Exhibit 10.1
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this "Amendment") is
hereby entered into by and between XxxxxxxXxxxxxxx.xxx (the "Company") and the
Xxxx Capital Growth Fund II, L.P. (the "Purchaser") as of December 28, 2001.
R E C I T A L S
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WHEREAS, the Purchaser and the Company entered into that certain
Securities Purchase Agreement dated as of October 16, 2001 (the "Agreement").
WHEREAS, under the Agreement the Purchaser purchased a Subordinated
Secured Convertible Note (the "Note") convertible into shares of the Company's
Common Stock at $0.795 per share (the "Conversion Price").
WHEREAS, under Section 4.3 of the Note the Conversion Price is
adjustable upon certain issuances of Common Stock by the Company for a
consideration per share less than the then existing Conversion Price.
WHEREAS, as a result of concerns about the Company's compliance with
applicable regulatory requirements for stockholder approvals of certain stock
issuances, the Company and the Purchaser wish to amend the Agreement and the
Note to address those concerns.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the parties hereto agree as follows:
1. Notwithstanding anything to the contrary in the Agreement or the
Note, the Company hereby agrees that it shall not issue any Additional Stock (as
defined in the Note) which would result in the Note being convertible into
shares of Common Stock of the Company in an amount equal to or greater than
twenty percent (20%) of the Company's outstanding Common Stock before such
issuance, unless the Company first obtains either (i) stockholder approval of
such issuance, or (ii) the concurrence of Nasdaq that no such stockholder
approval is necessary under the Nasdaq Marketplace Rules.
2. All other terms and conditions of the Agreement and the Note shall
remain in full force and effect.
[Signature page follows]
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
XXXXXXXXXXXXXXX.XXX
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Chief Executive Officer
XXXX CAPITAL GROWTH FUND II, L.P.
By: XXXX CAPITAL GROWTH, L.P., its
General Partner
By: XXXX CAPITAL MANAGEMENT,
L.L.C., its general partner
By: /s/ J.R. Holland, Jr.
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X. Xxxxxxx, Xx., President
