EXHIBIT 10.61
AMENDMENT NO. 1 TO
SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO THE SECURITIES PURCHASE AGREEMENT is made as of
February 7, 2006 (this "Amendment"), by and among NS8 Corporation, a Delaware
corporation (the "Company") and each of the Buyers listed on Schedule I of the
Securities Purchase Agreement, dated as of November 14, 2005 (individually, a
"Buyer" or collectively the "Buyers").
WHEREAS, the Company has heretofore entered into the Securities Purchase
Agreement, dated November 14, 2005 (the "Original Securities Purchase
Agreement), with the Buyers;
WHEREAS, the Original Securities Purchase Agreement provides that the
provisions of the Original Securities Purchase Agreement may be waived or
amended by an instrument in writing signed by the party to be charged with
enforcement;
WHEREAS, the Company and the Buyer desire to amend the Original Securities
Purchase Agreement;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Amendment to Section 1 of the Original Securities Purchase
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Agreement. The Company and the Buyers hereby agree that the last sentence of
---------- Section 1(a) is deleted in its entirety and replaced by the
following:
1. PURCHASE AND SALE OF CONVERTIBLE DEBENTURES.
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(a) Purchase of Convertible Debentures. Subject to the satisfaction (or
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waiver) of the terms and conditions of this Agreement, each Buyer agrees,
severally and not jointly, to purchase at each Closing and the Company agrees to
sell and issue to each Buyer, severally and not jointly, at each Closing,
Convertible Debentures in amounts corresponding with the Subscription Amount set
forth opposite each Buyer's name on Schedule I hereto. Upon execution hereof by
a Buyer, the Buyer shall wire transfer the Subscription Amount set forth
opposite his name on Schedule I in same-day funds or a check payable to
"Xxxxxxxxx, Xxxxx & Xxxxxx, as Escrow Agent for NS8 Corporation/Cornell
Capital Partners, LP", which Subscription Amount shall be held in escrow
pursuant to the terms of the Escrow Agreement (as hereinafter defined) and
disbursed in accordance therewith.
(b) Closing Date. The First Closing of the purchase and sale of the
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Convertible Debentures shall take place at 10:00 a.m. Eastern Standard Time on
the fifth (5th) business day following the date hereof, subject to notification
of satisfaction of the conditions to the First Closing set forth herein and in
Sections 6 and 7 below (or such later date as is mutually agreed to by the
Company and the Buyer(s)) (the "First Closing Date"), the Second Closing of the
purchase and sale of the Convertible Debentures shall take place at 10:00 a.m.
Eastern Standard Time two (2) business days prior to the date the Registration
Statement is filed with the SEC, subject to notification of satisfaction of the
conditions to the Second Closing set forth herein and in Sections 6 and 7 below
(the "Second Closing Date") and the Third Closing of the purchase and sale of
the Convertible Debentures shall take place at 10:00 a.m. Eastern Standard Time
on the fifth (5th) business day following the date the Registration Statement is
declared effective by the SEC, subject to notification of satisfaction of the
conditions to the Third Closing set forth herein and in Sections 6 and 7 below
(the "Third Closing Date") (collectively referred to a the "Closing Dates").
Closings shall occur on the respective Closing Dates at the offices of
Yorkville Advisors, LLC, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxx Xxxxxx
00000 (or such other place as is mutually agreed to by the Company and the
Buyer(s)).
(c) Escrow Arrangements; Form of Payment. Upon execution hereof by Buyer(s)
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and pending the Closings, the aggregate proceeds of the sale of the
Convertible Debentures to Buyer(s) pursuant hereto shall be deposited in a
non-interest bearing escrow account with Xxxxxxxxx, Xxxxx & Xxxxxx, as escrow
agent (the "Escrow Agent"), pursuant to the terms of an escrow agreement
between the Company, the Buyer(s) and the Escrow Agent in the form
attached hereto as Exhibit B (the "Escrow Agreement"). Subject to the
satisfaction of the terms and conditions of this Agreement, on the Closing
Dates, (i) the Escrow Agent shall deliver to the Company in accordance
with the terms of the Escrow Agreement such aggregate proceeds for the
Convertible Debentures to be issued and sold to such Buyer(s) and (ii) the
Company shall deliver to each Buyer, Convertible Debentures which such
Buyer(s) is purchasing in amounts indicated opposite such Buyer's name on
Schedule I, duly executed on behalf of the Company.
Section 2. Governing Law. This Amendment shall be governed by and
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Interpreted in accordance with the laws of the State of New Jersey, without
regard to principles of conflicts of law.
Section 3. References to the Agreement. Except as amended by the
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Amendment, all other terms, conditions and covenants of the Original Securities
Purchase Agreement are hereby confirmed by the parties hereto and remain
unchanged and in full force and effect. From and after the date hereof, all
references to the "Agreement" contained in the Original Securities Purchase
Agreement, shall be deemed to be references to the Securities Purchase Agreement
as amended by this Amendment.
Section 4. Counterparts. This Amendment may be executed in separate
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counterparts, each of which, when executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
NS8 CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: CFO
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Portfolio Manager
