EXHIBIT 10.1
------------
FIRST AMENDMENT TO THE
SUBSCRIPTION AGREEMENT
----------------------
This First Amendment to the Subscription Agreement (the "Subscription
Agreement") is made as of the 15th day of September, 2003 by and between Avenue
Group, Inc., a corporation organized under the laws of the State of Delaware
(the "Company") and the Xxxxx Xxxxxxxxxxx Trust (the "Purchaser").
RECITALS
--------
A. The Company and Purchaser entered into a Subscription Agreement
dated as of April 15, 2003, wherein Purchaser subscribed to purchase two
convertible promissory notes from the Company, in the original principal amount
of Three Hundred Thousand Dollars ($300,000.00) (the "Initial Note") and One
Million Dollars ($1,000,000.00) (the "Second Note"), respectively. Pursuant to
the Subscription Agreement, the Initial Note was payable as of the date of
execution of the Subscription Agreement (the "Initial Payment") and the Second
Note was payable within thirty (30) days of the date of execution of the
Subscription Agreement (the "Final Payment").
B. Simultaneously with the execution of the Subscription Agreement,
Purchaser paid and delivered to the Company the Initial Payment and received the
Initial Note.
C. Subsequent to the execution of the Subscription Agreement, certain
disputes arose between the parties thereunder.
D. Purchaser paid and delivered Five Hundred Thousand Dollars
($500,000.00) to the Company in August 2003 as partial payment of the Final
Payment.
E. The parties now wish to resolve the disputes and amend the
Subscription Agreement to provide for (i) payment of Five Hundred Thousand
Dollars ($500,000.00) by the Purchaser to the Company on or before September 10,
2003 (the "Effective Date"); (ii) the cancellation of the Initial Note and,
(iii) the issuance of a new note by the Company to Purchaser in the amount of
One Million, Three Hundred Thousand Dollars ($1,300,000.00) attached hereto as
Exhibit A (the "Note"), which shall contain terms and conditions substantially
identical to the Initial Note except that the Note shall be immediately
convertible into shares of the Company's common stock at $.15 per share.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
agree as follows:
1. The first paragraph of the Subscription Agreement is hereby amended to
read:
"This Subscription Agreement is made by and between Avenue Group, Inc.
(the "Seller" or the "Company") and Xxxxx Xxxxxxxxxxx Trust, located
at 000 Xxxx Xxxxxx, Xxxxx 000 Xxxxxxxx, Xxx Xxxx, 00000 (the
"Purchaser"), as of this 5th day of September, 2003 (the "Execution
Date") who is subscribing hereby to purchase a convertible promissory
note from the Seller, in the original principal amount of One Million,
Three Hundred Thousand Dollars ($1,300,000.00) (the "Note"), payable
as follows: (i) Five Hundred Thousand Dollars ($500,000.00), receipt
of which is hereby acknowledged by the Company, (ii) Five Hundred
Thousand Dollars ($500,000.00) payable on or before the Effective Date
(together, the "Cash Payment"), and (iii) Purchaser shall cancel and
tender to the Company the Initial Note (the Cash Payment and
cancellation and tender of the Initial Note shall be collectively
referred to herein as the "Purchase Price").
2. Paragraph A of the Subscription Agreement is hereby amended to read:
"The Purchaser hereby subscribes to purchase the Note for the Purchase
Price (the "Subscription"). On or before the Effective Date Purchaser
will pay and deliver to the Seller the Purchase Price. On or before
the Effective Date, the Initial Note shall be tendered to the Company
marked "cancelled" (the "Payment"). Upon delivery of the executed
Subscription Agreement to the Seller, the Purchaser's commitment to
pay and deliver the Purchase Price is irrevocable and cannot be
withdrawn. Notwithstanding the foregoing, the determination to accept
or reject this Subscription shall be in the sole discretion of the
Seller and without any input from any Purchaser or any representative,
agent or advisor of the Purchaser."
3. Paragraph B.1.(b) is hereby amended to read:
"The Purchaser has been furnished with, acknowledges receipt of and
has carefully read the following documents, which the Company has
filed with the SEC:
(i) Form 10-KSB Report for the Year Ended December 31, 2002 (the
"Form 10-KSB Report");
(ii) Form 10-QSB Report for the Quarter Ended June 30, 2003 (the
"Form 10-QSB Report");
(iii) Form 8-K Report filed June 12, 2003; and
(iv) Form 8-K Report filed August 8, 2003."
4. All references in the Subscription Agreement to "Notes" shall be
changed to "Note."
5. The Purchaser hereby agrees to deliver to the Company the Initial Note
marked "cancelled" on or before the Effective Date.
6. Purchaser hereby represents to the Company that all of the Purchaser's
representations contained in the Subscription Agreement and Appendix
attached thereto remain true and correct as though made as of the date
hereof.
7. Except as amended in paragraphs one through six above, the
Subscription Agreement remains in full force and effect and has not
been modified in any way.
IN WITNESS WHEREOF, the parties hereto have agreed to this First Amendment
this 15th day of September, 2003.
"COMPANY" "PURCHASER"
Avenue Group, Inc.
----------------------
a Delaware corporation XXXXX XXXXXXXXXXX TRUST
By: /s/ Xxxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxxxx
--------------- ---------------------
Its: Executive Vice President Its: Trustee
