POGOTEC, INC. AMENDMENT NO. 2 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT
Exhibit 3.10
AMENDMENT NO. 2 TO THE
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT (the “Amendment No. 2”) is made as of April 4 2017, by and between PogoTec, Inc., a Delaware corporation (the “Company”), and the undersigned, together constituting at least a minimum number of parties necessary to amend that certain Series B Preferred Stock Purchase Agreement dated August 24, 2016, as amended (the “Purchase Agreement”), by and between the Company and the persons and entities listed on the Schedule of Investors (each an “Investor” and collectively, as the “Investors”) attached thereto as Exhibit A. Capitalized terms not otherwise defined herein shall have the same meanings ascribed to them in the Purchase Agreement.
RECITALS
WHEREAS, the parties hereto desire to amend certain definitions under to the Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree to amend the Purchase Agreement as follows:
1. Section 1.3(k) of the Purchase Agreement is hereby amended in its entirety to read as follows:
“(k) “Restated Certificate” means the amended and restated certificate of incorporation of the Company, in substantially the form attached hereto (the “Original Series B Certificate”) for any Closing prior to the date of filing of a certificate of amendment increasing the authorized shares of Series B Preferred to 1,350,000 (the “Certificate of Amendment”) and means the Original Series B Certificate as amended by the Certificate of Amendment for any Closing after the date of filing of the Certificate of Amendment.”
2. Section 1.3(n) of the Purchase Agreement is hereby amended in its entirety to read as follows:
“(n) “Shares” means up to 954,198 shares of Series B Preferred to be sold under this Agreement for any Closing prior to the date of filing of the Certificate of Amendment and means up to 1,192,748 shares of Series B Preferred to be sold under this Agreement for any Closing after the date of filing of the Certificate of Amendment unless the Board authorizes a larger number of shares to be sold under this Agreement, in its sole discretion.”
3. Section 1.3(p) of the Purchase Agreement is hereby amended in its entirety to read as follows:
“(p) “Subsequent Closing Period” means any time between the Initial Closing Date and April 1, 2017.”
4. Except as so amended by this Amendment No. 2, the Purchase Agreement is not amended or modified in any way.
5. This Amendment No. 2 may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| POGOTEC, INC., | |
| a Delaware corporation | |
| /s/ Xxxxxx X. Xxxx | |
| Xxxxxx X. Xxxx | |
| President and CEO |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxxx X. Xxxxxxxx XX | |
| (Print investor name) | |
| /s/ Xxxxxxxx X. Xxxxxxxx XX | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxx X. Xxxxxxxxxxx MD | |
| (Print investor name) | |
| /s/ Xxxxxx X. Xxxxxxxxxxx MD | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxx X. Xxxx O.D. Ph.D | |
| (Print investor name) | |
| /s/ Xxxx X. Xxxx O.D. Ph.D | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxx Xxxxxxxxxxx | |
| (Print investor name) | |
| /s/ Xxxxx Xxxxxxxxxxx | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Niedermark LLC | |
| (Print investor name) | |
| /s/ Niedermark LLC | |
| (Signature) | |
| Xxxx Xxxxxx | |
| (Print name of signatory, if signing for an entity) | |
| president | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxx Xxxxxxx | |
| (Print investor name) | |
| /s/ Xxxxxxx Xxxxxxx | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxx Xxxxxx MD | |
| (Print investor name) | |
| /s/ Xxxxxxx Xxxxxx MD | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxx X. Xxxxx and Xxxxxx X. Xxxxx | |
| (Print investor name) | |
| /s/ Xxxxx X. Xxxxx and Xxxxxx X. Xxxxx | |
| (Signature) | |
| Xxxxx Xxxxx | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxx Xxxxxxx | |
| (Print investor name) | |
| /s/ Xxxxx Xxxxxxx | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxx X. Xxxxx OD | |
| (Print investor name) | |
| /s/ Xxxxxxx X. Xxxxx OD | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxx Xxxxxxxxxx | |
| (Print investor name) | |
| /s/ Xxxxxx Xxxxxxxxxx | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxx Xxxxxx Faux | |
| (Print investor name) | |
| /s/ Xxxxxxx Xxxxxx Faux | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxxxxxx & Xxxxxxx Associates Ltd. | |
| (Print investor name) | |
| /s/ Xxxxxx Xxxx | |
| (Signature) | |
| Xxxxxx Xxxx | |
| (Print name of signatory, if signing for an entity) | |
| President | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxxxxxx & Xxxxxxx Profit Sharing Plan & Trust DTD 6/17/85 | |
| (Print investor name) | |
| /s/ Xxxxxx Xxxx | |
| (Signature) | |
| Xxxxxx Xxxx | |
| (Print name of signatory, if signing for an entity) | |
| Trustee | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxxxxx & Xxxxxxx Profit Sharing Plan & Trust DTD 6/17/85 | |
| (Print investor name) | |
| /s/ Xxxxxx Xxxx | |
| (Signature) | |
| Xxxxxx Xxxx | |
| (Print name of signatory, if signing for an entity) | |
| Trustee | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxx X. Xxxx | |
| (Print investor name) | |
| /s/ Xxxxxxx X. Xxxx | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | ||
| KIPLIN CAPITAL FUND I, LLC, | ||
| by its Managing Member, | ||
| KIPLIN CAPITAL, LLC, | ||
| /s/ Xxxxxxxx X. Xxxxxxxx, XX | ||
| Name: Xxxxxxxx X. Xxxxxxxx, XX | ||
| Title: Manager | ||
| /s/ Xxxx X. Xxxxxxxx | ||
| Name: Xxxx X. Xxxxxxxx | ||
| Title: Manager | ||
| /s/ Xxxxxxxx X. Xxxxxxxxx | ||
| Name: Xxxxxxxx X. Xxxxxxxxx | ||
| Title: Manager | ||
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxx Xxxxxxx Xxxxx | |
| (Print investor name) | |
| /s/ Xxx Xxxxxxx Xxxxx | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxx Xxxxx | |
| (Print investor name) | |
| /s/ Xxxx Xxxxx | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| X.X. Xxxx Xxxxx II Revocable Trust | |
| (Print investor name) | |
| /s/ Ford Xxxxx | |
| (Signature) | |
| Ford Xxxxx | |
| (Print name of signatory, if signing for an entity) | |
| Trustee | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Fly High Eyes LLC | |
| (Print investor name) | |
| /s/ Xxxxxxx Xxxxx | |
| (Signature) | |
| Xxxxxxx Xxxxx | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxx X. Xxxx | |
| (Print investor name) | |
| /s/ Xxxxxx X. Xxxx | |
| (Signature) | |
| (Print name of signatory, if signing for an entity) | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed and delivered as of the date and year first written above.
| INVESTOR: | |
| Xxxxxxx Arch Pty Ltd | |
| (Print investor name) | |
| /s/ Xxxx Xxxxxxx | |
| (Signature) | |
| Xxxx Xxxxxxx | |
| (Print name of signatory, if signing for an entity) | |
| Director | |
| (Print title of signatory, if signing for an entity) |
(PogoTec, Inc. Amendment No.2 to the Series B Preferred Stock Purchase Agreement)
