-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, V2PmchYdoXRM0eswegk3N34i29WavxU2RUnCdy+WnBM6D7aXB6OY5G4PQGX8yG0X RTl/P2+ysH3y3akTUCpLoA== 0000950123-04-008446.txt : 20040715 0000950123-04-008446.hdr.sgml : 20040715 20040715172644 ACCESSION NUMBER: 0000950123-04-008446 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040715 GROUP MEMBERS: DOLPHIN COMMUNICATIONS FUND II LP GROUP MEMBERS: DOLPHIN COMMUNICATIONS II LP GROUP MEMBERS: DOLPHIN COMMUNICATIONS LLC GROUP MEMBERS: DOLPHIN COMMUNICATIONS PARALLEL FUND II (NETHERLANDS) LP FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BREKKA RICHARD CENTRAL INDEX KEY: 0001216110 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: DOLPHIN EQUITY PARTNERS LP STREET 2: 750 LEXINGTON AVE. CITY: NEW YORK STATE: NY ZIP: 10022 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VITALSTREAM HOLDINGS INC CENTRAL INDEX KEY: 0000789851 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 870429944 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-39870 FILM NUMBER: 04916518 BUSINESS ADDRESS: STREET 1: ONE JENNER STREET 2: SUITE 100 CITY: IRIVINE STATE: CA ZIP: 92618 BUSINESS PHONE: (949) 743-2000 MAIL ADDRESS: STREET 1: ONE JENNER STREET 2: SUITE 100 CITY: IRVINE STATE: CA ZIP: 92618 FORMER COMPANY: FORMER CONFORMED NAME: SENSAR CORP /NV/ DATE OF NAME CHANGE: 19990501 FORMER COMPANY: FORMER CONFORMED NAME: LARSON DAVIS INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: CRITERION VENTURES INC DATE OF NAME CHANGE: 19871126 SC 13D/A 1 y99050a3sc13dza.txt AMENDMENT NO.3 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION OMB APPROVAL WASHINGTON, D.C. 20549 OMB Number: 3235-0145 SCHEDULE 13D Expires: December 31, 2005 UNDER THE SECURITIES EXCHANGE Estimated average ACT OF 1934 burden hours per (AMENDMENT NO. 3) response ....11 VITALSTREAM HOLDINGS, INC. - -------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK, $0.001 PAR VALUE PER SHARE - -------------------------------------------------------------------------------- (Title of Class of Securities) 817253107 - -------------------------------------------------------------------------------- (CUSIP Number) DOLPHIN EQUITY PARTNERS, L.P. 750 LEXINGTON AVENUE, 16TH FLOOR NEW YORK, NEW YORK 10022 ATTENTION: MR. RICHARD J. BREKKA TEL: (212) 446-1600 WITH A COPY TO: KIRKLAND & ELLIS LLP CITIGROUP CENTER 153 EAST 53RD STREET NEW YORK, NEW YORK 10022 ATTENTION: MR. JOHN KUEHN, ESQ. TEL: (212) 446-4821 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 13, 2004 - -------------------------------------------------------------------------------- (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 817253107 13D Page 2 of 10 [Repeat following page as necessary] 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Dolphin Communications Fund II, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 12,362,369 shares of common stock (including 2,102,476 shares of common stock issuable upon exercise of BENEFICIALLY warrants) -------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH -- -------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON 12,362,369 shares of common stock (including 2,102,476 shares of common stock issuable upon exercise of WITH warrants) -------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER -- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12,362,369 shares of common stock - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.83% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN * SEE INSTRUCTIONS. CUSIP No. 817253107 13D Page 3 of 10 [Repeat following page as necessary] 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Dolphin Communications Parallel Fund II (Netherlands), L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[X] (b)[ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 1,384,892 shares of common stock (including 235,696 shares of common stock issuable upon exercise of BENEFICIALLY warrants) -------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH -- -------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON 1,384,892 shares of common stock (including 235,696 shares of common stock issuable upon exercise of WITH warrants) -------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER -- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,384,892 shares of common stock - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.90 % - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN * SEE INSTRUCTIONS. CUSIP No. 817253107 13D Page 4 of 10 [Repeat following page as necessary] 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Dolphin Communications II, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 17,596,021 shares of common stock (including 2,338,172 shares of common stock issuable upon exercise of BENEFICIALLY warrants) -------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH -- -------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON 17,596,021 shares of common stock (including 2,338,172 shares of common stock issuable upon exercise of WITH warrants) -------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER -- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 17,596,021 shares of common stock - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 23.95% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN * SEE INSTRUCTIONS. CUSIP No. 817253107 13D Page 5 of 10 [Repeat following page as necessary] 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Dolphin Communications, L.L.C. