AMENDMENT AGREEMENT
Exhibit
10.2
THIS
AMENDMENT AGREEMENT (this "Agreement"), dated as
of December 11, 2008 is entered into by and between Telanetix, Inc., a Delaware
corporation (the "Company"), Enable
Growth Partners LP ("Enable Growth"),
Enable Opportunity Partners LP ("Enable Opportunity"),
Xxxxxx Diversified Strategy Maser Fund LLC, ena ("Xxxxxx") and Crescent
International Ltd. ("Crescent" and
collectively with Enable Growth, Enable Opportunity and Xxxxxx, the "Holders"). Capitalized terms used herein, but
not otherwise defined, shall have the meanings ascribed to such terms in the
Exchange Agreement (as defined below).
WHEREAS, the Company and the
Holders are parties to that certain Securities Purchase Agreement dated December
28, 2006, pursuant to which the Company issued to the Holders, among other
securities, common stock purchase warrants to purchase shares of Common Stock
(the "December 2006
Warrants");
WHEREAS, the Company and the
Holders are parties to that certain Securities Purchase Agreement dated February
12, 2007, pursuant to which the Company issued to the Holders, among other
securities, common stock purchase warrants to purchase shares of Common Stock
(the "February 2007
Warrants");
WHEREAS, the Company, Enable
Growth and Xxxxxx are parties to that certain Securities Purchase Agreement
dated March 27, 2008 (the "March Purchase
Agreement") pursuant to which the Company issued to Enable Growth and
Xxxxxx, among other securities, common stock purchase warrants to purchase
shares of Common Stock (the "March 2008
Warrants");
WHEREAS, the Company and the
Holders are parties to that certain Securities Exchange Agreement dated June 30,
2008 (the "Exchange
Agreement") pursuant to which the Company issued to the Holders Amended
and Restated Senior Secured Convertible Debentures, due June 30, 2014 (the
"June 2008
Debentures");
WHEREAS, the Company and
Enable Growth are parties to that certain Debenture and Warrant Purchase
Agreement dated August 13, 2008 (the "August Purchase
Agreement" and collectively with the March Purchase Agreement and
Exchange Agreement, the "Prior Agreements")
pursuant to which the Company issued to Enable Growth Senior Secured Convertible
Debentures due June 30, 2014 (the "August 2008
Debentures") and common stock purchase warrants to purchase Common Stock
(the "August 2008
Warrants");
WHEREAS, pursuant to that
certain Securities Purchase Agreement dated October 31, 2008, Enable Growth
purchased from each of Xxxxxx Bay Fund, LP, and Xxxxxx Bay Overseas Fund, Ltd.
(together, "Xxxxxx
Bay"), all of the debentures previously issued by the Company to Xxxxxx
Bay (the "HB
Debentures" and collectively with the June 2008 Debentures and the August
2008 Debentures, the "Debentures") and
common stock purchase warrants previously issued by the Company to Xxxxxx Bay
(the "HB
Warrants" and collectively with the December 2006 Warrants, February 2007
Warrants, March 2008 Warrants and August 2008 Warrants, the "Warrants");
WHEREAS, the Company has
requested that the Holders agree to certain waivers and amendments, and the
Holders have agreed to such request, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in
consideration of the terms and conditions contained in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound hereby, agree as
follows:
1. Adjustment to
Warrants.
(a) Exercise
Price. The Exercise Price of the Warrants is hereby adjusted
to equal $0.40 per share, subject to further adjustment as set forth in the
Warrants. As such, Section 2(b) of the Warrants is hereby deleted in its
entirety and replaced with the following: "Exercise
Price. The
exercise price per share of the Common Stock under this Warrant shall be
$0.40, subject to adjustment hereunder
(the "Exercise
Price")."
(b) Warrant Shares. Each
Holder hereby agrees to a one-time waiver of the increase in the number of
Warrant Shares issuable pursuant to Section 3(b) of the Warrants as a result of
the issuance of the debenture and warrant by the Company to the purchasers under
the Debenture and Warrant Purchase Agreement of even date herewith, which if not
waived would have resulted in the number of Warrant Shares being increased such
that the aggregate exercise price payable upon exercise of the Warrants, after
taking into account the decrease in the exercise price of such Warrants to
$0.40, would equal the aggregate exercise price prior to such
adjustment.
2. Adjustment to Conversion
Price of Debentures. The Conversion Price of the Debentures is hereby
adjusted to equal $0.40 per share, subject to further adjustment as set forth in
the Debentures. As such, Section 4(b) of the Debentures is hereby deleted in its
entirety and replaced with the following: "Conversion
Price. The
conversion price in effect on any Conversion Date shall be equal to $0.40,
subject to adjustment herein (the "Conversion
Price")."
