (the "Triggering Shares"), the Investor will be deemed to covenant
that it will not, during the balance of the day on which such Triggering
Acquisition occurs, and during the 61-day period beginning immediately after
that day, acquire additional shares of Common Stock pursuant to
rights-to-acquire existing at that Covenant Time, if the aggregate amount of
such additional shares so acquired (without reducing that amount by any
dispositions) would exceed (x) the Restricted Ownership Percentage of the number
of shares of Common Stock outstanding at that Covenant Time (including the
Triggering Shares) minus (y) the number of shares of Common Stock actually owned
by the Investor or an aggregation party at that Covenant Time (regardless of how
or when acquired, and including the Triggering Shares). "Triggering Acquisition"
means (i) the giving of a Purchase Notice (as defined below), (ii) a Closing, or
(iii) any other acquisition of Common Stock by the Investor or an aggregation
party; provided, however, that with respect to each event described in the
preceding clauses "i", if the associated issuance of shares of Common Stock does
not occur, such event shall cease to be a Triggering Acquisition and the related
covenant under this paragraph shall terminate. At each Covenant Time, the
Investor shall be deemed to waive any right it would otherwise have to acquire
shares of Common Stock to the extent that such acquisition would violate any
covenant given by the Investor under this paragraph. Notwithstanding anything to
the contrary in this Agreement, in the event of a conflict between any covenant
given under this paragraph and any obligation of the Investor to buy shares
pursuant to this Agreement, the former shall supersede the latter, and the
latter shall be reduced accordingly. The Investor shall endeavor in good faith
to avoid such a conflict. For the avoidance of doubt:
(i) The covenant to be given pursuant to this paragraph will be given
at every Covenant Time and shall be calculated based on the circumstances
then in effect. The making of a covenant at one Covenant Time shall not
terminate or modify any prior covenants.
(ii) The Investor may therefore from time to time be subject to
multiple such covenants, each one having been made at a different Covenant
Time, and some possibly being more restrictive than others. The Investor
must comply with all such covenants then in effect.
(3) Each Put Notice shall include a representation of the Company as
to the number of shares of Common Stock outstanding on the related Put Notice
Date as determined in accordance with Section 13(d) of the 1934 Act. In the
event that the number of shares of Common Stock outstanding as determined in
accordance with Section 13(d) of the 1934 Act is different on any date during a
Purchase Period than on the Put Notice Date associated with such Purchase
Period, then the number of shares of Common Stock outstanding on such date
during such Purchase Period shall govern for purposes of determining whether
the Investor would have acquired more than [9.9%] of the number of shares of
Common Stock outstanding during such period.
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2. Miscellaneous.
2.1 Capitalized Terms. All capitalized terms not otherwise defined
herein will have the meanings set forth in the Investment Agreement.
2.2 Other Provisions. All provisions of the Investment Agreement, as
previously amended, shall remain in full force and effect.
2.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned has caused this amendment to be duly
executed and delivered by its proper and duly authorized officers.
COMPANY: INVESTOR:
GENERAL MAGIC, INC. CRIPPLE CREEK SECURITIES, LLC
By: /s/ XXXX X. XXXXX By: /s/ XXXXXX XXXXXXX
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