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Amendment No. 2 to Debenture and Warrant Purchase
Agreement
This
Amendment No. 2 to Debenture and Warrant Purchase
Agreement (the “
Agreement ”)
is effective as of April 15, 2008, by and between Airbee
Wireless, Inc., a Delaware corporation (the “
Company ”)
and each of the persons or entities listed on the signature page
hereto (each, an “
Investor ”
and collectively, the “
Investors ”).
Capitalized terms used herein that are not defined shall have the
meaning ascribed to them in the Purchase Agreement.
RECITALS
1. The
Company and the Investors entered in that certain Debenture
and Warrant Purchase Agreement dated as of January 30,
2008, as amended by Amendment No. 1 to Debenture and
Warrant Purchase Agreement effective as of February 8,
2008 (the “
Purchase Agreement ”).
2. The
Purchase Agreement provides, amongst other things, that the
Investors shall exercise their Call Option no later than ten
(10) calendar days following the Second
Closing.
3. The
Company has issued to BARTFAM, a California limited
partnership, and one of the Investors named herein, that
certain Convertible Debenture dated March 28, 2008 in the
principal amount of $50,000.00 (the “
March 28th Debenture ”).
4. The
Company and the Investors desire to amend the Purchase
Agreement, to: (i) provide for a credit to the purchase
price of the Second Tranche Debentures and the Second Tranche
Warrants in the amount of the March 28th Debenture,
(ii) update the wire instructions set forth on
Exhibit C ,
(iii) modify the time period within which such Call Option may
be exercised, and (iv) provide for the reimbursement by the Company
of certain legal fees paid by the Investors on behalf of the
Company in connection with the negotiation and settlement of claims
of the Company’s current creditors and current
employees.
NOW
THEREFORE, the parties hereby agree as follows:
AGREEMENT
1. Section 1.4(b)
of the Purchase Agreement is hereby amended and rested in its
entirety to read as follows:
“(b)
Second Closing .
The purchase and sale of the Second Tranche Debentures and issuance
of the Second Tranche Warrants shall take place via exchange of
electronic or facsimile signature pages thereto (with originals to
be mailed as soon as practicable thereafter) on a date to be agreed
between the parties, upon the satisfactory settlement or agreement
among the Company and its principal corporate creditors; provided,
however, that either Thomas F. Bartman or John W. Bartman may waive
the occurrence thereof on behalf of each of the Investors (the
“
Second Closing ”).
The Company shall keep the Investors reasonably informed regarding
all such settlement discussions and agreements with any of its
principal corporate creditors. At the Second Closing, the Company
shall deliver to the Investors the Second Tranche Debentures and
the Second Tranche Warrants against payment of the purchase price
therefor (such purchase price to be reduced by the amount of the
March 28th Debenture following which the March 28th
Debenture shall be cancelled) by check payable to the Company or by
wire transfer to the bank and account designated by the Company
on
Exhibit C attached
hereto.”
2. Section 1.4(c)
of the Purchase Agreement is hereby amended and restated in
its entirety to read as follows:
“(c)
Third Closing .
The Investors may, at their sole option, lend to the Company up to
an additional Four Hundred and One Thousand One Hundred and Fifty
Seven Dollars ($401,157.00) on the same terms and conditions as the
Warrants and Debentures issued at the Initial Closing and Second
Closing (the “
Call Option ”),
provided, that the Investors shall notify the Company in writing of
their intent to exercise their Call Option (the “
Call Option Exercise Notice ”)
no later than ten (10) calendar days following (i) the
tenth (10th) calendar day following delivery to the Investors of
documentation that establishes, to the reasonable satisfaction of
the Investors, entry into one or more license agreements that will
generate in the aggregate Three Hundred Thousand Dollars
($300,000.00) in revenues, or (ii) the sixth month anniversary
of the date of this Agreement, whichever occurs earlier, and
stating the aggregate amount of funds to be lent to the Company.
The purchase and sale of the Third Tranche Debentures and issuance
of the Third Tranche Warrants shall take place via exchange of
electronic or facsimile signature pages thereto (with originals to
be mailed as soon as practicable thereafter) no later than five
(5) business days following the Company’s receipt of the
Call Option Exercise Notice (the “
Third Closing ”).
At the Third Closing, the Company shall deliver to the Investors
the Third Tranche Debentures and the Third Tranche Warrants against
payment of the purchase price therefor by check payable to the
Company or by wire transfer to the bank and account designated by
the Company on
Exhibit C attached
hereto.”
3. Section 7.7
of the Purchase Agreement is hereby amended and restated in
its entirety to read as follows:
“7.7
Fees and Expenses .
The Company and Investors shall bear their own expenses in
connection with the transactions contemplated by this Agreement;
provided that Company shall (i) pay Investors’ legal expenses
up to a maximum of $15,000.00 in connection with the transactions
contemplated by this Agreement; and (ii) reimburse the
Investors for all legal fees and expenses incurred in connection
with the negotiation and settlement of certain claims between the
Company and its current creditors and certain current employees
within ten (10) calendar days of payment, which may be made
from time to time, by the Investors to Manatt, Phelps &
Phillips, LLP of such fees and expenses with the Company satisfying
its reimbursement obligation to the Investors by issuing to the
Investors Debentures in the aggregate principal amount of such fees
and expenses as well as the requisite corresponding number of
Warrants all on the same terms and conditions as those issued at
the Initial Closing. For example, in the event that the legal fees
and expenses amounted to $30,000.00, the Company would be required
to issue to the Investors Debentures with an aggregate face value
of $30,000.00 accompanied by Warrants evidencing the right to
purchase in the aggregate 800,010 shares of Common Stock,
and
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