3. Interest. The
parties hereto hereby agree that interest payable on the Debentures shall be, as
of the date hereof, payable quarterly at the rate of (a) 0% per annum from
October 1, 2008 until September 30, 2009, (b) 13.5% per annum from October 1,
2009 until September 30, 2012 and (c) 18% per annum from October 1, 2012 until
the Maturity Date of such Debenture. As such, Section 2(a) of each Debenture is
hereby deleted in its entirety and replaced with the following:
"(a) Payment of Interest in Cash
or Kind. The Company shall pay interest to the Holder on the aggregate
unconverted and then outstanding principal amount of this Debenture at the rate
of (i) 0% per annum from October 1, 2008 until September 30, 2009, (ii) 13.5%
per annum from October 1, 2009 until September 30, 2012 and (iii) 18% per annum
from October 1, 2012 until the Maturity Date, payable quarterly on January 1,
April 1, July 1 and October 1, beginning on the first such date after October 1,
2008, on each Optional Redemption Date (as to that principal amount then being
redeemed) and on the Maturity Date (each such date, an "Interest Payment
Date") (if any Interest Payment Date is not a Business Day, then the
applicable payment shall be due on the next succeeding Business Day), in cash or
duly authorized, validly issued, fully paid and non-assessable shares of Common
Stock at the Interest Conversion Rate (the dollar amount to be paid in shares of
Common Stock, the "Interest Share
Amount") or a combination thereof; provided, however, that payment
in shares of Common Stock may only occur if (i) all of the Equity Conditions
have been met (unless waived by the Holder in writing) during the 20 Trading
Days immediately prior to the applicable Interest Payment Date (the
"Interest Notice
Period") and through and including the date such shares of Common Stock
are issued to the Holder, (ii) the Company shall have given the Holder notice in
accordance with the notice requirements set forth below and (iii) as to such
Interest Payment Date, not less than 2 Trading Days prior to such Interest
Payment Date, the Company shall have delivered to the Holder's account with The
Depository Trust Company a number of shares of Common Stock to be applied
against such Interest Share Amount equal to the quotient of (x) the applicable
Interest Share Amount divided by (y) the then Conversion Price (the "Interest Conversion
Shares"). In addition to the payment of interest described
above, on each Conversion Date, Forced Conversion Date and Optional Redemption
Date, the Company shall pay the Holder via a bank check or wire transfer in the
amount equal to all interest that would have accrued if the principal amount
subject to such Notice of Conversion, Forced Conversion Notice or Optional
Redemption Notice, as applicable, had remained outstanding through the Maturity
Date."
4. Representations and
Warranties of the Company. The Company hereby makes the
representations and warranties set forth below to the Holders as of the date of
its execution of this Agreement:
(a) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by
the Company, the Board of Directors or the Company's stockholders in connection
therewith other than in connection with the Required Approvals. This
Agreement has been duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b) No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not: (i) conflict with or violate any
provision of the Company's or any Subsidiary's certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, result in the creation of any Lien
upon any of the properties or assets of the Company or any Subsidiary, or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any Subsidiary is a
party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with or
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not have or reasonably be expected to result in a Material
Adverse Effect.
(c) Equal
Consideration. Except as set forth in this Agreement, no
consideration has been offered or paid to any person to amend or consent to a
waiver, modification, forbearance or otherwise of any provision of any of the
Debentures or Warrants.
(d) Survival and Bring
Down. All of the Company's representations and warranties
contained in this Agreement shall survive the execution, delivery and acceptance
of this Agreement by the parties hereto. The Company expressly
reaffirms that each of the representations and warranties set forth in the Prior
Agreements (as supplemented or qualified by the disclosures in any disclosure
schedule to any Prior Agreement), continues to be true, accurate and complete in
all material respects as of the date hereof (except as set forth in the
disclosure schedules provided by the Company pursuant to the Debenture and
Warrant Purchase Agreement of even date herewith (the "December 2008 Disclosure
Schedule"), and except for any representation and warranty made as of a
certain date, in which case such representation and warranty shall be true,
accurate and complete as of such date), and the Company hereby remakes and
incorporates herein by reference each such representation and warranty (as
qualified by the December 2008 Disclosure Schedule) as though made on the date
of this Agreement.
5. Representations and
Warranties of the Holders. Each Holder hereby makes the
representation and warranty set forth below to the Company as of the date of its
execution of this Agreement. Such Holder represents and warrants that (a) the
execution and delivery of this Agreement by it and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
action on its behalf and (b) this Agreement has been duly executed and delivered
by such Holder and constitutes the valid and binding obligation of such Holder,
enforceable against it in accordance with its terms except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
6. Public
Disclosure. On or before 9:30 am (Eastern Time) on the Trading
Day immediately following the date hereof, the Company shall file a Current
Report on Form 8-K, reasonably acceptable to the Holders disclosing the material
terms of the transactions contemplated hereby and attaching this Agreement as an
exhibit thereto. The Company shall consult with the Holders in issuing any other
press releases with respect to the transactions contemplated
hereby.