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 17,596,021 shares of common stock (including 2,338,172 shares of common stock issuable upon exercise of BENEFICIALLY warrants) -------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH -- -------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON 17,596,021 shares of common stock (including 2,338,172 shares of common stock issuable upon exercise of WITH warrants) -------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER -- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 17,596,021 shares of common stock - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 23.95% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN * SEE INSTRUCTIONS. CUSIP No. 817253107 13D Page 6 of 10 [Repeat following page as necessary] 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Richard Brekka - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 17,596,021 shares of common stock (including 2,338,172 shares of common stock issuable upon BENEFICIALLY exercise of warrants) -------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH -- -------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON 17,596,021 shares of common stock (including 2,338,172 shares of common stock issuable upon WITH exercise of warrants) -------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER -- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 17,596,021 shares of common stock - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 23.95% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN * SEE INSTRUCTIONS. This Amendment Number 3 to Schedule 13D is filed by Dolphin Communications Fund II, L.P., a Delaware limited partnership ("Dolphin Fund II"), Dolphin Communications Parallel Fund II (Netherlands), L.P. ("Dolphin Parallel II"), Dolphin Communications II, L.P., a Delaware limited partnership ("Dolphin Communications II"), Dolphin Communications, L.L.C., a Delaware limited liability company ("Dolphin LLC") and Richard Brekka, an individual ("Brekka") and amends the Schedule 13D dated October 10, 2003, as amended (the "Initial Schedule 13D"), filed by Brekka, Dolphin Fund II, Dolphin Parallel II, Dolphin Communications II, Dolphin LLC, Epoch Hosting, Inc., a Delaware corporation, Epoch Networks, Inc., a California corporation, Epoch Holdings, Inc., a Delaware corporation, Dolphin Communications Fund, L.P., a Delaware limited partnership, Dolphin Communications Parallel Fund, L.P., a Delaware limited partnership, Dolphin Communications, L.P., a Delaware limited partnership, Dolphin Communications I, L.L.C., a Delaware limited liability company (together, the "Reporting Persons"). Capitalized terms used herein but not defined shall have the meaning ascribed thereto in the Initial Schedule 13D. This Amendment No. 3 to Schedule 13D hereby amends and supplements the Initial Schedule 13D. All items not described herein remain as previously reported in the Initial Schedule 13D. ITEM 4. PURPOSE OF THE TRANSACTION. This Amendment Number 3 to Schedule 13D is being filed solely for the purpose of correcting the amount of securities and warrants acquired and beneficially owned by the Reporting Persons, as disclosed in the Amendment Number 2 to Schedule 13D, dated June 22, 2004 (the "Second Amendment"). Pursuant to an amendment (the "Purchase Agreement Amendment") to the Purchase Agreement (as defined in the Second Amendment), and an amendment (the "Warrant Amendment") to the Warrant (as defined in the Second Amendment) Dolphin Fund II and Dolphin Parallel II purchased an aggregate of 3,456,713 shares of Common Stock of the Issuer and warrants to purchase 1,037,014 shares of Common Stock. The Purchase Agreement Amendment and the Warrant Amendment are attached hereto as Exhibits A and B, respectvely, and any description herein of the Purchase Agreement Amendment or the Warrant is qualified in its entirety by reference to Exhibits A and B. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. See the cover pages hereto. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. See Item 4 above. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit A -- Form of Purchase Agreement Amendment Exhibit B -- Form of Warrant Amendment SIGNATURES After reasonable inquiry and to the best of each of the undersigned's knowledge and belief, each of the undersigned certify that the information set forth in this statement is true, complete and correct. Date: July 15, 2004 DOLPHIN COMMUNICATIONS FUND II, L.P. By: Dolphin Communications II, L.P., Its General Partner By: Dolphin Communications, L.L.C., Its General Partner By: /s/ Richard J. Brekka _________________________________ Name: Richard J. Brekka Title: President DOLPHIN COMMUNICATIONS PARALLEL FUND II (NETHERLANDS), L.P. By: Dolphin Communications II, L.P., Its General Partner By: Dolphin Communications, L.L.C., Its