EXHIBIT 10.4
AMENDMENT NO. 1
TO DECEMBER 29, 1995
SUBSCRIPTION AGREEMENT AND
JUNE 28, 1996 SUBSCRIPTION AGREEMENT
This Amendment No. 2 dated June 10, 1997 ("Amendment No. 2") to Subscription
Agreement dated December 29, 1995 (the "December 29, 1995 Subscription
Agreement") and Subscription Agreement dated June 28, 1996 (the "June 28, 1996
Subscription Agreement"), is entered into by and between Xxxx Systems, Inc., a
California corporation ("Xxxx"), and Xxxxxxxx International Limited, a company
organized under the laws of the Cayman Islands ("Xxxxxxxx").
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings in the December 29, 1995 Subscription Agreement or the June 28,
1996 Subscription Agreement.
1. AMENDMENT NO. 1.
a. Upon the execution and delivery of Amendment No. 2 by both Xxxx and
Xxxxxxxx, Amendment No. 1 to the December 29, 1995 Subscription Agreement and
the June 28, 1996 Subscription Agreement, dated June 28, 1996, will be of no
further force and effect.
2. LIMITATION OF ISSUANCE OF COMMON STOCK.
a. Notwithstanding anything to the contrary contained in (i) the December
29, 1995 Subscription Agreement or the Options, the Convertible Preferred Stock
or the Warrant issued pursuant thereto, (ii) the June 28, 1996 Subscription
Agreement between Xxxx and Xxxxxxxx (a copy of which is attached hereto as
Exhibit A) or the Series C Option, the Series C Convertible Preferred Stock or
the Warrant issuable pursuant thereto, or (iii) the Articles of Incorporation of
Xxxx, as amended to the date hereof (the "Articles"), the maximum number of
shares of Common Stock (or any other class of voting stock) that shall be issued
to Xxxxxxxx pursuant to any of the foregoing, collectively, shall be 2,866,075
shares of Common Stock (which is equal to 19.99% of the then outstanding Common
Stock as of December 29, 1995) (the "Maximum Limit"); PROVIDED, HOWEVER, that
for purposes of determining the number of shares of Common Stock (or any other
class of voting stock) issued to Xxxxxxxx as of any date, the number of shares
of Common Stock (or any other class of voting stock) issuable upon exercise of
the Warrant issued to Xxxxxxxx pursuant to the December 29, 1995 Subscription
Agreement and the Warrant issued to Xxxxxxxx pursuant to the June 28, 1996
Subscription Agreement shall be deemed to have been issued to Xxxxxxxx as of the
date hereof.
b. To the extent that the conversion by Xxxxxxxx of any share of
Convertible Preferred Stock issued pursuant to the December 29, 1995
Subscription Agreement or the conversion by Xxxxxxxx of any share of Convertible
Preferred Stock issued pursuant to the June 28, 1996 Subscription Agreement
would, but for the Amendment No. 2, result in the issuance to Xxxxxxxx of any
shares of Common Stock (or any other class of voting stock) in excess of the
Maximum Limit, such conversion shall not be permitted.
c. No action taken by either party consistent with the terms of this
Amendment No. 2 shall constitute a breach of or default under the December 29,
1995 Subscription Agreement or the Options, the Convertible Preferred Stock or
the Warrant issued pursuant thereto; the June 28, 1996 Subscription Agreement or
the Series C Option, the Convertible Preferred Stock or the Warrant issuable
pursuant thereto; or the Articles.
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3. ACKNOWLEDGMENT.
a. Both Xxxx and Xxxxxxxx hereby acknowledge that, in accordance with the
terms of the Options granted to Xxxx pursuant to the December 29, 1995
Subscription Agreement and the June 28, 1996 Subscription Agreement, such
Options may no longer by exercised by Xxxx.
4. MISCELLANEOUS.
a. This Amendment No. 2 may be executed in one or more counterparts and it
is not necessary that signatures of all parties appear on the same counterpart,
but such counterparts together shall constitute but one and the same agreement.
b. This Amendment No. 2 shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and no other person shall
have any right or obligation hereunder.
c. This Amendment No. 2 shall be governed by, and construed in accordance
with, the internal laws of the State of New York, and each of the parties hereto
hereby submits to the non-exclusive jurisdiction of any State or Federal court
in the Borough of Manhattan in the City and State of New York and any court
hearing any appeal therefrom, over any suit, action or proceeding against it
arising out of or based upon this Agreement (a "Related Proceeding"). Each of
the parties hereto hereby waives any objection to any Related Proceeding in such
courts whether on the grounds of venue, residence of domicile or on the ground
that the Related Proceeding has been brought in an inconvenient forum.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement, all as of the day and year first above written.
XXXX SYSTEMS, INC.
By: /s/ XXXXX X. XXXXX, XX.
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Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
XXXXXXXX INTERNATIONAL LIMITED
By:
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Name: Xxxx X. Xxxxxxxx
Title: Chairman
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement, all as of the day and year first above written.
XXXX SYSTEMS, INC.
By:
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Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
XXXXXXXX INTERNATIONAL LIMITED
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Chairman
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