AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
Exhibit
4.12
AMENDMENT
NO. 1 TO
THIS
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
(this
“Amendment”),
is
entered into by and between QUINTEK
TECHNOLOGIES INC,
a
California corporation (the “Company”),
and
the undersigned Buyer (the “Buyer”).
WHEREAS:
A. The
parties hereto previously entered into that certain Securities Purchase
Agreement dated as of May 17, 2006 (the "Agreement").
B. The
parties to the Agreement now desire to amend certain provisions set forth in
the
Agreement as more fully described herein.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Company and the Buyer hereby agree as
follows:
1. AMENDMENT
OF THE 2nd“WHEREAS”
CLAUSE.
The
2nd“WHEREAS”
Clause
of the Agreement is hereby amended and replaced in its entirety
with the following:
“WHEREAS,
the
parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Buyer(s), as provided herein,
and the Buyer(s) shall purchase up to Two Million Dollars ($2,000,000) of
secured convertible debentures (the “Convertible
Debentures”),
which
shall be convertible into shares of the Company’s common stock, par value $0.01
(the “Common
Stock”)
(as
converted, the “Conversion
Shares”)
of
which Seven Hundred Fifty Thousand Dollars ($750,000) shall be funded on the
first (1st)
business day following the date hereof (the “First
Closing”),
One
Hundred Fifty Thousand Dollars ($150,000) shall be funded upon the Company
increasing its authorized shares of Common Stock to at least five hundred
million (500,000,000) shares of Common Stock (the “Second
Closing”),
Six
Hundred Thousand Dollars ($600,000) shall be funded two (2) business days prior
to the date the registration statement (the “Registration
Statement”)
is
filed, pursuant to the Investor Registration Rights Agreement dated the date
hereof, with the United States Securities and Exchange Commission (the
“SEC”)
(the
“Third
Closing”),
and
Five Hundred Thousand Dollars ($500,000) shall be funded on the date that the
Registration Statement is declared effective by the SEC (the “Fourth
Closing”)
(individually referred to as a “Closing”
collectively referred to as the “Closings”),
for a
total purchase price of up to Two Million Dollars ($2,000,000), (the
“Purchase
Price”)
in the
respective amounts set forth opposite each Buyer(s) name on Schedule I (the
“Subscription
Amount”);
and”
2. AMENDMENT
OF SECTION 1(b).
Section
1(b) of the Agreement is hereby amended and replaced in its entirety with the
following:
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“(b) Closing
Date.
The
First Closing of the purchase and sale of the Convertible Debentures shall
took
place on May 24, 2006 (the “First
Closing Date”),
the
Second Closing of the purchase and sale of the Convertible Debentures shall
take
place at 10:00 a.m. Eastern Standard Time on the date the Company increases
its
authorized shares of Common Stock to at least five hundred million (500,000,000)
shares of Common Stock , subject to notification of satisfaction of the
conditions to the Second Closing set forth herein and in Sections 6 and 7 below
(or such later date as is mutually agreed to by the Company and the Buyer)
(the
“Second
Closing Date”),
the
Third Closing of the purchase and sale of the Convertible Debentures shall
take
place at 10:00 a.m. Eastern Standard Time on the date the Registration Statement
is filed with the SEC, subject to notification of satisfaction of the conditions
to the Third Closing set forth herein and in Sections 6 and 7 below (or such
later date as is mutually agreed to by the Company and the Buyer) (the
“Third
Closing Date”)
and of
the Fourth Closing purchase and sale of the Convertible Debentures shall take
place at 10:00 a.m. Eastern Standard Time on the date the Registration Statement
is declared effective by the SEC, subject to notification of satisfaction of
the
conditions to the Fourth Closing set forth herein and in Sections 6 and 7 below
(or such later date as is mutually agreed to by the Company and the Buyer)
(the
“Fourth
Closing Date”)
(collectively referred to a the “Closing
Dates”).
The
Closing shall occur on the respective Closing Dates at the offices of Yorkville
Advisors, LLC, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxx Xxxxxx 00000
(or
such other place as is mutually agreed to by the Company and the
Buyer).”
3. AMENDMENT
OF SECTION 4(g)(iv).
Section
4(g)(iv) of the Agreement is hereby amended and replaced in its entirety with
the following:
“(iv) The
Company issued to the Buyer on May 17, 2006 warrants to purchase an aggregate
of
Fifty Six Million Three Hundred Ninety Seven Thousand (56,397,000) shares of
the
Company’s Common Stock for a period of five (5) years as follows: 1) a
warrant to purchase 17,857,000 shares of the Company’s Common Stock which shall
have an exercise price of $0.05 per share, 2) a warrant to purchase 15,625,000
shares of the Company’s Common Stock shall have an exercise price of $0.055 per
share, 3) a warrant to purchase 12,500,000 shares of the Company’s Common Stock
which shall have an exercise price of $0.065 per share, and 4) a warrant to
purchase 10,415,000 shares of the Company’s Common Stock which shall have an
exercise price of $0.08 per share (collectively referred to as the “Warrants”).
The
shares of Common Stock issuable under the Warrants shall collectively be
referred to as the “Warrant
Shares”.
4. AMENDMENT
OF SECTION 4(n). Section
4(n) of the Agreement is hereby amended and replaced in its entirety with the
following:
“(n) Increase
of Authorized shares of Common Stock. The
Company shall increase its authorized shares of Common Stock to five hundred
million (500,000,000) shares of Common Stock on or before September 15,
2006.”
