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EXHIBIT 10.8
INTERACTIVE KNOWLEDGE, INC.
AMENDMENT AND ADDENDUM TO SERIES A PREFERRED STOCK PURCHASE
AGREEMENT
This Amendment and Addendum to Series A Preferred Stock Purchase
Agreement (the "Agreement") is entered into as of January 6, 1999, by and among
Interactive Knowledge, Inc., a Delaware corporation (the "Company"), Xxxxx
Xxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxxx (Collectively the "Founders" and each
individually as a "Founder"), each of those persons and entities severally and
not jointly, whose names are set forth as Original Purchasers on Exhibit A
attached hereto (which persons and entities are hereinafter collectively
referred to as "Original Purchasers" and each individually as an "Original
Purchaser"), and World Venture Partners, Inc. and Xxxxx X. Xxxxxxxx (which
persons are hereinafter collectively referred to as "Additional Purchasers" and
each individually as an "Additional Purchaser").
WHEREAS, the Company, the Founders, and the Original Purchasers are
parties to that certain Series A Preferred Stock Purchase Agreement dated August
20, 1998 ("Stock Purchase Agreement");
WHEREAS, the parties desire to amend and update the Stock Purchase
Agreement, for purposes of the Second Closing (as defined therein), to include
the Additional Purchasers as "Purchasers" and as a "Purchaser" as those terms
are defined in the first paragraph of the Stock Purchase Agreement; and
WHEREAS, in connection with and for purposes of the Second Closing, the
parties desire to amend the Stock Purchase Agreement representations and
warranties and disclosure schedules to include the Additional Purchasers and to
update the information contained therein.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The Stock Purchase Agreement is amended to include the Additional
Purchasers as "Purchasers" and as a "Purchaser" as those terms are
defined in the first paragraph of the Stock Purchase Agreement.
2. In connection with the purchase of the Stock by them as part of the
Second Closing, additional Purchasers shall enjoy all of rights and
shall be subject to all of the terms, conditions, and obligations set
forth in the Stock Purchase Agreement in the same manner and to the
same extent that the Stock Purchase Agreement applies to the Original
Purchasers.
3. In connection with the purchase of the Stock by them as part of the
Second Closing, additional Purchasers agree to be bound by the terms,
conditions, and obligations set forth in the Stock Purchase Agreement
in the same manner and to the same extent that the Stock Purchase
Agreement applies to the Original Purchasers.
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4. In connection with the purchase of the Stock by them as part of the
Second Closing, each Additional Purchaser hereby represents and
warrants to the Company and to the Purchasers each of the
representations and warranties set forth in the Stock Purchase
Agreement, and each Original Purchaser hereby reaffirms the
representations and warranties set forth in the Stock Purchase
Agreement to the Company and the Original Purchasers and makes the same
representations and warranties to the Additional Purchasers.
5. Exhibit A attached to the Stock Purchase Agreement is amended as
follows to include the Additional Purchasers:
FIRST CLOSING SECOND CLOSING
NAME AND ADDRESS SHARES AGGREGATE PURCHASE PRICE SHARES AGGREGATE PURCHASE PRICE
World Venture Partners, Inc. N/A 50,000 $50,000
Xxxxx X. Xxxxxxxx N/A 50,000 $50,000
6. The attached Exhibit B reflects the Company's Balance Sheet for period
ending November 30, 1998 and is hereby added to Exhibit F attached to
the Stock Purchase Agreement. Effective for the Second Closing,
references in the Stock Purchase Agreement to the Balance Sheet
(including in Section 3.5) shall be to Exhibit F, and references to the
Statement Date shall be to November 30, 1998.
7. For the purposes of the Second Closing, the attached Schedules 3.3,
3.6, 3.7(a), 3.7(b), 3.7(c), 3.10, 3.11, 3.12, 3.13, and 3.15 amend
those numbered Schedules attached to the Stock Purchase Agreement.
8. For the purposes of the Second Closing, the second sentence of the
representations and warranties contained in paragraph 3.1 is amended as
follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
has all requisite corporate power and authority to own and operate its
properties and assets, to execute and deliver this Amendment to Series
A. Preferred Stock Purchase Agreement (the "Amended Agreement"), the
Amendment to Investors' Rights Agreement in the form attached to the
Amended Agreement, and the Amendment to Stockholders Agreement in the
form attached to the Amended Agreement (collectively, the "Related
Agreements"), to issue and sell the Shares and to issue the Conversion
shares and to carry out the provisions of the Amended Agreement, the
Related Agreements and the Amendment to the Restated Certificate and to
carry on its business as presently conducted and as presently proposed
to be conducted.
