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Exhibit 10.50
AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT
AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT, dated as of June 28,
1999 (this "Amendment") to that certain Securities Purchase Agreement dated as
of August 7, 1998 (as the same has been or will be amended from time to time,
the "Purchase Agreement") between XXXXXXXXX.XXX, INC., a Delaware corporation
(f/k/a Alpha Microsystems, a California corporation) (the "Company"), and
HAMPSHIRE EQUITY PARTNERS II, L.P. (f/k/a ING Equity Partners II, L.P.), a
Delaware limited partnership (the "Purchaser"), is made by and between the
Company and the Purchaser.
WHEREAS, at the First Closing and the Second Closing under the Purchase
Agreement, the Purchaser invested $15.0 million to purchase certain classes of
Preferred Stock and Warrants of the Company;
WHEREAS, the Purchase Agreement contemplates a Third Closing at which
the Purchaser would, subject to the terms and conditions of the Purchase
Agreement, invest up to an additional $5.0 million to purchase Preferred Stock
and Warrants of the Company; and
WHEREAS, both the Company and the Purchaser have confirmed their
continued desire to consummate the Third Closing, subject to the terms and
conditions of the Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, the Company and the Purchaser hereby
agree as follows:
I. SECTION Definitions. Capitalized terms used but not otherwise defined
herein shall have the meaning given to them in the Purchase Agreement or, if not
defined therein, in the Company's Certificate of Incorporation.
I. SECTION Amendments to Purchase Agreement. The Purchase Agreement is
hereby amended as of date hereof as follows:
A. Section 2.1(c) is amended and restated in its entirety as follows:
(c) The third closing (the "Third Closing") hereunder in respect
of the issuance and sale of the Class C1 Preferred Stock being purchased
by the Investor at the Third Closing will occur at the option of the
Company, and subject to the satisfaction or waiver of the applicable
terms and conditions set forth herein, take place at the offices of
Xxxxx, Xxxxx & Xxxxx in New York, New York at a time and date to be
agreed upon by the Investor and the Company (the "Third Closing Date");
provided, that the Third Closing Date shall be within five Business Days
after all conditions of the Investor and the
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Company to the Third Closing have been satisfied or waived, but in any
case the Third Closing Date shall occur, if at all, on or before June
30, 2000.
A. Section 5.4(f) is amended and restated in its entirety as follows:
(f) Closing Date. The Third Closing shall have occurred on or
prior to June 30, 2000.
I. SECTION No Implied Amendments. Except as herein amended, the Purchase
Agreement shall remain in full force and effect and is ratified in all respects.
On and after the effectiveness of this Amendment, each reference in the Purchase
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import, and each reference to the Purchase Agreement in any other agreements,
documents or instruments executed and delivered pursuant to the Purchase
Agreement, shall mean and be a reference to the Purchase Agreement, as amended
by this Amendment.
I. SECTION Costs and Expenses. The Company confirms the Company's agreement
to pay all reasonable fees, expenses and costs of Equity Partners for the
negotiation, preparation, execution and delivery of this Amendment and
amendments, as necessary, to the other Purchase Documents, in connection with
this Amendment (including the reasonable fees, expenses and disbursements of
Equity Partners' counsel) all as provided for in Section 8.1 of the Purchase
Agreement.
I. SECTION Effective Date. This Amendment shall be effective as of the date
hereof.
I. SECTION Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be executed by the Company
and the Purchaser and be deemed to be an original and all of which shall
constitute together but one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above-written.
XXXXXXXXX.XXX, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
HAMPSHIRE EQUITY PARTNERS II, L.P.
By: LEXINGTON EQUITY PARTNERS II, L.P.,
its General Partner
By: LEXINGTON EQUITY PARTNERS, INC.,
Its General Partner
By:
Name: Xxxxxxxx X. Xxxxx
Title: Authorized Signatory
