AMENDMENT NUMBER 1 TO WARRANT
AMENDMENT
NUMBER 1
TO
WARRANT
THIS
IS
AMENDMENT NUMBER 1 (“this Amendment”) that is being executed and delivered by
and between Xxxxxx Partners LP (“Xxxxxx”) and Speedemissions, Inc., a Florida
corporation (the “Company”), and dated effective as of October 14, 2005 in order
to amend that certain First Restated Common Stock Purchase Warrant “A” to
purchase 26,214,953 shares of the Company’s Common Stock dated June 30, 2005
(the “Warrant”) and by which Xxxxxx and the Company, in consideration of the
mutual promises contained in the Warrant and in this Amendment and other
good
and valuable consideration (the sufficiency, mutuality and adequacy of which
are
hereby acknowledged), hereby agree as follows:
| 1. |
Amendment
to Exercise Price.
The Exercise Price, as such term is defined in the Warrant shall
be
$0.12.
|
| 2. |
No
Other Effect on the Warrant.
Except as amended by this Amendment, the Warrant remains in full
force and
effect.
|
| 3. |
Effective
Date.
This Amendment is effective October 14,
2005.
|
| 4. |
Section
6 of the Warrant is restated as follows:
|
6. Maximum
Exercise.
The
Warrant Holder shall not be entitled to exercise this Warrant
on a Date of Exercise in connection with that number of shares of Common
Stock
which would be in excess of the sum of (i) the number of shares of Common
Stock
beneficially owned by the Warrant Holder and its affiliates on an exercise
date,
and (ii) the number of shares of Common Stock issuable upon the exercise
of this
Warrant with respect to which the determination of this limitation is being
made
on an exercise date, which would result in beneficial ownership by the Warrant
Holder and its affiliates of more than 4.9% of the outstanding shares of
Common
Stock on such date. This Section 6 may be waived or amended only with the
consent of the Holder and the consent of holders of a majority of the shares
of
outstanding Common Stock of the Company who are not Affiliates. For the purposes
of the immediately preceding sentence, the term “Affiliate” shall mean any
person: (a) that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Company;
or
(b) who beneficially owns (i) any shares of the Company’s Series A Convertible
Preferred Stock, (ii) the Company’s Common Stock Purchase Warrant dated October
14, 2005, or (iii) this Warrant. For the purposes of the immediately preceding
sentence, beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended, and Regulation
13d-3
thereunder.
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| 5. |
Section
9 of the Warrant is restated as follows:
|
9. Sale
or Merger of the Company.
Upon a
Change in Control, the restriction contained in Section 6 shall immediately
be
released and the Warrant Holder will have the right to exercise this Warrant
concurrently with such Change in Control event. For purposes of this Warrant,
the term “Change in Control” shall mean a consolidation or merger of the Company
with or into another company or entity in which the Company is not the surviving
entity or the sale of all or substantially all of the assets of the Company
to
another company or entity not controlled by the then existing stockholders
of
the Company in a transaction or series of transactions.
| 6. |
Miscellaneous.
|
(a) Captions;
Certain Definitions.
Titles
and captions of or in this Amendment are inserted only as a matter of
convenience and for reference and in no way define, limit, extend or describe
the scope of this Amendment or the intent of any of its provisions. The parties
to this Amendment agree to all definitions in this statement of the parties
to
this Amendment. A capitalized term in this Amendment has the same meaning
as it
has as a capitalized term in the Warrant unless the context clearly indicates
to
the contrary.
(b) Controlling
Law.
This
Amendment is governed by, and shall be construed and enforced in accordance
with
the laws of the State of New York (except the laws of that jurisdiction that
would render such choice of laws ineffective).
(c) Counterparts.
This
Amendment may be executed in one or more counterparts (one counterpart
reflecting the signatures of all parties), each of which shall be deemed
to be
an original, and it shall not be necessary in making proof of this Amendment
or
its terms to account for more than one of such counterparts. This Amendment
may
be executed by each party upon a separate copy, and one or more execution
pages
may be detached from a copy of this Amendment and attached to another copy
in
order to form one or more counterparts.
Signature
Page Follows
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DULY
EXECUTED and delivered by Xxxxxx and the Company, as of October 14, 2005
effective as set forth above.
| Xxxxxx: | Xxxxxx Partners LP | |
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx Xxxxxx |
||
| Title: Managing Partner | ||
| Company: | Speedemissions, Inc. | |
| |
|
|
| By: | /s/ Xxxx Xxxxxxxxxxx | |
|
Name: Xxxx Xxxxxxxxxxx |
||
| Title: President | ||
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