9. For the purposes of the Second Closing, the representations and
warranties contained in paragraph 3.18 are amended as follows:
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3.3 CAPITALIZATION. The authorized capital stock of the
Company, immediately prior to the Closing, will consist of (i) ten
million three hundred twenty-five thousand (10,325,000) shares of
Common Stock, par value $.001 per share, three million one hundred
ninety thousand eight hundred sixteen (3,190,816) shares of which are
issued and outstanding; and (ii) five million three hundred twenty-five
thousand (5,325,000) shares of Series A Preferred Stock, par value
$.001 per share, three million seventy-five thousand (3,075,000) of
which are issued and outstanding. All issued and outstanding shares of
the Company's Common Stock and Series A Preferred Stock (a) have been
duly authorized and validly issued, (b) are fully paid and
nonassessable, and (c) were issued in compliance with all applicable
state and federal laws concerning the issuance of securities. The
rights, preferences, privileges and restrictions of the Shares are as
stated in the Restated Certificate. The Series A Preferred Stock is
convertible into Common Stock on a one-for-one basis. The Conversion
Shares have been duly and validly reserved for issuance. There are no
outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal), proxy or stockholder
agreements, or agreements of any kind for the purchase or acquisition
from the Company of any of its securities, other than (i) the warrant
to be issued pursuant to the Agreement with Concept Ventures, dated
February 19, 1998, to purchase up to an aggregate of 33,325 shares of
Common Stock of the Company, (ii) the agreement by the Company pursuant
to its credit facility with Imperial Bank to grant the Bank a warrant
to acquire fifty thousand (50,000) shares of Series A Preferred Stock
under certain circumstances, and (iii) the one million eight hundred
forty-six thousand six hundred sixty-six (1,846,666) shares (reduced to
one million seven hundred seventy-five thousand eight hundred fifty
(1,775,850) shares to reflect seventy thousand eight hundred sixteen
(70,816) shares issued upon the exercise of options) reserved for
issuance under the Company's Stock Option Plan, and except as may be
granted pursuant to the Related Agreements. When issued in compliance
with the provisions of this Agreement and the Restated Certificate, the
Shares and the Conversion Shares may be subject to restrictions on
transfer under state and/or federal securities laws as set forth herein
or as otherwise required by such laws at the time a transfer is
proposed. No stock plan, stock purchase, stock option or other
Agreement or understanding between the Company and any holder of any
equity securities or rights to purchase equity securities provides for
acceleration or other changes in the vesting provisions or other terms
of such Agreement or understanding as the result of any merger,
consolidated sale of stock or assets, change in control or other
similar transaction by the Company.
10. For the purposes of the Second Closing, the representations and
warranties contained in paragraph 3.18 are amended as follows:
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3.18 REGISTRATION RIGHTS. Except as required pursuant to the
Investors' Rights Agreement and the Amendment to the Investors' Rights
Agreement, the Company is presently not under any obligation, and has
not granted any rights, to register (as defined in Section 1.1 of the
Investors' Rights Agreement) any of the Company's presently outstanding
securities or any of its securities that may hereafter be issued.
11. The Company agrees to pay the reasonable legal fees incurred by the
Original Purchasers in connection with the Second Closing.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT AND
ADDENDUM TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth
in the first paragraph hereof.
COMPANY: ORIGINAL PURCHASERS:
INTERACTIVE KNOWLEDGE, INC. SEQUEL LIMITED PARTNERSHIP
By: /s/ XXXXXXX X. XXXXXXX By: Sequel Venture Partners, L.L.C.
------------------------------ ---------------------------------
Name: Xxxxxxx X. Xxxxxxx Its General Partner
Title: President, Chief Executive Officer
By: /s/ XXXXXX WASHING
---------------------------------
Manager
ADDITIONAL PURCHASERS SEQUEL EURO LIMITED PARTNERSHIP
/s/ XXXXX XXXXXX By: Sequel Venture Partners, L.L.C.
----------------------------------------- Its General Partner
Xxxxx Xxxxxx
By: /s/ XXXXXX WASHING
/s/ XXXXX X. XXXXXXXX ---------------------------------
----------------------------------------- Manager
Xxxxx X. Xxxxxxxx
ANSCHUTZ FAMILY INVESTMENT
COMPANY
By: Anschutz Company, its Manager
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: TREASURER
REPERTOIRE CAPITAL VENTURES RLLLP
By: /s/ XXXX XXXXXXXX
---------------------------------
Name: Xxxx Xxxxxxxx
Title: MGR PARTNER
UNIVERSITY OF COLORADO CENTER FOR
ENTREPRENEURSHIP VENTURE CAPITAL
FUND
By: /s/ XXXXXXX X. XXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President/ Treasurer
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