FIRST AMENDMENT TO SECURED BRIDGE NOTE
AND WARRANT PURCHASE AGREEMENT AND TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURED BRIDGE NOTE AND WARRANT PURCHASE AGREEMENT
AND TO SECURITY AGREEMENT (this "Amendment") is dated as of June 1, 2000 and
entered into by and among ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation (the
"Company"), Guidance Solutions, Inc. ("New Investor") and the undersigned
current investors ("Current Investors").
HOLDERS OF A MAJORITY OF THE BRIDGE NOTES, IN ACCORDANCE WITH
SECTION 7.10 OF THE BRIDGE NOTE PURCHASE AGREEMENT, COMPANY AND
NEW INVESTOR AGREE AS FOLLOWS:
1. Defined Terms: Any capitalized term used in this Amendment without
definition shall have the meaning ascribed to that term in that certain
Secured Bridge Note and Warrant Purchase Agreement, dated as of April
18, 2000 by and among the Company, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Palomar
Ventures I, L.P. (the "Bridge Note Purchase Agreement").
2. Amendments:
2.1 The definition of "Investors" used in the Bridge Note Purchase
Agreement shall be amended to mean, collectively, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Palomar Ventures I, L.P. and Guidance Solutions, Inc.
2.2 The definition of "Lenders" used in the Security Agreement shall be
amended to mean, collectively, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Palomar
Ventures I, L.P. and Guidance
Solutions, Inc.
3. Conditions to Effectiveness: Section 2 of this Amendment shall become
effective only upon satisfaction of all of the following conditions
precedent (the date of such effectiveness, the "First Amendment
Effectiveness Date"):
3.1 The Company shall have performed and complied with all agreements
obligations and conditions contained in this Amendment that are
required to be performed or complied with by it on or before the
First Amendment Effectiveness Date.
3.2 The Company shall have executed and delivered to the New
Investor: Bridge Warrants substantially in the form
attached hereto as Exhibit B-1, Contingent Warrants
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substantially in the form attached hereto as
Exhibit B-2 and the Security Agreement substantially in
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the form attached hereto as Exhibit C. The Current
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Investors shall have executed and the Company shall
have filed amendments to the UCC-1 financing statements
filed with the Secretary of State of California, the
Secretary of the Commonwealth of Pennsylvania and the
Prothonotary of Cumberland County Pennsylvania adding
the New Investor as a secured party.
3.3 The New Investor, the Company and holders of more than fifty percent
(50%) of the aggregate outstanding principal amount of the Bridge
Notes shall have executed and delivered this Amendment.
3.4 All representations and warranties of the New Investor made
under the Bridge Note Purchase Agreement as a result of
amendment by this Amendment shall be true on and as of
the First Amendment Effectiveness Date with the same
effect as though such representations and warranties
had been made on and as of such date; provided that the
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Company acknowledges that the New Investor makes, and
the New Investor makes, the representations in Section
3.2 of Bridge Note Purchase Agreement subject to the
condition that the New Investor shall be permitted to
assign its rights and responsibilities under the Bridge
Note Purchase Agreement, the Bridge Notes, the Bridge
Warrant and the Contingent Warrant held by it, to its
affiliate Marina Corporate LLC.
3.5 All authorizations, approvals, or permits, if any, of any
governmental authority or regulatory body of the United
States or of any state or the approval or authorization
of any other entity that are required in connection
with the lawful issuance and sale of the Securities to
New Investor pursuant to the Bridge Note Purchase
Agreement as amended by this Amendment shall have been
duly obtained and effective as of the First Amendment
Effectiveness Date.
3.6 New Investor shall have paid $95,055 plus $1,135.38 (representing
interest on the Bridge Notes from April 18, 2000 through the First
Amendment Effectiveness Date at the rate of 10% per annum) by wire
transfer of immediately available funds on or prior to the First
Amendment Effectiveness Date.
4. Company Acknowledgement and Consent: Company is a party to
the Security Agreement pursuant to which the Company has
granted a security interest in certain collateral as
described in the Security Agreement in favor of the
Current Investors. Company hereby consents to this
Amendment and confirms that such collateral will continue
to secure its obligations under the Bridge Notes to the
Current Investors and will also secure its obligations
under the Bridge Notes to the New Investor.
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5. Miscellaneous
5.1. On and after the First Amendment Effectiveness Date, each
reference in the Bridge Note Purchase Agreement or
the Security Agreement, respectively, to "this
Agreement," "hereunder," "herein," or words of
like import referring to the Bridge Note Purchase
Agreement or the Security Agreement, respectively,
and each reference in either document to the other
shall mean and be a reference to such agreement as
amended by this Amendment.
5.2. Except as specifically amended by this Amendment, the Bridge
Note Purchase Agreement and the Security Agreement shall remain
in full force and effect and are
hereby ratified and confirmed.
5.3. This Amendment shall be governed by and construed under the laws
of the State of New York (excluding the choice of law provisions
thereof).
5.4. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
COMPANY ▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
CURRENT INVESTORS /s/▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
PALOMAR VENTURES I, L.P.
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By: /s/▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
Title: General Partner
NEW INVESTOR
GUIDANCE SOLUTIONS, INC.
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 310.754.4010
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