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EXHIBIT 4.1
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
This First Amendment to Stock Purchase Agreement (the "First
Amendment"), dated as of December 28, 2000, among Xxxxxxxx, Inc., a Minnesota
corporation (the "Company"), and the individuals and entities listed on Exhibit
A hereto (the "Purchasers"), amends the Stock Purchase Agreement, dated as of
November 10, 2000 (the "Purchase Agreement"), among the Company and the
Purchasers. Capitalized terms not defined herein shall have the meanings set
forth in the Purchase Agreement.
WHEREAS, the Company and the Purchasers entered into the Purchase
Agreement effective November 10, 2000 to effect the sale by the Company to the
Purchasers of (i) shares of the Company's Series G Convertible Preferred Stock,
par value $1.00 per share (the "Series G Preferred"), and (ii) shares of the
Company's Common Stock, par value $.25 per share (the "Common Stock") pursuant
to the terms contained therein; and
WHEREAS, subsequent to the execution and delivery of the Purchase
Agreement, certain developments occurred as a result of which the Company and
the Purchasers determined that certain amendments to the Purchase Agreement, and
the Disclosure Letter and Exhibits attached thereto, would be appropriate.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows.
1. Amendment of the Purchase Agreement. The Purchase Agreement is hereby amended
as follows:
(a) Section 1.1(c) of the Purchase Agreement shall be deleted in its
entirety, and the following shall be substituted therefor:
"(c) Subject to the terms and conditions set forth herein, at
the Closing (as defined below), the Company shall issue and
sell to the Purchasers and the Purchasers, severally and not
jointly, shall purchase 9,783,571 shares of Common Stock (the
"Common Shares")."
(b) Section 1.2(b) of the Purchase Agreement shall be deleted in its
entirety, and the following shall be substituted therefor:
"(b) The purchase price per Common Share shall be $1.40."
(c) Section 1.3(c) of the Purchase Agreement shall be amended by
deleting the first sentence of such Section in its entirety, and the following
shall be substituted therefor:
"The Closing of the purchase and sale of the Shares (the
"Closing") shall take place at the offices of Xxxxxxxxx &
Xxxxxx P.L.L.P., 4200 IDS Center, 00 Xxxxx 0xx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx simultaneous with the closing of the
transactions contemplated by the Agreement and Plan of Merger
dated as of November 10, 2000, as amended, modified or
supplemented from time to time, among the Company, IFT West
Acquisition Company, International Flex Holdings, Inc. ("IFH")
and its stockholders (the "Merger Agreement")."
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(d) Section 2.1(c) of the Purchase Agreement shall be amended by
deleting the first three sentences of such Section in their entirety, and the
following shall be substituted therefor:
"The authorized, issued and outstanding capital stock of the
Company as of November 1, 2000 is set forth in Part 2.1(c) of
the Disclosure Letter. Except as specifically disclosed in
Part 2.1(c) of the Disclosure Letter, no shares of the capital
stock or other securities of the Company are entitled to
preemptive or similar rights, nor is any holder of shares of
the capital stock or other securities of the Company entitled
to preemptive or similar rights. Except as disclosed in Part
2.1(c) of the Disclosure Letter, as of November 1, 2000, there
are no outstanding options, warrants or commitments of any
character whatsoever relating to, or, except as a result of
the purchase and sale of the Shares hereunder, securities,
rights or obligations convertible into or exchangeable for, or
giving any person any right to subscribe for or acquire any
shares of Common Stock of the Company, or contracts,
commitments, understandings, or arrangements by which the
Company is bound to issue additional shares of the Company's
Common Stock, or securities or rights convertible or
exchangeable into shares of the Company's Common Stock, or any
shares of the Company's Common Stock reserved for issuance."
