EXHIBIT 10.4
AMENDMENT NUMBER ONE TO
RESTRICTED STOCK PURCHASE AGREEMENT
This Amendment Number One to the Restricted Stock Purchase Agreement (the
"Amendment"), is made and entered into effective as of May 12, 1999, by and
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between ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (the "Company") and ▇▇▇
▇▇▇▇▇▇▇▇, Jr. (the "Purchaser").
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RECITALS
WHEREAS, the Company and the Purchaser desire to amend the Restricted Stock
Purchase Agreement, dated as of May 12, 1999 (the "Agreement"), by and between
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the Company and the Purchaser, in order to correct certain typographical and
other errors contained therein.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions - The capitalized terms used in this Amendment and not
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otherwise defined herein shall have the meanings set forth in the Agreement.
ARTICLE II
AMENDMENT OF AGREEMENT
2.1 Payment of Purchase Price - Section 2 of the Agreement is hereby
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amended by deleting "a check or wire transfer" and inserting, in lieu thereof "a
check in the amount of $1,043.11 and a promissory note in the amount of
$207,579.09."
2.2 Purchase Price for Repurchase Option - Section 4(1) of the Agreement
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is hereby amended by deleting "($0.01)" and inserting, in lieu thereof
"($0.20)".
2.3 Release of Shares from Repurchase Option - Section 5(1) of the
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Agreement shall be amended to read as follows:
"(1) One third (1/3) of the Shares shall be released from the Company's
Repurchase Option at the Effective Date and 1/36th of the remaining
Shares shall be released at the end of each month thereafter until all
of the Shares have been released three years from the Effective Date,
provided in each case, that subject to Section 5(2), the Purchaser's
service as an employee or consultant to the Company have not been
terminated prior to the date of any such release."
2.4 Release of Shares from Repurchase Option - Section 5(2) of the
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Agreement shall be amended to read as follows:
"(2) In the event Purchaser's employment terminates (i) involuntarily
by Pur chaser or (ii) as a result of an "Involuntary Termination" (as
defined in that certain employment agreement between Purchaser and the
Company, dated May 12, 1999, (the "Employment Agreement") within six
months following a Change in Control (as defined in the Employment
Agreement), fifty percent (50%) of the previously unvested Shares
shall be immediately released from the Company's Repurchase Option."
2.5 Release of Shares - Section 5(2)(b) of the Agreement is hereby amended
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by deleting "1,410,000" and inserting, in lieu thereof "1,043,111".
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1 Effect of Amendment - Except as expressly modified by this Amendment,
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the Agreement shall continue to be and remain in full force and effect in
accordance with its terms. Any future reference to the Agreement shall be deemed
to be a reference to the Agreement as modified by this Amendment.
3.2 Multiple Counterparts. This Amendment may be executed in one or more
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counterparts, each of which shall be deemed an original, with the same effect as
if signatures thereto and hereto were upon the same instrument.
* * * * *
IN WITNESS WHEREOF, the Company and the Purchaser have duly executed this
Amendment as of the day and year first set forth above.
▇▇▇▇▇▇▇▇.▇▇▇, Inc., PURCHASER: ▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
a Delaware corporation
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
BY: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ --------------------------------------
------------------------- (Signature)
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer ---------------------------------------
(Address)
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