AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
Exhibit 10.1
This Amendment No. 1 to Loan and Security Agreement (this “Amendment”) is entered
into as of this 5th day of August, 2010, by and between Xxxxx.xxx Corporation, a Delaware
corporation (“Borrower”), and Silicon Valley Bank (“Bank”). Capitalized terms used herein
without definition shall have the same meanings given them in the Loan Agreement (as defined
below).
Recitals
A. Borrower and Bank have entered into that certain Loan and Security Agreement dated as of
June 28, 2010 (as amended to date, the “Loan Agreement”), pursuant to which Bank agreed to extend
and make available to Borrower certain advances of money.
B. Borrower desires that Bank amend the Loan Agreement to permit a buy-back program for
Borrower’s capital stock.
C. Subject to the representations and warranties of Borrower herein and upon the terms and
conditions set forth in this Amendment, Bank is willing to so amend the Loan Agreement.
Agreement
NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be
legally bound, the parties hereto agree as follows:
1. Amendment to Loan Agreement.
1.1 Section 13 (Definitions). The definition for the following term is amended and restated
in its entirety as follows:
““Permitted Distributions” are:
(a) purchases of capital stock from former employees, consultants and directors pursuant to
repurchase agreements or other similar agreements in an aggregate amount not to exceed $50,000 in
any fiscal year provided that at the time of such purchase no Event of Default has occurred and is
continuing;
(b) distributions or dividends consisting solely of Borrower’s capital stock;
(c) purchases for value of any rights distributed in connection with any stockholder rights
plan;
(d) purchases of capital stock or options to acquire such capital stock (i) pursuant to a
common stock buyback program approved by Borrower’s Board of Directors in an amount not in
excess of $2,000,000 in the aggregate; or (ii) with the proceeds received from a substantially
concurrent issuance of capital stock or convertible securities;
(e) purchases of capital stock pledged as collateral for loans to employees;
(f) purchases of capital stock in connection with the exercise of stock options or stock
appreciation rights by way of cashless exercise or in connection with the satisfaction of
withholding tax obligations; and
(g) purchases of fractional shares of capital stock arising out of stock dividends, splits or
combinations or business combinations.”
2. Borrower’s Representations And Warranties. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material respects as of the
date hereof (except to the extent such representations and warranties relate to an earlier date, in
which case they are true and correct as of such date), and (ii) no Event of Default has occurred
and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and
to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation, bylaws and other organizational documents of Borrower
delivered to Bank on the Effective Date remain true, accurate and complete and have not been
amended, supplemented or restated and are and continue to be in full force and effect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower
of its obligations under the Loan Agreement, as amended by this Amendment, have been duly
authorized by all necessary corporate action on the part of Borrower; and
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding
obligation of Borrower, enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles relating to or affecting
creditors’ rights.
3. Limitation. The consents, amendments and modifications set forth in this
Amendment shall be limited precisely as written and shall not be deemed (a) to be a waiver or
modification of any other term or condition of the Loan Agreement or of any other instrument or
agreement referred to therein or to prejudice any right or remedy which Bank may now have or may
have in the future under or in connection with the Loan Agreement or any instrument or agreement
referred to therein; or (b) to be a consent to any future amendment or modification or
waiver to any instrument or agreement the execution and delivery of which is consented to
hereby, or to any waiver of any of the provisions thereof. Except as expressly amended hereby, the
Loan Agreement shall continue in full force and effect.
4. Effectiveness. This Amendment shall become effective upon the satisfaction of all
the following conditions precedent:
4.1 Amendment. Borrower and Bank shall have duly executed and delivered this Amendment to
Bank.
4.2 Payment of Bank Expenses. Borrower shall have paid all Bank Expenses (including all
reasonable attorneys’ fees and reasonable expenses) incurred through the date of this Amendment.
5. Counterparts. This Amendment may be signed in any number of counterparts, and by
different parties hereto in separate counterparts, with the same effect as if the signatures to
each such counterpart were upon a single instrument. All counterparts shall be deemed an original
of this Amendment.
6. Integration. This Amendment, the Loan Documents and any documents executed in
connection herewith or pursuant hereto contain the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior agreements, understandings, offers and
negotiations, oral or written, with respect thereto and no extrinsic evidence whatsoever may be
introduced in any judicial or arbitration proceeding, if any, involving this Amendment or the Loan
Documents; except that any financing statements or other agreements or instruments filed by Bank
with respect to Borrower shall remain in full force and effect.
7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date first written above.
| Borrower: | Xxxxx.xxx Corporation | |||
| a Delaware corporation | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Printed Name: | Xxxxxx Xxxxx | |||
| Title: | CFO | |||
| Bank: | Silicon Valley Bank | |||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Printed Name: | Xxxxxxxx Xxxxx | |||
| Title: | Relationship Manager | |||