(e) Section 2.1(d) of the Purchase Agreement shall be deleted in its
entirety, and the following shall be substituted therefor:
"(d) Issuance of Shares. The Series G Preferred Shares are
duly authorized and, when issued in accordance with the terms
hereof and the Certificate of Designation, shall be validly
issued, fully paid and non-assessable. The Common Shares are
duly authorized and, when issued in accordance with the terms
hereof, shall be validly issued, fully paid and
non-assessable. Except as set forth in Part 2.1(d) of the
Disclosure Letter, as of the Closing Date, the Company will
have and, at all times while any Series G Preferred Shares are
outstanding will maintain, an adequate reserve of duly
authorized shares of its Common Stock to enable it to perform
its obligations under this Agreement and the Certificate of
Designation with respect to the number of Series G Preferred
Shares issued and outstanding at the Closing Date. The shares
of Common Stock issuable upon conversion of the Series G
Preferred Shares and which may be issued as payment of
dividends on the Series G Preferred Shares are collectively
referred to herein as the `Underlying Shares.' When issued in
accordance with the terms hereof and the Certificate of
Designation, assuming the availability of sufficient
authorized shares of Common Stock of the Company at such time
of issuance, the Underlying Shares will be duly authorized,
validly issued, fully paid and non-assessable, free and clear
of all liens, claims, encumbrances or defects of any kind
(collectively, "Liens"), except as set forth in any required
legends thereon, including those required under the Governance
Agreement."
(f) Section 2.1(k) of the Purchase Agreement shall be amended by
deleting the last sentence of such Section in its entirety, and the following
shall be substituted therefor:
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"Except as set forth in Part 2.1(k) of the Disclosure Letter,
the Company is, and has no reason to believe that it will not
in the foreseeable future continue to be, in compliance with
all such listing and maintenance requirements."
(g) Section 2.2(h) of the Purchase Agreement shall be amended by
deleting the first sentence of such Section in its entirety, and the following
shall be substituted therefor:
"No Purchaser is an `Affiliate' or `Associate' (as such terms
are defined in Rule 12b-2 under the Exchange Act) of any other
Purchaser or is acting in concert with any other Purchaser,
except (i) that Ampersand IV Limited Partnership and Ampersand
IV Companion Fund Limited Partnership may be deemed to be
Affiliates or Associates of one another, (ii) to the extent
that a member or partner of a Purchaser or a member of a
partner of a Purchaser is a member or partner of another
Purchaser or a member or partner of a member or partner of
another Purchaser, (iii) by virtue of the existence of the
Governance Agreement and/or the Voting Agreement dated as of
November 10, 2000, as amended, supplemented or modified from
time to time, among Ampersand IV Limited Partnership,
Ampersand IV Companion Fund Limited Partnership, Xxxxxxxxxxxx
and Sound Beach Technology Partners, LLC relating to voting of
the shares of Common Stock in an election of directors to the
Company's board of directors (the "Voting Agreement"), and
(iv) as otherwise provided in any Transaction Document."
(h) Section 2.2(l) of the Purchase Agreement shall be amended by
deleting the first sentence of such Section in its entirety, and the following
shall be substituted therefor:
"At and after the Closing, except for (i) the shares of Common
Stock acquired pursuant to this Agreement, (ii) the shares of
Common Stock acquired upon conversion of the Series G
Preferred Shares and as dividends on the Series G Preferred
Shares, (iii) the shares of Common Stock acquired pursuant to
the Merger Agreement, and/or (iv) the shares of Common Stock
acquired upon exercise of the Warrants purchased under the
Subordinated Notes Purchase Agreement, and except by virtue of
the existence of the Governance Agreement and/or the Voting
Agreement, no Purchaser shall be a Beneficial Owner of fifteen
percent (15%) or more of outstanding shares of the Company's
Common Stock."
