EXHIBIT 10.22
SMARTDISK CORPORATION
FIRST AMENDMENT TO
SERIES A REDEEMABLE, CONVERTIBLE
PREFERRED STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT (this "Amendment"), is made and entered into as
of the 24th day of December, 2002, among SMARTDISK CORPORATION, a Delaware
corporation (the "Company"), on the one hand, and ADDISON X. XXXXXXX and
PHOENIX HOUSE INVESTMENTS, LP (collectively the "Investors" and each
individually an "Investor"), on the other hand.
RECITALS
A. The Company and the Investors are parties to that certain Series A
Redeemable, Convertible Preferred Stock Purchase Agreement dated December 9,
2002 ("Purchase Agreement"), pursuant to which the Company agreed to issue and
sell to the Investors 2,552,364.8 shares (the "Shares") of Series A Redeemable
Convertible Preferred Stock par value $.001 per share (the "Preferred Stock"),
at a per share purchase price of $1.00.
B. Pursuant to Section 5.06 of the Purchase Agreement, modification or
amendment to the Purchase Agreement requires the written consent of the Company
and the Investors.
C. The Company and the Investors desire to amend the Purchase
Agreement as provided herein;
D. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound, the parties agree as follows:
ARTICLE 1
1.01 Amendment. The Purchase Agreement is hereby amended by
deleting Sections 4.01 and 4.03 in their entirety and replacing them by the
following:
"4.01 Reservation of Conversion Shares. The Company shall at all times
reserve and keep available out of its authorized but unissued shares
of Common Stock, for the purpose of effecting the conversion of the
Shares, such number of its duly authorized shares of Common Stock as
shall be sufficient to effect the conversion of the Shares from time
to time outstanding. If at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the
conversion of the Shares, the Company will forthwith take such
corporate action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be
sufficient for such purposes. The Company will use reasonable efforts
to obtain any authorization, consent, approval or other action by or
make any filing with any court or administrative body that may be
required under applicable state securities laws in connection with the
issuance of shares of Common Stock upon conversion of the Shares.
Without limiting the generality of the foregoing, upon the Company's
receipt of written notice from a majority in interest of the Investors
requesting the Company to call a special meeting of its stockholders
to
approve the Company's issuance of the Conversion Shares as
contemplated by Marketplace Rule 4350(i) of the Nasdaq Stock Market,
the Company agrees to promptly call such special meeting of its
stockholders, and in connection therewith, to promptly file a
preliminary proxy statement with the Securities and Exchange
Commission and otherwise use all reasonable commercial efforts to
obtain such stockholder approval; provided, however, that the Company
agrees that unless (a) it has provided the Investors with written
notice of abandonment of the Rights Offering, as defined below, and a
written commitment not to conduct a rights offering to its
shareholders for two years from the date of the notice without the
written consent of a majority in interest of the Investors, or (b) the
Rights Offering has been conducted and closed, the Company shall not
hold such special meeting of stockholders without the prior written
consent of a majority in interest of the Investors."
"4.03 Rights Offering. Promptly after the Closing, the Company will
amend the Rights Offering Registration Statement to reflect a Rights
Offering (the "Rights Offering"), pursuant to which each shareholder
of the Company, including the Investors, will have the right to
purchase, at a per share subscription price of $0.32, 1.25 shares of
Common Stock for each share of Common Stock held as of the record date
for the Rights Offering (as determined by the Company's Board of
Directors), and thereafter use all reasonable efforts to cause such
Rights Offering Registration Statement to become and remain effective
for the period of distribution contemplated thereby. The Company
agrees that the subscription price in the Rights Offering may be paid
in cash or by tendering shares of Series A Redeemable Convertible
Preferred Stock registered in the rights holder's name, to be valued
at $1.00 per share."
1.02 Force and Effect.Except to the extent expressly modified
above, the Purchase Agreement shall remain in full force and effect as
originally executed.
ARTICLE 2
2.01 Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Florida for all purposes and in all
respects, without regard to the conflict of law provisions of such state.
2.02 Entire Agreement. This Amendment, the Purchase Agreement, the
Registration Rights Agreement and the Certificate of Designations constitute
the sole and entire agreement of the parties with respect to the subject matter
hereof.
2.03 Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute the same instrument.
2.04 Amendments and Waivers. This Amendment may be amended or
modified, and provisions hereof may be waived, with the written consent of the
Company and the Investors.
2.05 Titles and Subtitles. The titles and subtitles used in this
Amendment are for convenience only and are not to be considered in construing
or interpreting any term or provision of this Agreement.
IN WITNESS WHEREOF, the Company and the Investors have executed this
Amendment as of the date first above written.
THE COMPANY:
SMARTDISK CORPORATION
By: /S/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, President and
Chief Executive Officer
THE INVESTORS:
/s/ Addison X. Xxxxxxx
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ADDISON X. XXXXXXX, individually
PHOENIX HOUSE INVESTMENTS, LP
By: PHOENIX HOUSE INVESTMENTS GP, INC.,
its general partner
By: /S/ Addison X. Xxxxxxx
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Addison X. Xxxxxxx, President
