EXHIBIT 10.28
AMENDMENT TO UNIT PURCHASE OPTION
This AMENDMENT (the "Amendment") to the Unit Purchase Option dated as
of July 20, 2001 (the "Option" and collectively with other outstanding options
of like tenor and effect and issued in connection with the issuance of the
Option, the "Options") between Commonwealth Associates (the "Holder") and Notify
Technology Corporation, a California corporation (the "Company"), is made and
entered into as of September 12, 2006. Capitalized terms used and not otherwise
defined in this Amendment shall have the meanings ascribed to them in the
Option.
RECITALS
A. The Option is exercisable for the Units, which Units
consist of the Preferred Shares and the Warrants (all as defined in the Option).
B. The Company has been required to record certain
accounting charges as a result of certain provisions of other currently
outstanding warrants to acquire shares of the Company's capital stock, which
warrants are in a form substantially similar to the Warrants.
C. In order to minimize similar accounting charges that
may occur when, if, and to the extent any Warrants are issued upon exercise of
the Options, the Company has requested that the Holder agree to amend the form
of Warrant attached as Appendix A to the Option in order to modify the
provisions resulting in the requirement that the Company recognize such
accounting charges.
D. The Holder believes that the Amendment is in the best
interests of the Company, the Holder, and other holders of the Company's
outstanding securities and therefore has agreed to amend the form of Warrant
attached as Appendix A to the Option as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Holder hereby
agree as follows:
1. Amendment to Section 10 of Warrants. Section 10 of the Warrant
attached as Appendix A to the Option is hereby amended to add the following as a
new Section 10(c):
"(c) Notwithstanding any contrary provision of this Warrant or this
Section 10, the maximum number of additional Warrant Shares subject to
issuance as a result of penalties upon one or more defaults described
in this Section 10 shall equal that number of additional Warrant Shares
determined if the Company remained, with respect to its first default,
in such default for five consecutive thirty (30) day periods. For
purposes of calculating such aggregate maximum, the Warrants shall be
aggregated with the outstanding Commitment Warrant to Purchase 118,151
shares of Common Stock issued on May 16, 2001 to ComVest Venture
Partners, L.P. and the outstanding warrants to acquire shares of the
Company's Common Stock issued to purchasers of the Company's Series A
Preferred Stock in July 2001, all of which warrants contain comparable
provisions to this Section 10 and all of which shall be deemed one
warrant for purposes of any calculation pursuant hereto."
2. Continuing Agreement. Except as specifically amended hereby,
all of the terms of the Option and the form of Warrant attached as Appendix A to
the Option shall remain and continue in full force and effect and are hereby
confirmed in all respects.
3. Authority; Severability. The Company and the Holder each
warrants that the person(s) signing below is/are authorized to sign this
Amendment on its behalf and to bind it to the terms of this Amendment. Should
any provision of this Amendment be held by a court of competent jurisdiction to
be invalid or illegal, such invalidity or illegality shall not invalidate the
whole of this Amendment, but rather the Amendment shall be construed as if it
did not contain the invalid or illegal part, and the rights and obligations of
the parties shall be construed and enforced accordingly.
4. Counterparts. This Amendment may be executed in counterparts
and the signature pages may be combined to create a document binding on all of
the parties hereto.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of California,
without regard to the choice of law provisions thereof.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, the Company and the undersigned have caused their
duly authorized representatives to execute this Amendment to Unit Purchase
Option as of the date first written above.
"COMPANY" NOTIFY TECHNOLOGY CORPORATION
a California corporation
By: /s/ Xxxx X. XxXxxx
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Xxxx X. XxXxxx
President & Chief Executive Officer
"HOLDER" COMMONWEALTH ASSOCIATES, L.P.
By: /s/ Xxxxxx X. X'Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. X'Xxxxxxxx
Title: CEO & President
(Signature page to Notify Technology Corporation
Amendment to Unit Purchase Option)
