Exhibit 10.13
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENTS AND WAIVER
This First Amendment and Waiver ("Amendment"), effective as of March 5,
2002 to the Stock Purchase Agreements, dated March 30, 1999 and February 1,
2001, respectively (the "Purchase Agreements"), between Xxxxxx Technologies,
Inc., a New York corporation (the "Company"), and Xxxxxxx US Discovery Fund III,
L.P. ("Discovery").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Discovery are parties to the Purchase Agreements;
WHEREAS, pursuant to the Purchase Agreements, Discovery purchased from the
Company an aggregate of 81,874 shares of the Company's Series A Convertible
Preferred Stock, par value $.01 per share;
WHEREAS, the Nasdaq Stock Market, Inc. has advised the Company that in
order to maintain the listing of its Common Stock on Nasdaq the Company must
amend the anti-dilution provisions relating to the determination of the
conversion price of the Series A Convertible Preferred Stock contained in
Section 5(d)(ii) of the Company's Certificate of Incorporation (the "Conversion
Price") to provide that the Conversion Price shall not be less than $1.78;
WHEREAS, the Company and Discovery desire to maintain the listing of the
Company's Common Stock on Nasdaq;
WHEREAS, certain provisions of the Purchase Agreements prohibit the Company
from amending Section 5(d)(ii) of its Certificate of Incorporation without
obtaining the prior consent of Discovery;
WHEREAS, pursuant to Section 15 of the Purchase Agreements, the Company and
Discovery desire to waive the provisions of Sections 8.10 and 9.1 of the
Purchase Agreements to provide for the amendment to Section 5(d)(ii) of the
Company's Certificate of Incorporation to provide for the adjustment in the
determination of the Conversion Price as noted above, and to add a provision to
the Purchase Agreements providing that as long as the Xxxxxxx Holders own any
shares of Series A Convertible Preferred Stock the Company will not sell any
additional shares of its Common Stock for a per share consideration less than
the Conversion Price of the Series A Convertible Preferred Stock or issue or
sell any securities convertible into or exchangeable for shares of Common Stock
at a per share conversion or exercise price less that the Conversion Price of
the Series A Convertible Preferred Stock without the prior written consent of
the Xxxxxxx Holders.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Amendment to the Purchase Agreements. The Purchase Agreements are hereby
amended by adding new Section 9.A as follows:
9A. Additional Negative Covenants
"9A.1 Restrictions on Sales of Additional Securities.
Without the prior written consent of the Xxxxxxx Holders, the Company will
not issue or sell any additional shares of its Common Stock or any evidences of
indebtedness, shares of preferred stock or other securities which are
convertible into or exchangeable, with or without payment of additional
consideration in cash or property, into shares of Common Stock, for a
consideration per share that is less than the conversion price of the Series A
Convertible Preferred Stock in effect immediately prior to such issuance or sale
other than any options or other securities that may be
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issued under any of the Company's Stock Option or Stock Incentive Plans. The
foregoing restrictions shall terminate and be of no further force or effect if
the Xxxxxxx Holders no longer own any shares of Series A Convertible Preferred
Stock."
2. Consent to Amendment to Certificate of Incorporation. The undersigned
hereby agrees to the amendment to Section 5(d)(ii) of the Company's Certificate
of Incorporation to provide that if the Company shall issue or sell "Additional
Shares of Stock" (as defined in the Company's Certificate of Incorporation) at a
price per share less than the Conversion Price in effect immediately prior to
such issuance or sale, then the Conversion Price as to the Common Stock into
which the Series A Convertible Preferred Stock is convertible shall be adjusted
to equal the higher of (a) the consideration paid per Additional Share of Stock,
or (b)$1.78. The undersigned understands that by virtue of the provisions of
Section 5(d)(iii) of the Company's Certificate of Incorporation, the foregoing
amendment to the determination of the Conversion Price also applies to any
warrants or other securities convertible into Common Stock that the Company may
issue.
3. Waiver. Sections 8.10 and 9.1 of the Purchase Agreements are hereby
waived solely for the purpose of the Company effecting the amendment to the
Company's Certificate of Incorporation described in paragraph 2 of this
Agreement.
4. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be construed as if
such provision had been drawn so as not to be invalid or unenforceable.
5. Notices. Any notice or other communication required to, or which may, be
given to any party hereunder shall be in writing and shall be delivered
personally or by overnight courier to such party (or the President thereof in
the case of the Company or if mailed, by registered or certified mail, postage
prepaid, return receipt requested, addressed to such other party at the address
first set forth above and shall be deemed given in all cases upon receipt. Any
party may change the address to which notices are to be sent by giving written
notice of any change in the manner provided herein.
6. Entire Agreement. This Agreement represents and expresses the entire
understanding and agreement between the parties with respect to the subject
matter hereof and may not be modified or terminated except by an agreement in
writing signed by both of the parties hereto. Except specifically amended hereby
the Purchase Agreements shall remain in full force and effect in accordance with
their respective terms.
7. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Purchase Agreements.
8. Benefit of Agreement. The provisions of this Agreement shall be binding
upon and shall inure to the benefit of the successors and permitted assigns of
the parties hereto.
9. Governing Law. This Agreement shall be deemed to be a contract made
under the laws of the State of New York and for all purposes shall be construed
in accordance with the laws of said state.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment of the
date first written above.
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title:
XXXXXXX US DISCOVERY FUND, III, L.P.
By: Xxxxxxx US Discovery Partners, L.P.,
its general partner
By: Xxxxxxx US Discovery LLC,
its general partner
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title:
