AMENDMENT NO. 3 TO
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 3 TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
(the "Amendment") is effective as of the 18th day of March, 2002, by and among
S2 TECHNOLOGIES, INC., a California corporation (the "Company") and each of
those persons and entities whose names are set forth on the Schedule of
Purchasers attached as Exhibit A to the Agreement (as defined below) (the
"Purchasers").
RECITALS
WHEREAS, the Company issued an aggregate of six million two hundred
eighty-five thousand seven hundred fifteen (6,285,715) Shares pursuant to that
certain Series B Preferred Stock Purchase Agreement, as amended to date (the
"Agreement") by and among the Company and each of those persons and entities
whose names are set forth on the Schedule of Purchasers attached thereto as
Exhibit A, dated as of October 18, 2001 (the "First Closing Date");
WHEREAS, the Company has authorized the sale and issuance of up to an
aggregate of ten million (10,000,000) shares of its Series B Preferred Stock
(the "Shares");
WHEREAS, pursuant to Sections 1.3 and 2.2 of the Agreement, not later
than the one hundred-fiftieth (150th) day following the First Closing Date, at
the option of each of the Purchasers listed under the heading "Second Closing,"
on Exhibit A of the Agreement, such Purchasers may purchase from the Company,
severally and not jointly, up to an aggregate of three million six hundred
seventy-eight thousand five hundred seventy-one (3,678,571) Shares on the terms
and conditions set forth in the Agreement (the "Second Closing");
WHEREAS, Star Trust 1982 ("Star Trust"), has elected not to participate
in the Second Closing and, pursuant to Section 2.2 of the Agreement, Star Trust
has accordingly forfeited its right to purchase the number of shares listed
opposite its name under the heading "Second Closing," on Exhibit A of the
Agreement (the "Star Trust Forfeited Shares");
WHEREAS, pursuant to Section 2.2 of the Agreement, Oryx Ventures
("Oryx") intends to purchase all of the Star Trust Forfeited Shares on the terms
and conditions set forth in the Agreement as they apply to the Second Closing;
WHEREAS, the Company and the Purchasers believe it is in the best
interest of the Company and its stockholders to amend Section 2.2 of the
Agreement to extend by fourteen (14) days the date by which Oryx may purchase
the Star Trust Forfeited Shares; and
WHEREAS, Section 6.6(a) of the Agreement provides that the Agreement
may be amended upon the written consent of the Company and holders of a majority
of the outstanding Shares issued pursuant to the Agreement.
Any capitalized term used in the Amendment and not defined herein shall
have the meaning assigned to such term in the Agreement.
1.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing promises and the
mutual covenants set forth herein, the Purchasers agree as follows:
2. AMENDMENT AND RESTATEMENT OF SECTION 2.2: Pursuant to Section 6.6(a) of
the Agreement, the parties hereby delete current Section 2.2 of the
Agreement and amend and restate such Section 2.2 in its entirety to
read as follows:
The closing of the sale and purchase of up to the total number
of Shares set forth under the heading "Second Closing" on
Exhibit A (the "Second Closing," the "First Closing," and the
"Subsequent First Closing" are sometimes referred to herein
collectively as the "Closing") shall take place at the offices
of Xxxxxx Godward LLP (as set forth above) not later than 150
days following the First Closing. The specific time and place
of the Second Closing shall be agreed in writing among the
Company and a majority in interest of the Purchasers by not
later than 120 days following the First Closing (such date is
hereinafter referred to as the "Second Closing Date"), but if
no such agreement occurs, then such Second Closing shall occur
150 days after the First Closing (if such date is not a
business day (defined as any weekday other than a United
States of America or California holiday) then such Second
Closing shall be on the first immediately following business
day). In connection with each Purchaser's consent to the date
of the Second Closing, each such Purchaser shall state in
writing the portion of the Shares set forth opposite such
Purchaser's name under the heading "Second Closing" on Exhibit
A that it intends to purchase at said Second Closing and shall
submit payment for the Shares that it intends to purchase by
not later than 15 days prior to the scheduled date of the
Second Closing (the "Second Closing Payment Deadline"). If (a)
a Purchaser states in writing that it intends to purchase
fewer than the full number of Shares set forth opposite such
Purchaser's name under the heading "Second Closing" on Exhibit
A, then it shall forfeit its right to purchase all other
Shares listed for its purchase at the Second Closing (the
"Forfeited Shares") or (b) a Purchaser fails to deliver
payment for the Shares that it intends to purchase at the
Second Closing by the Second Closing Payment Deadline, then
said Purchaser shall be deemed to have forfeited its right to
purchase all Shares for which it has not paid (also the
"Forfeited Shares"). Upon any such forfeiture, Oryx Ventures
may itself purchase, or it may select one or more third
parties that are reasonably acceptable to the Board of
Directors of the Company to purchase, any or all of such
Forfeited Shares at the Second Closing or, subject to the
Company's prior written consent, within fourteen (14) days
thereafter. All such sales of the Forfeited Shares shall be
made on the terms and conditions set forth in this Agreement
as they apply to the Second Closing. Any third party
participating in such Second Closing shall become a party to
this Agreement by executing and delivering a counterpart
signature page to this Agreement and shall
2.
thereafter be deemed a "Purchaser" and a party hereunder and
such person shall also be required to execute all other
documents required of Purchasers in a Closing. At the Second
Closing, the Company shall update the attached Exhibit A to
reflect the actual identities of each Purchaser and the
respective amounts purchased at each Closing, and each
Purchaser hereby consents to such amendment by the Company of
said Exhibit A.
2. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
3. GOVERNING LAW. This Amendment shall be governed in all respects by the
laws of the State of California as such laws are applied to agreements
between California residents entered into and performed entirely in
California, without regard to any state's conflict of laws principles.
4. NO OTHER CHANGES. Except as otherwise provided herein, all the terms
and conditions of the Agreement which are not inconsistent herewith
shall remain in full force and effect.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
3.
IN WITNESS WHEREOF, the parties hereto have executed AMENDMENT NO. 3 TO
SERIES B PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in the
first paragraph hereof.
COMPANY: PURCHASERS:
S2 TECHNOLOGIES, INC. ORYX VENTURES
Signature: \s\ Xxxx Xxxxxxxxx Signature: \s\ Xxxx Xxxxxxxx
------------------- ------------------
Print Name: Xxxx Xxxxxxxxx Print Name: Xxxx Xxxxxxxx
---------------- --------------
Title: President and CEO Title: CEO
------------------ ----
Address: 0000 Xxx Xxxxx Xxxxxx
---------------------
Xxxxxxx, XX 00000
----------------- PROFILE VENTURE PARTNERS FUND 1, L.P.
Signature: \s\ Xxxxxxx Xxxxxxx
-------------------
Print Name: Xxxxxxx Xxxxxxx
---------------
Title: Managing Director
-----------------
STAR TRUST 1982
Signature:
-----------------
Print Name:
-----------------
Title:
----------------------
VMR HIGH OCTANE FUND
Signature: \s\ Xxxxxxx Xxxxxxx
-------------------
Print Name: Xxxxxxx Xxxxxxx
---------------
Title: Director
--------
4.
XXXXXXXX INVESTMENTS LIMITED
Signature: \s\ Xxxxx Xxxxxxx
----------------
Print Name: Xxxxx Xxxxxxx
-------------
Title: Secretary
---------
DIABLO PARTNERS
Signature: \s\ Xxxxxxx Xxxxx
-----------------
Print Name: Xxxxxxx Xxxxx
-------------
Title: Managing Director
-----------------
5.
Exhibit A
SCHEDULE OF PURCHASERS
PURCHASE PRICE PURCHASE PRICE PAYABLE
PAYABLE BY IN IMMEDIATELY
CANCELLATION OF AVAILABLE FUNDS AT AGGREGATE PURCHASE
PURCHASER SHARES INDEBTEDNESS CLOSING PRICE
--------- ------ ------------ ------- -----
FIRST CLOSING
ORYX VENTURES 3,157,143 $250,000.00 $855,000.00 $1,105,000.00
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
PROFILE VENTURE PARTNERS FUND 1, L.P. 1,428,572 $0.00 $500,000.20 $500,000.20
000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
STAR TRUST 1982 0 $0.00 $0.00 $0.00
c/o Xxx Xxxxxx
0000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
VMR HIGH OCTANE FUND 528,571 $50,000.00 $135,000.00 $185,000.00
x/x Xxxxxxxxxxx Xxxx Xxxxxxxx
00-00 Xxxxx Xxxx
Xxxxxxx, Isle of Man 1M991M
XXXXXXXX INVESTMENTS LIMITED 1,142,858 $0.00 $400,000.30 $400,000.30
x/x Xxxxx Xxxxxxxx Xxxxxxxx XXX
X'Xxxxxx, Xxxx X, 00 Avenue Princes Grace
MC 98000, Monaco
DIABLO PARTNERS 28,571 $0.00 $10,000.00 $10,000.00
--------- ----------- ------------- -------------
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
TOTAL FOR FIRST CLOSING: 6,285,715 $300,000.00 $1,900,000.25 $2,200,000.25
========= =========== ============= =============
SECOND CLOSING
ORYX VENTURES 2,535,715 $0.00 $887,500.25 $887,500.25
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
PROFILE VENTURE PARTNERS FUND 1, L.P. 571,428 $0.00 $199,999.80 $199,999.80
000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
ORYX VENTURES 142,857 $0.00 $50,000.00 $50,000.00
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
VMR HIGH OCTANE FUND 428,571 $0.00 $150,000.00 $150,000.00
--------- ----------- ------------- -------------
x/x Xxxxxxxxxxx Xxxx Xxxxxxxx
00-00 Xxxxx Xxxx
Xxxxxxx, Isle of Man 1M991M
TOTAL FOR SECOND CLOSING 3,678,571 $0.00 $1,287,499.85 $1,287,499.85
========= ===== ============= =============
TOTAL FOR FIRST AND SECOND CLOSINGS: 9,964,286 $300,000.00 $3,187,500.10 $3,487,500.10
========= =========== ============= =============