General Partner By: /s/ Richard J. Brekka __________________________________ Name: Richard J. Brekka Title: President DOLPHIN COMMUNICATIONS II, L.P. By: Dolphin Communications, L.L.C., Its General Partner By: /s/ Richard J. Brekka __________________________________ Name: Richard J. Brekka Title: President DOLPHIN COMMUNICATIONS, L.L.C. By: /s/ Richard J. Brekka __________________________________ Name: Richard J. Brekka Title: Managing Member RICHARD BREKKA /s/ Richard J. Brekka __________________________________ EX-99.A 2 y99050a3exv99wa.txt FORM OF PURCHASE AGREEMENT AMENDMENT EXHIBIT A AMENDMENT TO PURCHASE AGREEMENT THIS AMENDMENT TO PURCHASE AGREEMENT (this "AMENDMENT") is entered into as of the 28th day of June, 2004, by and among VitalStream Holdings, Inc., a Nevada corporation (the "COMPANY"), and the Investors (together with the Company, the "PARTIES"). Capitalized terms not expressly defined herein shall have the meaning set forth in the Agreement (as such term is defined below). RECITALS WHEREAS, the Parties entered into that certain Purchase Agreement dated as of June 14, 2004 (the "AGREEMENT"); and WHEREAS, the representations made by the Company in the Agreement with respect to its capitalization understated the number of outstanding options by 467,957 shares (the "UNDERSTATEMENT"); and WHEREAS, the Parties desire to amend the Agreement as set forth herein; AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Definition of Purchase Price. The second sentence of the definition of "Purchase Price" in Section 1 of the Agreement, which reads as follows: "The Purchase Price shall be calculated based upon a purchase price of $.61332 per unit of one Share and .3 Warrant." is hereby deleted and replaced with the following: "The Purchase Price shall be calculated based upon a purchase price of $.6075135 per unit of one Share and .3 Warrant.". 2. Schedule 4.3. The third paragraph and associated table and the fourth paragraph of Section 4.3 of the Disclosure Schedules are hereby deleted and replaced with the information set forth on Schedule 4.3A to this Amendment. 3. Conditions to Closing. (a) The phrase "the number and type of outstanding shares of capital stock of the Company, and rights to purchase or acquire capital stock of the Company, shall be as follows: there will be issued and outstanding (a) 41,922,174 shares of Common Stock, (b) no shares of Series A Preferred Stock or Series B Preferred Stock, (c) 3,940,664 options to purchase Common Stock, (d) 3,050,827 warrants to purchase Common Stock, and (e) 1,891,867 shares of Common Stock reserved for the future grants of options or other rights under the Company's stock incentive plan" in the last sentence of Section 6.1(j) of the Agreement is hereby deleted and replaced with the following: "the number and type of outstanding shares of capital stock of the Company, and rights to purchase or acquire capital stock of the Company, shall be as follows: there will be issued and outstanding (a) 41,922,174 shares of Common Stock, (b) no shares of Series A Preferred Stock or Series B Preferred Stock, (c) 4,408,621 options to purchase Common Stock, (d) 3,050,827 warrants to purchase Common Stock, and (e) 1,423,910 shares of Common Stock reserved for the future grants of options or other rights under the Company's stock incentive plan". (b) Within one Business Day of the later of the Effective Date (as defined in Section 10) and the date the respective Investor signs a counterpart signature page to this Amendment, the Company shall cause its Chief Executive Officer to execute and deliver to each of the Investors party hereto a copy of an Officer's Certificate in the form attached hereto as Exhibit A, which Officer's Certificate shall supersede and replace the Officer's Certificate delivered to the Investors at Closing pursuant to Section 6.1(g) of the Agreement. 4. Signature Pages. The number of shares of Common Stock and Warrants indicated for each Investor on the signature pages to this Amendment shall supersede the number of shares of Common Stock and Warrants indicated for each Investor on the signature pages to the Agreement. 5. Replacement Certificates. Within five Business Days of the later of the Effective Date and the date the respective Investor signs a counterpart signature page to this Amendment, the Company shall issue to each Investor party to this Amendment a certificate for the number of shares of Common Stock needed to increase the number of shares of Common Stock issued to the Investor under the Agreement to that number of shares of Common Stock indicated on the line "Number of Shares" on such Investor's signature page to this Amendment. 6. Replacement Warrants. Within five Business Days of the later of the Effective Date and the date the respective Investor signs a counterpart signature page to this Amendment, the Company shall execute and deliver to each Investor party to this Amendment an Amendment to Warrant to Purchase Shares of Common Stock in the form attached hereto as Exhibit B (the "WARRANT AMENDMENT"); provided that the number set forth in the blank of Section 2 of the Warrant Amendment shall be the number of shares of Common Stock indicated on the line "Number of Warrants" on such Investor's signature page to this Amendment. 