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EXHIBIT 10.2
EXECUTION COPY
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT, dated as of June 21, 2001
(this "Amendment"), by and among Xxxxxxx.xxx, Inc., a Delaware corporation (the
"Company"), General Atlantic Partners 74, L.P., a Delaware limited partnership
("GAP LP"), GapStar, LLC, a Delaware limited liability company ("GapStar"), GAP
Coinvestment Partners II, L.P., a Delaware limited partnership ("GAP
Coinvestment" and, together with GAP LP and GapStar, the "GAP Purchasers"), and
International Capital Partners, Profit Sharing Trust, a Connecticut trust ("ICP"
and, together with the GAP Purchasers, the "Purchasers").
WHEREAS, the Company and the Purchasers are parties to a Stock Purchase
Agreement, dated as of May 1, 2001 (the "Stock Purchase Agreement"), pursuant to
which the Company proposes to issue and sell to the Purchasers an aggregate of
25,000,000 shares of the Series F Senior Cumulative Redeemable Preferred Stock,
par value $0.000225 per share, of the Company for an aggregate purchase price of
$15,000,000; and
WHEREAS, pursuant to Section 12.4 of the Stock Purchase Agreement, the
Company, the GAP Purchasers and ICP wish to amend the Stock Purchase Agreement
as provided herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree to amend the
Stock Purchase Agreement as follows:
1. Defined Terms. Except as defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the Stock Purchase
Agreement.
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2. Amendments to Section 1 (Definitions). The following definitions are
hereby added to Article 1 of the Stock Purchase Agreement in the appropriate
alphabetical order:
"Market Price" means, with respect to the Common Stock, as of the
date of determination, the closing price per share of the Common Stock
on such date as published in The Wall Street Journal (National Edition).
"Conversion Price" means the conversion price of $0.60 per share of
Preferred Stock, subject to adjustment as provided in Section 7 of the
Certificate of Designations.
"Trading Day" means any day on which the NASDAQ is open for the
transaction of business.
3. Amendment to Section 2.2 (First Closing). The first sentence of
Section 2.2 of the Stock Purchase Agreement is hereby amended in its entirety as
follows:
"Subject to the satisfaction or waiver of the conditions set forth
in Articles V and VI, the closing of the sale and purchase of the
Initial Purchased Shares (the "First Closing") shall take place at the
offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, at 10:00 a.m.,
local time, on the second (2nd) Business Day following the date upon
which the conditions set forth in Articles V and VI shall be satisfied
or waived in accordance with this Agreement or at such other time, place
and date that the Company, the GAP Purchasers and ICP may agree in
writing (the "First Closing Date"); provided, however, that, if on the
Trading Day immediately preceding the scheduled First Closing Date the
Market Price exceeds the Conversion Price, the First Closing Date shall
automatically be extended to the first Business Day after a Trading Day
on which the Market Price is less than the Conversion Price."
4. Amendment to Article 10 (Article 10). Article 10 of the Stock
Purchase Agreement is hereby amended by adding a new Section 10.12 immediately
after Section 10.11 as follows:
10.12 Compliance with Nasdaq Marketplace Rule 4350(i)(1)(D)(i). The
Company shall not, without first obtaining stockholder approval, issue
shares of Preferred Stock at the First Closing or the Second Closing
such that the aggregate number of shares of Common Stock issuable upon
conversion of all issued and outstanding shares of Preferred Stock would
be greater than 19.9% of the Company's outstanding shares of Common
Stock as of May 1, 2001, if such issuance would violate Nasdaq
Marketplace Rule 4350(i)(1)(D)(i).
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5. Continuing Effect of Stock Purchase Agreement. This Amendment shall
not constitute a waiver, amendment or modification of any other provision of the
Stock Purchase Agreement not expressly referred to herein and shall not be
construed as a waiver or consent to any further or future action on the part of
the Company that would require a waiver or consent of the GAP Purchasers and
ICP. Except as expressly amended or modified herein, the provisions of the Stock
Purchase Agreement are and shall remain in full force and effect.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
7. Valid and Binding. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Amendment on the date first written above.
XXXXXXX.XXX, INC.
By: /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
Title: Chief Financial Officer
GENERAL ATLANTIC PARTNERS 74, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: A General Partner
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: A Managing Member
INTERNATIONAL CAPITAL PARTNERS, INC.,
PROFIT SHARING TRUST
By: /s/ N. E. XXXXXXXX
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Name: N. E. Xxxxxxxx
Title: Trustee
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