(i) Section 3.7 of the Purchase Agreement shall be deleted in its
entirety, and the following shall be substituted therefor:
"3.7 Amendment to Articles of Incorporation. The Company shall
use its reasonable best efforts to cause its stockholders to
amend the Company's Amended and Restated Articles of
Incorporation as soon as reasonably practical after the
Closing Date to increase the number of authorized shares of
the Company's Common Stock so that an adequate reserve of duly
authorized shares of Common Stock may be reserved in order to
enable the Company to perform its obligations under this
Agreement and the Certificate of Designation with respect to
the number of Series G Preferred Shares issued and outstanding
at the Closing Date."
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(j) Section 4.1(i) of the Purchase Agreement shall be deleted in its
entirety, and the following shall be substituted therefor:
"(i) Registration Rights Agreement. Such Purchaser shall have
received an executed Registration Rights Agreement, dated as
of December 28, 2000, in the form of Exhibit D (the
"Registration Rights Agreement") from the Company."
(k) Section 4.1(j) of the Purchase Agreement shall be deleted in its
entirety, and the following shall be substituted therefor:
"(j) Governance Agreement. Such Purchaser shall have received
an executed Governance Agreement, dated as of December 28,
2000, in the form of Exhibit E (the "Governance Agreement")
from the Company."
(l) Section 4.1(k) of the Purchase Agreement shall be deleted in its
entirety, and the following shall be substituted therefor:
"(k) Subordinated Notes Purchase Agreement. All of the
conditions to the obligations of the purchasers under the
Subordinated Notes and Warrant Purchase Agreement among the
Company and the purchasers listed on Schedule I thereto dated
as of November 10, 2000, as amended, modified or supplemented
from time to time (the "Subordinated Notes Purchase
Agreement"), other than the conditions related to this
Agreement, shall have been satisfied or waived by the parties
thereto at or before the Closing."
(m) Section 6.1 of the Purchase Agreement shall be amended by adding
the following sentence immediately at the end of such Section:
"Without limiting any of the forgoing, the Company shall
reimburse the Purchasers for all fees associated with any
filings under the HSR Act made by any of the Purchasers prior
to, on or following the Closing."
(n) Exhibit A of the Purchase Agreement shall be deleted in its
entirety, and shall be replaced for all purposes with the new Exhibit A attached
hereto.
(o) Exhibit B of the Purchase Agreement shall be deleted in its
entirety, and shall be replaced for all purposes with the new Exhibit B attached
hereto.
(p) Exhibit C of the Purchase Agreement shall be deleted in its
entirety, and shall be replaced for all purposes with the new Exhibit C attached
hereto.
(q) Exhibit D of the Purchase Agreement shall be deleted in its
entirety, and shall be replaced for all purposes with the new Exhibit D attached
hereto.
(r) Exhibit E of the Purchase Agreement shall be deleted in its
entirety, and shall be replaced for all purposes with the new Exhibit E attached
hereto.
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(s) The Disclosure Letter shall be deleted in its entirety, and shall
be replaced for all purposes with the new Disclosure Letter attached hereto as
Addendum 1, provided that the Disclosure Letter delivered upon execution of the
Purchase Agreement on November 10, 2000 shall continue to apply with respect to
the representations and warranties of the Company made in the Purchase Agreement
as of November 10, 2000.
