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EXHIBIT 4.3
AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT TO STOCK PURCHASE AGREEMENT, dated June 30, 1998, is
made and entered into between I3S FUNDING I, LLC, a North Carolina limited
liability company (the "Purchaser"); I 3S, INC., a Texas corporation (the
"Company"); XXXXX X. XXXXX, XXXX X. XXXXXXX, XXXX X. XXXXX, XX., XXXXXXX XX
PRICE and XXXXXX XXXXXX (the "Shareholders").
W I T N E S S E T H:
WHEREAS, the parties executed a Stock Purchase Agreement dated as of
March 31, 1998 (the "Stock Purchase Agreement") pursuant to which Purchaser
purchased 134,029 shares of the Company's Class B Common Stock, no par value per
share; and
WHEREAS, such purchase was pursuant to a plan (the "Plan") that had
been approved by the Company's Board of Directors to issue to Purchaser and
others, for the aggregate amount of $5,000,000, shares of the Company's common
stock representing twenty percent (20%) of all outstanding common stock of the
Company on a fully diluted basis (i.e. calculated as if all outstanding options,
warrants or other rights to acquire or purchase shares of the Company's common
stock, had been exercised); and
WHEREAS, in issuing 134,029 shares to Purchaser pursuant to the Stock
Purchase Agreement, the parties erroneously failed to take into account the
additional shares that would be issued for the remaining $3,500,000 that would
be paid pursuant to the Plan; and
WHEREAS, the parties also have been in dispute as to the options,
warrants or other rights to acquire or purchase shares that were to be included
in determining the number of shares that were to be considered in such 20%
calculation; and
WHEREAS, the parties desire to correct said error and resolve their
dispute so that the aggregate amount of common shares issued to Purchaser for
its $1,500,000 payment on March 31, 1998 represents thirty percent (30%) of the
shares that will have been issued to Purchaser and others in 1998 for the
aggregate amount of $5,000,000.
WHEREAS, on May 22, 1998 the Company declared a 5 for 1 split of its
outstanding stock (the "Stock Split").
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements, representations and warranties contained in this Amendment and in
the Stock Purchase Agreement, and in consideration of the covenants of Purchaser
under the stock purchase agreements and the voting trust agreement to be
executed in connection with the issuance of the Company's Common Stock for the
remaining $3,500,000 that is to be paid by Spotswood Capital, LLC and Blue Ridge
Investors Limited Partnership, the parties hereto agree as follows:
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1. Replacement Stock Certificate. To correct the error and resolve the
parties' dispute as described above, the Company shall issue to Purchaser an
additional 15,971 (calculated before giving effect to the Stock Split) shares of
the Company's Class B Common Stock. To evidence such issuance, as well as the
Stock Split, Purchaser shall return to the Company its certificate for 134,029
shares of the Company's Class B Common Stock, and the Company shall issue to
Purchaser a replacement certificate representing 750,000 shares of the Company's
Class B Common Stock.
2. Amendments to Stock Purchase Agreement. To reflect the additional
15,971 shares being issued to Purchaser, as well as the Stock Split, the Stock
Purchase Agreement is hereby amended as follows:
(a) The reference to "134,029" in the recital of the Stock
Purchase Agreement, and the reference to "One Hundred Thirty Four Thousand
Twenty Nine (134,029)" in Section 1.a. of the Stock Purchase Agreement, are
hereby deleted and replaced with "750,000"; and
(b) The references to "$3.529" in Sections 2.g.i. and 2.g.v.
of the Stock Purchase Agreement are hereby deleted and replaced with
"($0.6927)".
3. Miscellaneous. Except as expressly amended by this Amendment, all
the terms and provisions of the Stock Purchase Agreement shall remain unmodified
and in full force and effect. This Amendment, together with the Stock Purchase
Agreement, represents the entire agreement of the parties with respect to the
matters addressed herein, and may not be modified or amended except by the
written agreement of all parties. This Amendment may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. This Amendment
shall be governed by and construed in accordance with the laws of the State of
North Carolina.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized representatives on the date first above
written.
ATTEST: I 3S, INC.
/s/ illegible By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President
I3S FUNDING I, L.L.C.
By: GENEVA ASSOCIATES, L.L.C., Manager
By: /s/ Xxxxx Xxxxx Xxxxxx
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Xxxxx Xxxxx Xxxxxx, Member-Manager
The Shareholders execute this Amendment solely for the purpose of
consenting to the terms hereof and waiving any and all preemptive rights with
respect to the issuance of the shares of the Company's Class B Common Stock as
contemplated hereunder, which rights are hereby waived.
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxx, Xx.
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Xxxx X. Xxxxx, Xx.
/s/ Charles Bo Price
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Charles Bo Price
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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