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5. AMENDMENT
OF SECTION 7(b). Section
7(b) is hereby amended and replaced in its entirety with the following:
(b) The
obligation of the Buyer(s) hereunder to accept the Convertible Debentures at
the
Second Closing is subject to the satisfaction, at or before the Second Closing
Date, of each of the following conditions:
(i) The
Common Stock shall be authorized for quotation on the OTCBB, trading in the
Common Stock shall not have been suspended for any reason, and all the
Conversion Shares issuable upon the conversion of the Convertible Debentures
shall be approved by the OTCBB.
(ii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 above, in which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Second Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date) and the Company shall have performed, satisfied
and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Second Closing Date. If requested by the Buyer,
the
Buyer shall have received a certificate, executed by two officers of the
Company, dated as of the Second Closing Date, to the foregoing effect and as
to
such other matters as may be reasonably requested by the Buyer including,
without limitation an update as of the Second Closing Date regarding the
representation contained in Section 3(c) above.
(iii) The
Company shall have executed and delivered to the Buyer(s) the Convertible
Debentures in the respective amounts set forth opposite each Buyer(s) name on
Schedule I attached hereto.
(iv) The
Company shall have provided the Buyer a filed copy of the Certificate of
Designations indicating that in the event that there exists an Event of Default
as defined in the Transaction Documents and specifically the Convertible
Debentures, which remains uncured for a period of thirty (30) calendar days,
the
Buyer’s shall be entitled to vote, via proxy, the Super Voting Preferred Shares
issued to Xxxxxx Xxxx and Xxxxxx Xxxxxx.
The
Company shall have certified that all conditions to the Second Closing have
been
satisfied and that the Company has increased its authorized shares of Common
Stock to at least five hundred million (500,000,000) shares of Common Stock.
If
requested by the Buyer, the Buyer shall have received a certificate, executed
by
the two officers of the Company, dated as of the Second Closing Date, to the
foregoing effect.
6.
AMENDMENT
OF SECTION 7(c). Section
7(c) is hereby amended and replaced in its entirety with the following:
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(b) The
obligation of the Buyer(s) hereunder to accept the Convertible Debentures at
the
Third Closing is subject to the satisfaction, at or before the Third Closing
Date, of each of the following conditions:
(i) The
Common Stock shall be authorized for quotation on the OTCBB, trading in the
Common Stock shall not have been suspended for any reason, and all the
Conversion Shares issuable upon the conversion of the Convertible Debentures
shall be approved by the OTCBB.
(ii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 above, in which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Third Closing
Date
as though made at that time (except for representations and warranties that
speak as of a specific date) and the Company shall have performed, satisfied
and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Third Closing Date. If requested by the Buyer, the
Buyer shall have received a certificate, executed by two officers of the
Company, dated as of the Third Closing Date, to the foregoing effect and as
to
such other matters as may be reasonably requested by the Buyer including,
without limitation an update as of the Third Closing Date regarding the
representation contained in Section 3(c) above.
(iii) The
Company shall have executed and delivered to the Buyer(s) the Convertible
Debentures in the respective amounts set forth opposite each Buyer(s) name
on
Schedule I attached hereto.
(iv) The
Company shall have certified that all conditions to the Third Closing have
been
satisfied and that the Company will file the Registration Statement with the
SEC
in compliance with the rules and regulations promulgated by the SEC for filing
thereof two (2) business days after the Third Closing. If requested by the
Buyer, the Buyer shall have received a certificate, executed by the two officers
of the Company, dated as of the Third Closing Date, to the foregoing effect.
7. ADDITION
OF NEW SECTION 7(d). A
new
subsection (d) is added to Section 7 as follows:
(d) The
obligation of the Buyer(s) hereunder to accept the Convertible Debentures at
the
Fourth Closing is subject to the satisfaction, at or before the Fourth Closing
Date, of each of the following conditions:
(i)
The
Common Stock shall be authorized for quotation on the OTCBB, trading in the
Common Stock shall not have been suspended for any reason, and all the
Conversion Shares issuable upon the conversion of the Convertible Debentures
shall be approved by the OTCBB.
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(ii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 above, in which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Fourth Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date) and the Company shall have performed, satisfied
and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Fourth Closing Date. If requested by the Buyer,
the
Buyer shall have received a certificate, executed by two officers of the
Company, dated as of the Fourth Closing Date, to the foregoing effect and as
to
such other matters as may be reasonably requested by the Buyer including,
without limitation an update as of the Fourth Closing Date regarding the
representation contained in Section 3(c) above.
(iii) The
Company shall have executed and delivered to the Buyer(s) the Convertible
Debentures in the respective amounts set forth opposite each Buyer(s) name
on
Schedule I attached hereto.
(iv) The
Company shall have certified that all conditions to the Fourth Closing have
been
satisfied and that the Company’s Registration Statement has been declared
effective by the SEC. If requested by the Buyer, the Buyer shall have received
a
certificate, executed by the two officers of the Company, dated as of the Fourth
Closing Date, to the foregoing effect.
8. EFFECT
ON OTHER TERMS.
This
Amendment shall be deemed effective as of September ___, 2006. All other terms
set forth in the Agreement shall remain unchanged and this Amendment and the
Agreement shall be deemed a single integrated agreement for all
purposes.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
the
parties have caused this Amendment No. 1 to Securities Purchase Agreement to
be
duly executed as of day and year first above written.
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COMPANY:
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By:
/s/
XXXXXX XXXXXX
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Name:
Xxxxxx X. Xxxxxx
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Title:
Chief Executive Officer
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BUYER:
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CORNELL
CAPITAL PARTNERS, LP
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By:
Yorkville Advisors, LLC
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Its:
General Partner
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By:
/s/ XXXX XXXXXX
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Name:
Xxxx Xxxxxx
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Title:
President and Portfolio Manager
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