AMENDMENT NO.1 TO SECURITIES PURCHSE AGREEMENT
This Amendment No. 1 to Securities Purchase Agreement (this
"AMENDMENT"), dated as of November __, 2006, is entered into by and between
REMOTE DYNAMICS, INC., a Delaware corporation (the "COMPANY"), and SDS CAPITAL
GROUP SPC, LTD. for itself and on behalf of its Class A Segregated portfolio,
Class B Segregated portfolio, Class C Segregated portfolio and all future
Segregated portfolios created by it from time to time ("PURCHASER"), for the
purpose modifying certain terms of the Securities Purchase Agreement dated as of
May 31, 2005, by and between the Company and Purchaser (as amended, modified or
supplemented from time to time, the "SECURITIES PURCHASE AGREEMENT") and the
other Transaction Documents (as defined in the Securities Purchase Agreement)
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Securities Purchase Agreement.
WHEREAS, concurrently herewith, Bounce Mobile Systems, Inc. ("BMSI")
and the Company are entering into a Share Exchange Agreement (the "SHARE
EXCHANGE AGREEMENT" pursuant to which the Company is acquiring from BMSI 100% of
the outstanding capital stock of BounceGPS, Inc. in exchange for 5,000
authorized, but unissued, shares of the Company's Series C Preferred Stock
having such rights, preferences and privileges as set forth in the Series C
Preferred Stock Certificate of Designations included as Exhibit A to the Share
Exchange Agreement (the "SERIES C PREFERRED") and the other securities of the
Company referenced therein; and
WHEREAS, concurrently herewith, the Company is entering into a Note and
Warrant Purchase Agreement (the "NOTE PURCHASE AGREEMENT") pursuant to which
BMSI and the other purchasers named therein are purchasing from the Company the
Series B Notes, the OID Notes and the Warrants, each as defined therein ; and
WHEREAS, Purchaser desires to induce (a) BMSI and the Company to enter
into the Share Exchange Agreement and to consummate the transactions
contemplated thereby and (b) the Company and BMSI to enter into the Note
Purchase Agreement and to consummate the transactions contemplated thereby,
NOW, THEREFORE, in consideration of the above, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purchaser hereby waives any breach or default by the Company,
whether occurring on or prior to the date hereof or at any time hereafter, with
respect to the following provisions of the Securities Purchase Agreement: (a)
the representations or warranties of the Company set forth in Section 3, (b) the
first sentence of Section 4(b), (c) the second sentence of Section 4(c), (d)
Section 4(g), (e) Section 4(q), (f) Section 4(t), (g) Section 4(u), and (h)
Section 4(v).
2. The Securities Purchase Agreement is hereby amended by deleting
Sections 4(p), 4(r) and 4(s) thereof in their entirety.
3. Purchaser hereby consents under Section 4(k) of the Securities
Purchase Agreement to the repayment, repurchase or redemption of the Notes (as
defined in the Note Purchase Agreement and in the Share Exchange Agreement).
4. The Registration Rights Agreement is hereby amended as follows:
(a) All references in Section 2(a) and (b) thereof to "the
date hereof" or "the issuance of the C Warrants" shall be deemed to be
references to the date of this Amendment;
(b) Clause (iii) of the third sentence of Section 2(b) is
deleted in its entirety;
(c) The words "or the Common Stock is not listed or included
for quotation on the SmallCap Market, the National Market, NYSE or
AMEX" are deleted from clause (F) of the fourth sentence of Section
2(b);
(d) The last two sentences of Section 3(b) are deleted in
their entirety; and
(e) The words "and the fees and disbursements of one counsel
selected by the Investors holding a majority of the Registrable
Securities (with a maximum reimbursable fee of $7,500 unless otherwise
approved by the Company, which approval shall not be withheld
unreasonably)" are deleted from Section 5.
5. The May Warrant is hereby amended by deleting Section 3(f) thereof
in its entirety.
6. Purchaser hereby consents to the amendments to the rights,
preferences and privileges of the Series B Preferred Stock as set forth in the
form of Amended and Restated Certificate of Designation, Preferences and Rights
of the Series B Preferred Stock attached as Exhibit H-1 to the Share Exchange
Agreement.
7. Purchaser hereby waives any and all adjustments to the conversion or
exercise price of, and number of shares issuable upon conversion or exercise of,
the Series B Preferred Stock and the Warrants (and any other securities or
rights held by Purchaser which are convertible into or exercisable or
exchangeable for, any shares of capital stock of the Company) in respect of the
Series C Preferred, including in respect of the issuance of the Series C
Preferred, the conversion thereof, and changes in the Conversion Rate thereof.
8. Purchaser hereby waives any breach or default by the Company,
whether occurring on or prior to the date hereof or at any time within 60 days
hereafter, with respect to any and all provisions of the Transactions Documents
(other than those specified in paragraph 1 above).
9. From and after the date hereof, Purchaser and the Company agree to
execute and deliver such other amendments, waivers and consents to and under the
Transactions Documents, as may be necessary, as reasonably determined by BMSI's
independent public accountant, to
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enable BMSI to consolidate the Company's financial results in BMSI's
consolidated financial statements.
10. Purchaser hereby represents and warrants to the Company that (a)
Purchaser owns beneficially all of the outstanding Securities, (b) the
execution, delivery and performance by Purchaser of this Amendment are within
Purchaser's organizational powers and have been duly authorized by all necessary
corporate action of Purchaser, and (c) this Amendment has been duly and validly
executed and delivered by Purchaser and constitutes a valid and binding
agreement of Purchaser, enforceable against Purchaser in accordance with its
terms.
11. This Amendment shall be effective as of the date hereof following
the execution and delivery of same by each of the Company and Purchaser.
12. This Amendment shall be binding upon the parties hereto and their
respective successors and permitted assigns and shall inure to the benefit of
and be enforceable by each of the parties hereto and its successors and
permitted assigns. The parties acknowledge that BMSI is an intended third party
beneficiary of this Amendment. This Amendment may not be modified, changed,
supplemented or terminated, nor may any obligations hereunder be waived, except
by written instrument signed by the parties to be charged or by its agent duly
authorized in writing or as otherwise expressly permitted herein. Any such
modification, change, supplement, termination or waiver, and any other
modification, change, supplement, termination or waiver to the Transaction
Documents that would be in any way inconsistent with this Amendment, shall
require the written consent of BMSI.
13. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF DELAWARE. This Amendment may be executed
in any number of counterparts, each of which shall be an original, but all of
which shall constitute one instrument.
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* * * *
IN WITNESS WHEREOF, each of the Company and Purchaser has caused this
Amendment No. 1 to the Securities Purchase Agreement to be signed in its name
effective as of this ___ day of November, 2006.
REMOTE DYNAMICS, INC.
By:________________________________
Name:
Title:
SDS CAPITAL GROUP SPC, LTD. FOR ITSELF AND
ON BEHALF OF ITS CLASS A SEGREGATED
PORTFOLIO, CLASS B SEGREGATED PORTFOLIO,
CLASS C SEGREGATED PORTFOLIO AND ALL FUTURE
SEGREGATED PORTFOLIOS CREATED BY IT FROM
TIME TO TIME
By:________________________________
Name:
Title:
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