2. Representations and Warranties. The Company hereby confirms that the
representations and warranties of the Company contained in Section 2.1 of the
Purchase Agreement, subject to those matters set forth in the updated Disclosure
Letter attached hereto as Addendum 1, are true and correct on and as of the date
hereof as if made on and as of the date hereof (except to the extent that such
representations and warranties expressly relate to an earlier date). Each
Purchaser hereby confirms that the representations and warranties of the
Purchasers contained in Section 2.2 of the Purchase Agreement are true and
correct on and as of the date hereof as if made on and as of the date hereof
(except to the extent that such representations and warranties expressly relate
to an earlier date). The Company and the Merger Sub hereby confirms that the
representations and warranties of the Company and the Merger Sub set forth in
Article IV of the Merger Agreement and incorporated in the Purchase Agreement by
reference pursuant to Section 2.3 thereto, subject to the updated Parent
Disclosure Letter attached as exhibit A to the First Amendment to the Merger
Agreement, are true and correct on and as of the date hereof as if made on and
as of the date hereof (except to the extent that such representations and
warranties expressly relate to an earlier date). IFH hereby confirms that the
representations and warranties of IFH set forth in Article II of the Merger
Agreement and incorporated in the Purchase Agreement by reference pursuant to
Section 2.3 thereto, subject to the updated Company Disclosure Letter attached
as exhibit B to the First Amendment to the Merger Agreement, are true and
correct on and as of the date hereof as if made on and as of the date hereof
(except to the extent that such representations and warranties expressly relate
to an earlier date). The IFH Stockholders hereby confirm that the
representations and warranties of the IFH Stockholders set forth in Article III
of the Merger Agreement and incorporated in the Purchase Agreement by reference
pursuant to Section 2.3 thereto are true and correct on and as of the date
hereof as if made on and as of the date hereof (except to the extent that such
representations and warranties expressly relate to an earlier date).
3. Miscellaneous.
(a) Effect of Amendment. Except as otherwise expressly set forth in
this First Amendment, nothing herein shall be deemed to constitute an amendment,
modification or waiver of any of the terms and conditions of the Purchase
Agreement or the Exhibits thereto, all of which terms and conditions shall
remain in full force and effect as originally constituted and the undersigned
shall remain obligated pursuant to the terms thereunder.
(b) Governing Law. This First Amendment shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Minnesota without regard to the principles of conflicts of law thereof.
(c) Execution. This First Amendment may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and
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binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, The Company and the Purchasers have each caused
this First Amendment to the Stock Purchase Agreement to be duly executed as of
the date first written above.
COMPANY:
XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: President
PURCHASERS:
XXXXXXXXXXXX VENTURE PARTNERS V, L.P.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx,
its General Partner
AMPERSAND IV LIMITED PARTNERSHIP
BY: AMP-IV MANAGEMENT COMPANY
LIMITED LIABILITY COMPANY,
ITS GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Principal Managing Member
AMPERSAND IV COMPANION FUND
LIMITED PARTNERSHIP
BY: AMP-IV MANAGEMENT COMPANY
LIMITED LIABILITY COMPANY,
ITS GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Principal Managing Member
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LIMITED JOINDER
IFH, the Merger Sub and the IFH Stockholders hereby join in the
foregoing First Amendment to Stock Purchase Agreement for the limited purposes
of confirming the representations and warranties set forth in Section 2.3 of the
Purchase Agreement, as amended hereby, on the date hereof as if they were
parties hereto and as if such representations and warranties were made as of the
date hereof (except to the extent that such representations and warranties
expressly relate to an earlier date).
INTERNATIONAL FLEX HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: President
IFT WEST ACQUISITION COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: President
IFH STOCKHOLDERS:
XXXXXXXXXXXX VENTURE PARTNERS V, L.P.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx,
its General Partner
SOUND BEACH TECHNOLOGY PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
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EXHIBIT A
SCHEDULE OF PURCHASERS
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# OF
SERIES G BENEFICIAL
PURCHASER AGGREGATE PREFERRED # OF COMMON OWNERSHIP STATE OF
NAME & ADDRESS PURCHASE PRICE SHARES SHARES PERCENTAGE RESIDENCE
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Ampersand IV Limited Partnership $7,350,000 3,323 2,876,300 29.4% MA
00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000-0000
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Ampersand IV Companion Fund $150,000 68 58,700 0.6% MA
Limited Partnership
00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000-0000
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Xxxxxxxxxxxx Venture Partners V, L.P. $17,500,000 7,912 6,848,571 70.0% OH
Terminal Tower
00 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
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TOTAL $25,000,000 11,303 9,783,571 100.0%
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