AMENDMENT NO. 2 TO PLACEMENT AGENCY AGREEMENT
AMENDMENT
NO. 2 TO
THIS
AMENDMENT NO. 2 TO PLACEMENT AGENCY AGREEMENT (this
“Amendment”)
is
effective as of May 16, 2007 by and between INTERSTATE
DATA USA, INC.,
a
Delaware corporation (the "Company"),
and
NEWBRIDGE
SECURITIES CORPORATION,
a
Virginia corporation (the “Placement
Agent”).
The
Company and the Placement Agent are referred to together as the "Parties".
RECITALS:
WHEREAS,
the
Parties entered into that certain Placement Agency Agreement on February
16,
2007 (the “Original
Agreement”),
a
copy of which is attached hereto as Exhibit
A;
WHEREAS,
the
Parties entered into that certain Amendment No. 1 to Placement Agency Agreement
on March __, 2007 (the "First
Amendment”),
a
copy of which is attached hereto as Exhibit
B;
WHEREAS,
the
Parties desire to amend the Original Agreement and Amendment No. 1 to reflect
certain subsequent agreements that they have reached as documented in this
Amendment;
WHEREAS,
Section
20 of the Original Agreement provides that the Original Agreement may only
be
amended by a writing signed by both parties thereto; and
WHEREAS,
the
Parties wish to document their agreement regarding these matters in this
Amendment.
NOW,
THEREFORE,
in
consideration of the mutual terms, conditions and other agreements set forth
herein, and for other valuable consideration, the receipt and adequacy of
which
are hereby conclusively acknowledged, the Parties, intending to be legally
bound, hereby agree as follows:
1. Recitals.
The
foregoing recitals are true and correct. Each of the foregoing recitals to
this
Amendment is hereby incorporated into and made a part of this
Amendment.
2. Definitions.
Unless
indicated otherwise, each capitalized term used in this Amendment shall have
the
same meaning assigned to it in the Original Agreement or the First Amendment,
as
applicable.
3. Amendments.
The
Parties hereby approve and adopt the following amendments to the Original
Agreement and Amendment No. 1, as applicable:
(a) The
introductory paragraph of the Original Agreement is hereby deleted in its
entirety and is of no further force or effect. In its place the Parties hereby
approve and adopt the insertion of the following new introductory
paragraph:
"This
Placement Agency Agreement (the "Agreement") confirms the retention by
Interstate Data USA, Inc., a Delaware corporation (the "Company"), of Newbridge
Securities Corporation, a Virginia corporation (the "Placement Agent"), to
act
as the placement agent on a "best efforts" basis in connection with the private
placement (the "Placement") of Units (as defined herein) of the Company on
the
terms set forth below. The Units shall consist of shares of the Company's
Preferred Stock (as defined herein) and Warrants (as defined herein) to purchase
the Company's $0.001 par value per share common stock (the "Common Stock").
The
Company acknowledges and agrees that the Agreement is not an agreement by
the
Placement Agent or any of its affiliates to underwrite or purchase any
securities or otherwise provide any financing. Under no circumstances will
the
Placement Agent be obligated to purchase any Units for its own account, and
in
soliciting purchases of Units, the Placement Agent shall act solely as the
Company's agent and not as principal. Notwithstanding the foregoing, it is
understood and agreed that the Placement Agent (or its affiliates) may, solely
at its discretion and without any obligation to do so, purchase Units as
principal."
(b) Section
1(a)(i) of the Original Agreement is hereby deleted in its entirety and is
of no
further force or effect. In its place, the Parties hereby approve and adopt
the
insertion of the following new Section 1(a)(i):
"(i) One
(1)
share (collectively, the "Shares")
of the
8% Series A Convertible Preferred Stock of the Company, par value $0.001
per
share (the "Preferred
Stock");
and".
(c) Amendment
of Section 1(b) of the Original Agreement (as amended by the First
Amendment).
Paragraph 1(b) of the Original Agreement (as amended by the First Amendment)
is
hereby deleted in its entirety and is of no further force or effect. In its
place the Parties hereby approve and adopt the insertion of the following
new
Section 1(b):
"(b) The
Placement Agent accepts its appointment as exclusive placement agent and
shall
use its best efforts to sell the Units, except as otherwise provided in Section
3(a) hereof. The Initial Closing (the "Initial
Closing")
shall
occur within fifteen (15) calendar days after a minimum of $500,000 of Units
has
been sold (the “Initial
Closing Date”),
and
there shall be subsequent closings of the Placement as contemplated hereby
(each, a “Subsequent
Closing”
and
together with the Initial Closing, each, a “Closing”
and
collectively, the “Closings”)
until
the date on which the Maximum Amount is subscribed for by investors in the
Placement (the “Investors”)
and
accepted by the Company (the “Final
Closing Date”).
Unless terminated earlier, the offering period for the Placement (the
“Offering
Period”)
will
expire on the earlier to occur of: (i) June 30, 2007 (the “Termination
Date”),
(ii)
the date on which the Maximum Amount is subscribed for and accepted by the
Company or (iii) the termination of the Placement or this Agreement. Upon
the
written consent of the Placement Agent and the Company, the Termination Date
shall be automatically extended on a monthly basis without notice to Investors
unless otherwise terminated in writing by either party pursuant to Section
5
herein."
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4. Incorporation
of Changes.
The
Parties covenant and agree that the amendments contemplated in Section 3
of this
Amendment shall be deemed to be incorporated by reference into and made a
part
of the Original Agreement.
5. No
Other Changes.
Except
as specifically stated in this Amendment, all provisions of the Original
Agreement (as amended by the First Amendment) remain in full force and effect.
[SIGNATURES
CONTAINED ON NEXT PAGE]
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IN
WITNESS WHEREOF,
the
Parties have executed this Amendment No. 2 to Placement Agency Agreement
as of
the date first above written.
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INTERSTATE
DATA USA, INC.
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| By: |
/s/
Xxxxxxx X. Xxxxxxxxx
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Name:
Xxxxxxx X. Xxxxxxxxx
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Its:
President
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NEWBRIDGE
SECURITIES CORPORATION
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
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Name:
Xxxxxxx X. Xxxxxxxxx
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Its:
Director of Investment Banking
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EXHIBIT
A
ORIGINAL
PLACEMENT AGENCY AGREEMENT
EXHIBIT
B
AMENDMENT
NO. 1 TO PLACEMENT AGENCY AGREEMENT
