AMENDMENT NO. 2 TO
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 2 TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
(the "Amendment") is effective as of the 15th day of January, 2002, by and among
S2 TECHNOLOGIES, INC., a California corporation (the "Company") and each of
those persons and entities whose names are set forth on the Schedule of
Purchasers attached as Exhibit A to the Agreement (as defined below) (the
"Purchasers").
RECITALS
WHEREAS, the Company issued an aggregate of six million two hundred
eighty-five thousand seven hundred fifteen (6,285,715) Shares pursuant to that
certain Series B Preferred Stock Purchase Agreement, as amended to date (the
"Agreement") by and among the Company and each of those persons and entities
whose names are set forth on the Schedule of Purchasers attached thereto as
Exhibit A, dated as of October 18, 2001 (the "First Closing Date");
WHEREAS, the Company has authorized the sale and issuance of up to an
aggregate of ten million (10,000,000) shares of its Series B Preferred Stock
(the "Shares");
WHEREAS, pursuant to Sections 1.3 and 2.2 of the Agreement, not later
than the one hundred-twentieth (120th) day following the First Closing Date, at
the option of each of the Purchasers listed under the heading "Second Closing,"
on Exhibit A of the Agreement, such Purchasers may purchase from the Company,
severally and not jointly, up to an aggregate of three million six hundred
seventy-eight thousand five hundred seventy-one (3,678,571) Shares on the terms
and conditions set forth in the Agreement (the "Second Closing");
WHEREAS, pursuant to Section 2.2 of the Agreement, the specific time
and place of the Second Closing shall be agreed in writing among the Company and
a majority in interest of the Purchasers by not later than ninety (90) days
following the First Closing Date (the "Second Closing Date"), but if no such
agreement occurs, then such Second Closing shall occur 120 days after the First
Closing;
WHEREAS, the Company and the Purchasers believe it is in the best
interest of the Company and its stockholders to amend Section 2.2 of the
Agreement to extend by thirty (30) days the date by which the Second Closing
must occur and the period during which the Company and the Purchasers may agree
on the specific time and place of the Second Closing; and
WHEREAS, Section 6.6(a) of the Agreement provides that the Agreement
may be amended upon the written consent of the Company and holders of a majority
of the outstanding Shares issued pursuant to the Agreement.
Any capitalized term used in the Amendment and not defined herein shall
have the meaning assigned to such term in the Agreement.
1.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing promises and the
mutual covenants set forth herein, the Purchasers agree as follows:
2. AMENDMENT AND RESTATEMENT OF SECTION 2.2: Pursuant to Section 6.6(a) of
the Agreement, the parties hereby delete current Section 2.2 of the
Agreement and amend and restate such Section 2.2 in its entirety to
read as follows:
The closing of the sale and purchase of up to the total number
of Shares set forth under the heading "Second Closing" on
Exhibit A (the "Second Closing," the "First Closing," and the
"Subsequent First Closing" are sometimes referred to herein
collectively as the "Closing") shall take place at the offices
of Xxxxxx Godward LLP (as set forth above) not later than 150
days following the First Closing. The specific time and place
of the Second Closing shall be agreed in writing among the
Company and a majority in interest of the Purchasers by not
later than 120 days following the First Closing (such date is
hereinafter referred to as the "Second Closing Date"), but if
no such agreement occurs, then such Second Closing shall occur
150 days after the First Closing (if such date is not a
business day (defined as any weekday other than a United
States of America or California holiday) then such Second
Closing shall be on the first immediately following business
day). In connection with each Purchaser's consent to the date
of the Second Closing, each such Purchaser shall state in
writing the portion of the Shares set forth opposite such
Purchaser's name under the heading "Second Closing" on Exhibit
A that it intends to purchase at said Second Closing and shall
submit payment for the Shares that it intends to purchase by
not later than 15 days prior to the scheduled date of the
Second Closing (the "Second Closing Payment Deadline"). If (a)
a Purchaser states in writing that it intends to purchase
fewer than the full number of Shares set forth opposite such
Purchaser's name under the heading "Second Closing" on Exhibit
A, then it shall forfeit its right to purchase all other
Shares listed for its purchase at the Second Closing (the
"Forfeited Shares") or (b) a Purchaser fails to deliver
payment for the Shares that it intends to purchase at the
Second Closing by the Second Closing Payment Deadline, then
said Purchaser shall be deemed to have forfeited its right to
purchase all Shares for which it has not paid (also the
"Forfeited Shares"). Upon any such forfeiture, Oryx Ventures
may itself purchase, or it may select one or more third
parties that are reasonably acceptable to the Board of
Directors of the Company to purchase, any or all of such
Forfeited Shares at the Second Closing. All such sales of the
Forfeited Shares shall be made on the terms and conditions set
forth in this Agreement as they apply to the Second Closing.
Any third party participating in such Second Closing shall
become a party to this Agreement by executing and delivering a
counterpart signature page to this Agreement and shall
thereafter be deemed a "Purchaser" and a party hereunder and
such person shall also be
2.
required to execute all other documents required of Purchasers
in a Closing. At the Second Closing, the Company shall update
the attached Exhibit A to reflect the actual identities of
each Purchaser and the respective amounts purchased at each
Closing, and each Purchaser hereby consents to such amendment
by the Company of said Exhibit A.
2. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
3. GOVERNING LAW. This Amendment shall be governed in all respects by the
laws of the State of California as such laws are applied to agreements
between California residents entered into and performed entirely in
California, without regard to any state's conflict of laws principles.
4. NO OTHER CHANGES. Except as otherwise provided herein, all the terms
and conditions of the Agreement which are not inconsistent herewith
shall remain in full force and effect.
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3.
IN WITNESS WHEREOF, the parties hereto have executed AMENDMENT NO. 2 TO
SERIES B PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in the
first paragraph hereof.
COMPANY: PURCHASERS:
S2 TECHNOLOGIES, INC. ORYX VENTURES
Signature: \s\ Xxxx Xxxxxxxxx Signature: \s\ Xxxx Xxxxxxxx
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Print Name: Xxxx Xxxxxxxxx Print Name: Xxxx Xxxxxxxx
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Title: President and CEO Title: CEO
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Address: 0000 Xxx Xxxxx Xxxxxx
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Xxxxxxx, XX 00000
----------------- PROFILE VENTURE PARTNERS FUND 1, L.P.
Signature: \s\ Xxxxxxx Xxxxxxx
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Print Name: Xxxxxxx Xxxxxxx
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Title: Managing Director
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STAR TRUST 1982
Signature:
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Print Name:
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Title:
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VMR HIGH OCTANE FUND
Signature: \s\ Xxxxxxx Xxxxxxx
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Print Name: Xxxxxxx Xxxxxxx
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Title: Director
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4.
XXXXXXXX INVESTMENTS LIMITED
Signature: \s\ Xxxxx Xxxxxxx
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Print Name: Xxxxx Xxxxxxx
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Title: Secretary
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DIABLO PARTNERS
Signature: \s\ Xxxxxxx Xxxxx
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Print Name: Xxxxxxx Xxxxx
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Title: Managing Director
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5.
