EXHIBIT 10.2
CONFORMED COPY
AMENDMENT NO. 1
TO DECEMBER 29, 1995
SUBSCRIPTION AGREEMENT AND
JUNE 28, 1996 SUBSCRIPTION AGREEMENT
This Amendment No. 1 dated June 28, 1996 ("Amendment No. 1") to
Subscription Agreement dated December 29, 1995 (the "December 29, 1995
Subscription Agreement") and Subscription Agreement dated June 28, 1996 (the
"June 28, 1996 Subscription Agreement"), is entered into by and between Xxxx
Systems, Inc., a California corporation ("Xxxx"), and Xxxxxxxx International
Limited, a company organized under the laws of the Cayman Islands ("Xxxxxxxx").
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings in the December 29, 1995 Subscription Agreement or the June
28, 1996 Subscription Agreement.
1. LIMITATION OF ISSUANCE OF COMMON STOCK.
a. Notwithstanding anything to the contrary contained in (i) the
December 29, 1995 Subscription Agreement or the Options, the Convertible
Preferred Stock or the Warrant issued pursuant thereto, (ii) the June 28, 1996
Subscription Agreement between Xxxx and Xxxxxxxx (a copy of which is attached
hereto as Exhibit A) or the Series C Option, the Convertible Preferred Stock or
the Warrant issuable pursuant thereto, or (iii) the Articles of Incorporation of
Xxxx, as amended to the date hereof (the "Articles"), the maximum number of
shares of Common Stock (or any other class of voting stock) that shall be issued
to Xxxxxxxx pursuant to any of the foregoing, collectively, shall be 2,788,653
shares of Common Stock (which is equal 19.45% of the then outstanding Common
Stock as of December 29, 1995) (the "Maximum Limit"); PROVIDED, HOWEVER, that
for purposes of determining the number of shares of Common Stock (or any other
class of voting stock) issued to Xxxxxxxx as of any date, the number of shares
of Common Stock (or any other class of voting stock) issuable upon exercise of
the Warrant issued to Xxxxxxxx pursuant to the December 29, 1995 Subscription
Agreement and the Warrant issued to Xxxxxxxx pursuant to the June 28, 1996
Subscription Agreement shall be deemed to have been issued to Xxxxxxxx as of the
date hereof.
b. To the extent that the conversion by Xxxxxxxx of any share of
Convertible Preferred Stock issued pursuant to the December 29, 1995
Subscription Agreement or the conversion by Xxxxxxxx of any share of Convertible
Preferred Stock issued pursuant to the June 28, 1996 Subscription Agreement
would, but for this Amendment No. 1, result in the issuance to Xxxxxxxx of any
shares of Common Stock (or any other class of voting stock) in excess of the
Maximum Limit, such conversion shall not be permitted.
c. To the extent that the exercise by Xxxx of any Option issued
pursuant to the December 29, 1995 Subscription Agreement or the exercise by Xxxx
of any Option issued pursuant to the June 28, 1996 Subscription Agreement would,
but for this Amendment No. 1, require or permit the issuance to Xxxxxxxx of any
shares of Convertible Preferred Stock, the conversion of which (computed as of
the date of such exercise) would result in the issuance to Xxxxxxxx of any
shares of
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Common Stock (or any other class of voting stock) in excess of the Maximum
Limit, such exercise shall not be permitted, and such Option shall expire
without any further obligation in respect thereof on the part of Xxxxxxxx.
d. No action taken by either party consistent with the terms of this
Amendment No. 1 shall constitute a breach of or default under the December 29,
1995 Subscription Agreement or the Options, the Convertible Preferred Stock or
the Warrant issued pursuant thereto; the June 28, 1996 Subscription Agreement or
the Series C Option, the Convertible Preferred Stock or the Warrant issuable
pursuant thereto; or the Articles.
2. OPTION EXERCISE DATES. Notwithstanding anything to the contrary
contained in the December 29, 1995 Subscription Agreement, the term "Option
Exercise Date", as used in the December 29, 1995 Subscription Agreement, shall
mean the following dates:
(1) June 28, 1996;
(2) September 30, 1996;
(3) December 30, 1996;
(4) March 31, 1997; and
(5) June 30, 1997.
3. MISCELLANEOUS.
a. This Amendment No. 1 may be executed in one or more counterparts
and it is not necessary that signatures of all parties appear on the same
counterpart, but such counterparts together shall constitute but one and the
same agreement.
b. This Amendment No. 1 shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and no other person
shall have any right or obligation hereunder.
c. This Amendment No. 1 shall be governed by, and construed in
accordance with, the internal laws of the State of New York, and each of the
parties hereto hereby submits to the non-exclusive jurisdiction of any State or
Federal court in the Borough of Manhattan in the City and State of New York and
any court hearing any appeal therefrom, over any suit, action or proceeding
against it arising out of or based upon this Agreement (a "Related Proceeding").
Each of the parties hereto hereby waives any objection to any Related Proceeding
in such courts whether on the grounds of venue, residence or domicile or on the
ground that the Related Proceeding has been brought in an inconvenient forum.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, all as of the day and year first above written.
XXXX SYSTEMS, INC.
By: /S/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
XXXXXXXX INTERNATIONAL LIMITED
By: /S/ XXXXXXXX XXXXXXXX, XX.
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Name: Xxxxxxxx Xxxxxxxx, Xx.
Title: Chairman
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