7. Effect on Transaction
Documents. Except as expressly set
forth above, all of the terms and conditions of the Prior Agreements, Debentures
and Warrants shall continue in full force and effect after the execution of this
Agreement and shall not be in any way changed, modified or superseded by the
terms set forth herein, including, but not limited to, any other obligations the
Company may have to the Holders under the Prior Agreements, Debentures and
Warrants. Notwithstanding the foregoing, this Agreement shall be deemed
for all purposes as an amendment to any and all of the Prior Agreements,
Debentures and Warrants as required to serve the purposes hereof, and in the
event of any conflict between the terms and provisions of any other of the Prior
Agreements, Debentures or Warrants, on the one hand, and the terms and
provisions of this Agreement, on the other hand, the terms and provisions of
this Agreement shall prevail.
8. Amendments and
Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
same shall be in writing and signed by the Company and the Holders.
9. Notices. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be delivered as set forth in the Exchange
Agreement.
10. Successors and
Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties; provided, however, that no
party may assign this Agreement or the obligations and rights of such party
hereunder without the prior written consent of the other parties
hereto.
11. Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a ".pdf" format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or ".pdf" signature page were an original thereof.
12. Fees and
Expenses. Except as expressly set forth herein, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this
Agreement.
13. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined pursuant to
the Governing Law provision of the Exchange Agreement.
14. Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
15. Construction. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise this Agreement and, therefore, the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments hereto.
16. Entire
Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into this Agreement.
17. Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof
18. Independent Nature of
Holders' Obligations and Rights. The obligations of each
Holder hereunder are several and not joint with the obligations of any other
Holders hereunder, and no Holder shall be responsible in any way for the
performance of the obligations of any other Holder hereunder. Nothing contained
herein or in any other agreement or document delivered at any closing, and no
action taken by any Holder pursuant hereto, shall be deemed to constitute the
Holders as a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Holders are in any way acting in
concert with respect to such obligations or the transactions contemplated by
this Agreement. Each Holder shall be entitled to protect and enforce its rights,
including without limitation the rights arising out of this Agreement, and it
shall not be necessary for any other Holder to be joined as an additional party
in any proceeding for such purpose.
19. Re-Issuance of Debentures
and Warrants. Upon the written request of either any of the Holders or
the Company, each party shall use commercially reasonable efforts to deliver the
instruments representing the original Debentures and Warrants to the Company in
exchange for replacement instruments that reflect the revised terms of such
securities as set forth in this Agreement.
20. Default Under
Debentures. Each of the Holders hereby waives any default or breach that
may have resulted by way of the Company's failure to make the interest payment
due on October 1, 2008, November 1, 2008 and December 1, 2008 when due and in
accordance with the terms of the Debentures, and acknowledges that such payment
obligations are extinguished in all respects as a result of the adjustment to
the interest rate payable in respect of the Debentures as set forth in Section
3.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
TELANETIX,
INC.
By:/s/ Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title: Chief
Executive Officer
********************
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR HOLDERS FOLLOW]
[HOLDER'S
SIGNATURE PAGE TO TNXI AMENDMENT AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
Name of
Holder: Crescent
International
Ltd.
Signature of Authorized Signatory of
Holder: /s/
Maxi
Brezzi
Name of
Authorized Signatory: Maxi
Brezzi
Title of
Authorized Signatory: Authorized
Signatory
[SIGNATURE
PAGES CONTINUE]
[HOLDER'S
SIGNATURE PAGE TO TNXI AMENDMENT AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
Name of
Holder: Enable Growth
Partners LP
Signature of Authorized Signatory of
Holder: /s/
Xxxxxxx
X'Xxxx
Name of
Authorized Signatory: Xxxxxxx
X'Xxxx
Title of
Authorized Signatory: President and Chief
Investment Officer
[SIGNATURE
PAGES CONTINUE]
[HOLDER'S
SIGNATURE PAGE TO TNXI AMENDMENT AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
Name of
Holder: Enable
Opportunity Partners LP
Signature of Authorized Signatory of
Holder: /s/
Xxxxxxx
X'Xxxx
Name of
Authorized Signatory: Xxxxxxx
X'Xxxx
Title of
Authorized Signatory: President and Chief
Investment Officer
[SIGNATURE
PAGES CONTINUE]
[HOLDER'S
SIGNATURE PAGE TO TNXI AMENDMENT AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
Name of
Holder: Xxxxxx
Diversified Strategy Maser Fund LLC, ena
Signature of Authorized Signatory of
Holder: /s/
Xxxxxxx
X'Xxxx
Name of
Authorized Signatory: Xxxxxxx
X'Xxxx
Title of
Authorized Signatory: President and Chief
Investment Officer