7. Continuing Enforceability. In all respects, other than as specifically set forth in this Amendment, the Agreement shall remain unaffected by this Amendment, and the Agreement shall continue in full force and effect, subject to the terms and conditions thereof. In the event of any conflict between the terms of this Amendment and the terms of the Agreement, the terms of this Amendment shall supersede conflicting terms of the Agreement. 8. Further Assurances. Each of the Parties shall execute any and all further documents, agreements and instruments, and take all further actions which may be required under applicable law, or which another Party may, in its reasonable discretion, request in order to effectuate the transactions contemplated by this Amendment. 9. Waiver. In consideration of the Company's entering into this Amendment, each of the Investors hereby waives any right or cause of action it might have against the Company or its Affiliates arising from or in connection with the Understatement. Such waiver shall not extend to any potential inaccuracies in the representations and warranties of the Company in the Agreement or the exhibits thereto other than as restated or corrected by this Amendment and the Exhibits hereto. 10. Sufficient Signatories. In accordance with Section 9.6 of the Agreement, this Amendment shall be effective as of the date (the "EFFECTIVE DATE") counterpart signatures to this Amendment have been executed and delivered by (a) the Company and (b) the Required Investors, regardless of whether this Amendment is executed by all of the Parties listed below. To the extent permitted by governing law, all parties to the Agreement shall be bound by the terms of this Amendment upon its effectiveness, whether or not they have executed counterpart signature pages hereto. 11. Facsimile Signature and Counterparts. This Amendment may be executed by facsimile signature and in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same instrument. [Signature Pages Follows] IN WITNESS WHEREOF, the Parties hereto have executed or caused their duly authorized officers to execute this Amendment to Purchase Agreement as of the date first set forth above. The Company: VITALSTREAM HOLDINGS, INC. By:_______________________ Name: Paul Summers Title: President [SIGNATURE PAGE TO AMENDMENT TO PURCHASE AGREEMENT] EX-99.B 3 y99050a3exv99wb.txt FORM OF WARRANT AMENDMENT EXHIBIT B AMENDMENT TO WARRANT TO PURCHASE SHARES OF COMMON STOCK THIS AMENDMENT TO WARRANT TO PURCHASE SHARES OF COMMON STOCK (this "AMENDMENT") is entered into as of the 28th day of June, 2004 (the "EFFECTIVE DATE"), by and between VitalStream Holdings, Inc., a Nevada corporation (the "COMPANY") and ________________ (the "WARRANT HOLDER"). Each of the Company and the Warrant Holder are individually referred to herein as a "PARTY" and collectively as the "PARTIES." Capitalized terms not expressly defined herein shall have the meaning set forth in the Warrant (as such term is defined below). RECITALS WHEREAS the Company issued to the Warrant Holder a warrant to purchase shares of common stock of the Company pursuant to the terms of that certain Warrant to Purchase ____________ Shares of Common Stock dated as of June 14, 2004, Certificate No. ___ (the "WARRANT"); and WHEREAS, the Parties desire to amend the Warrant as set forth herein. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Warrant Price. The "Warrant Price" as defined in the introductory paragraph of the Warrant is hereby changed to $0.6075135 per share. 2. Warrant Shares. The "Warrant Shares" as defined in the introductory paragraph of the Warrant is hereby changed to __________ shares. 3. Enforceability of this Amendment. This Amendment shall be a valid and binding obligation of the Company upon execution hereof by the Company, whether or not this Warrant Amendment is executed by the Warrantholder. 4. Continuing Enforceability. Other than as specifically set forth in this Amendment, the Warrant shall remain unaffected by this Amendment, and the Warrant shall continue in full force and effect, subject to the terms and conditions thereof. 5. Further Assurances. Each of the Parties shall execute any and all further documents, agreements and instruments, and take all further actions which may be required or desirable under applicable law, or which the other Party may, in its reasonable discretion, request in order to effectuate the transactions contemplated by this Amendment. 6. Facsimile Signature and Counterparts. This Amendment may be executed by facsimile signature and in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this Amendment to Warrant to Purchase Shares of Common Stock as of the Effective Date. COMPANY: WARRANT HOLDER: VITALSTREAM HOLDINGS, INC. __________________________________ PRINT NAME By:_______________________________ By:_______________________________ Name:_____________________________ Name:_____________________________ Title:____________________________ Title:____________________________ -----END PRIVACY-ENHANCED MESSAGE-----