Exhibit 10.86
Focus Enhancements, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
February 6, 2001
Euston Investments Holdings Limited
C/o Mischon deReya Solicitors
00 Xxxxxxxxxxxx Xxx
Xxxxxx XX0X 0XX Xxxxxxx
Attn.: Xxxxx Xxxx
Re: Amendment to Private Equity Line of Credit Agreement
Gentlemen:
Reference is made to that certain Private Equity Line of Credit
Agreement (the "Purchase Agreement"), dated as of July 28, 2000, between Focus
Enhancements, Inc. (the "Company") and Euston Investments Holdings Limited (the
"Purchaser"). In order to register for resale the Common Stock to be purchased
pursuant to the Purchase Agreement, certain provisions of the Purchase Agreement
must be deleted or revised.
In consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree to
restate the following section of the Purchase Agreement as follows:
Section 1.6 "Commitment Amount" shall mean the up to 4,000,000
shares of Common Stock which the Investor has agreed to provide to the
Company in order to purchase the Put Shares pursuant to the terms and
conditions of this Agreement.
Section 1.7 "Commitment Period" shall mean the period commencing
on the Effective Date and expiring on the earliest to occur of (x) the
date on which the Investor shall have purchased 4,000,000 Put Shares
pursuant to this Agreement, (y) the date this Agreement is terminated
pursuant to Section 2.4, or (z) the date occurring two years from the
date of commencement of the Commitment Period.
Section 1.16 "Material Adverse Effect" shall mean any effect on
the business, operations, properties or financial condition of the
Company that is material and adverse to the Company and its
subsidiaries and affiliates, taken as a whole, and/or any condition,
circumstance, or situation that would prohibit or otherwise interfere
with the ability of the Company to enter into and perform any of its
obligations under this Agreement, the Registration Rights Agreement or
the Escrow Agreement in any material respect except those disclosed in
the SEC Documents prior to the date hereof.
Section 1.21 "Principal Market" shall mean the NASDAQ National
Market, the NASDAQ Small-Cap Market, the American Stock Exchange or the
New York Stock Exchange, whichever is at the time the principal trading
exchange or market for the Common Stock.
Section 1.33 "Trading Cushion" shall mean the mandatory thirty
(30) Trading Days between Put Dates.
Section 2.2(a) "Put Notice" At any time during the Commitment
Period, the Company may deliver a Put Notice to the Investor, subject
to the conditions set forth in Section 7.2; provided, however, that the
Investment Amount for each Put as designated by the Company in the
applicable Put Notice shall be neither less than $100,000 nor more than
the Maximum Put Amount.
Section 2.4(a) Termination of Investment Obligation. The
obligation of the Investor to purchase shares of Common Stock shall
terminate permanently (including with respect to a Closing Date that
has not yet occurred) in the event that (i) there shall occur any stop
order or suspension of the effectiveness of the Registration Statement
for an aggregate of thirty (30) Trading Days during the Commitment
Period, for any reason other than deferrals or suspensions in
accordance
with the Registration Rights Agreement as a result of corporate
developments subsequent to the Effective Date that would require such
Registration Statement to be amended to reflect such event in order to
maintain its compliance with the disclosure requirements of the
Securities Act or (ii) the Company shall at any time fail to comply
with the requirements of Section 6.2, 6.3 or 6.5.
Except as specifically amended by the terms of this letter, the
Purchase Agreement and its exhibits shall remain unmodified and in full force
and effect, and shall not be in any way changed, modified or superseded by the
terms set forth herein. All terms used but not defined in this letter shall have
the meanings set forth in the Purchase Agreement.
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and shall
become effective when counterparts have been signed by each party and delivered
to the other parties hereto, it being understood that all parties need not sign
the same counterpart. Execution may be made by delivery by facsimile.
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If the foregoing correctly sets forth our understanding and agreement,
please so indicate by signing where indicated below.
FOCUS ENHANCEMENTS, INC.
By: /s/ Xxxx Xxxxxxxx
------------------
Name: Xxxx Xxxxxxxx
Title: V.P. of Finance and CFO
ACCEPTED AND AGREED TO:
EUSTON INVESTMENTS HOLDINGS LIMITED
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Authorized Signatory
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