EXHIBIT 10.1
AMENDMENT NO. 1 TO SUBSCRIPTION AGREEMENT
DATED AS OF DECEMBER 24, 1998
WHEREAS on April 13 and April 23, 1998 each of the investors identified on
Schedule A hereto ("Subscriber" or "Subscribers") had entered into a
subscription agreement with BCAM International, Inc. (the "Company") relating to
the investment by the Subscribers in securities of the Company (the
"Subscription Agreement"); and
WHEREAS, each of the Subscribers has purchased the Company Shares for the
Purchase Price as identified on Schedule A hereto; and
WHEREAS, the Company and Subscribers are desirous of amending the
Subscription Agreements.
NOW THEREFORE, for the mutual promises contained herein and other good and
valuable mutual consideration, receipt of which is acknowledged, the parties
agree as follows:
1. Capitalized terms employed in this Amendment No. 1 (the "Amendment")
shall have the same meanings as attributed to them in the Subscription
Agreement.
2. Except as modified herein, the Subscription Agreement and documents
referred to therein, and all its terms and conditions remain in full force and
effect. Unless otherwise indicated, the amendments set forth herein shall be
deemed effective as of the date of the Subscription Agreement and the date
hereof.
3. Concurrently with the execution of this Amendment, the Company shall
deliver to the Subscribers the amount of Company Stock ("Prior Reset Shares")
set forth on Schedule A hereto. The Prior Reset Shares are granted all the
rights and benefits accorded the Company Shares, including but not limited to
the reissuance of the Securities without restrictive legend as described in
Section 4 of the Subscription Agreement, and the registration rights described
in Section 10 of the Subscription Agreement. The Prior Reset Shares will be
issued without restrictive legend and be free-trading and deemed included in the
Company's registration statement on Form SB-2 declared effective by the
Securities and Exchange Commission on August 13, 1998. The Purchase Price set
forth on Schedule A hereto shall be deemed the Purchase Price for all the
Company Shares set forth on Schedule A and the Prior Reset Shares (i.e. $.75 per
Company Share).
4. The Subscribers are granted Reset rights in connection with the
aggregate $2,000,000 investment in Company Shares notwithstanding the Reset
accomplished in connection with the August 14, 1998 Reset Date and partial Reset
accomplished in
connection with the October 13, 1998 Reset Date.
5. Section 9(b) of the Subscription Agreement is deleted and replaced with
the following:
"During each calendar month commencing January 1, 1999 and ending
December 2001, each Subscriber will be entitled to Reset up to
12-1/2 percent of such Subscriber's Purchase Price ("Reset Purchase
Amount"). Any portion of the Purchase Price which the Subscriber has
not elected to Reset when permitted will be subject to Reset at the
Subscriber's election at any time thereafter even if the result
would be a Reset of more than 12-1/2% of such Subscriber's Purchase
Price during any calendar month. The date Notice of Reset
identifying the Reset Purchase Amount is given to the Company via
telecopier is a Reset Date."
6. Section 9(c) of the Subscription Agreement is deleted and replaced with
the following:
"On each Reset Date a number of Company Shares will be calculated
for the designated portion of the Reset Purchase Amount by dividing
the Reset Purchase Amount by a number equal to seventy-three percent
(73%) of the average closing bid price for the Common Stock on the
NASDAQ SmallCap Market, or on the principal securities exchange or
other securities market on which the Common Stock is then being
traded, for the five trading days immediately preceding, but not
including, the Reset Date (the "Reset Price"). If the Reset Price is
less than $.75, then the Company will issue to the Subscriber the
number of shares of Common Stock obtained by subtracting (y) the
number of shares obtained by dividing the Reset Purchase Amount by
$.75 from (z) the number of shares obtained by dividing the Reset
Purchase Amount by the Reset Price."
7. Section 9(e) of the Subscription Agreement is deleted and replaced with
the following:
"The Company agrees to deliver the Additional Shares to the
Subscriber in hand, without restrictive legend and as free-trading
Common Stock, no later than fourteen (14) days after the Reset Date
(the "Delivery Date"). The Company understands that a
delay in the delivery of the Additional Shares as unlegended,
free-trading Common Stock beyond the Delivery Date could result in
economic loss to the Subscriber. As compensation to the Subscriber
for such loss, the Company agrees to pay late payments to the
Subscriber for late delivery of Additional Shares beyond the
Delivery Date, in the amount of $100 per business day after the
Delivery Date for each $10,000 of Designated Portion of Purchase
Price for which a Reset has been calculated. The Company shall pay
any payments incurred under this Section in immediately available
funds upon demand. The late payment charges described above shall be
payable through the date the Additional Shares are received in hand
by the Subscriber, or a rescission notice is given to the Company by
the Subscriber pursuant to the next sentence of this paragraph. The
Subscriber may rescind any Reset Notices at any time after the
Delivery Date and prior to actual receipt by the Subscriber of the
Additional Shares."
It is understood and agreed that until the effectiveness of the registration
statement described in Section 8 below, Additional Shares over above the amount
of Additional Shares already registered in the Form SB-2 registration statement
described in Section 3 above, may be delivered with restrictive legend. The
Company warrants and represents that the number of shares designated for each
Subscriber on Schedule A hereto as "Registered Shares" are deliverable without
restrictive legend. The foregoing sentence notwithstanding, the Company is not
relieved from its obligation to diligently prepare and file and obtain a
declaration of effectiveness for the registration statement described in Section
8 below.
8. The Company's failure to file a registration statement with the
Securities and Exchange Commission on or before April 15, 1999 (the "Filing
Date"), and/or the failure of such registration statement to be declared
effective prior to July 15, 1999 (the "Effective Date") registering for
unrestricted public resale by the Subscribers, all Additional Shares issuable
upon Reset, but not less than 10,000,000 Additional Shares (in proportion to the
Subscribers' respective Purchase Prices), will be deemed a Registration Default
as that term is employed in the Subscription Agreement. In the event a
Registration Default occurs, Liquidated Damages will accrue from and after the
Filing Date until the date the registration statement is accepted for filing by
the Securities and Exchange Commission and from the Effective Date until the
registration statement is actually declared effective by the Securities and
Exchange Commission, as the case may be, at 2% for each 30 days or part thereof
on such portion of the Purchase Price for which Reset Shares have not been so
registered.
9. The Subscribers are no longer obligated to purchase the Put Shares
described in Section 11.2 of the Subscription Agreement.
10. The Subscriber shall not be entitled to Reset that amount of Reset
Purchase Amount in connection with that number of Additional Shares which would
be in excess of the sum of (i) the number of shares of Common Stock beneficially
owned by the Subscriber and its affiliates on a Reset Date, and (ii) the number
of Additional Shares issuable in connection with a particular Reset with respect
to which the determination of this proviso is being made on such Reset Date,
which would result in beneficial ownership by the Subscriber and its affiliates
of more than 9.99% of the outstanding shares of Common Stock of the Company. For
the purposes of the proviso to the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder.
11. This Amendment may be executed in multiple counterparts, and by
facsimile signature and may be delivered via telecopier.
BCAM INTERNATIONAL, INC.
By:_________________________________
AUSTOST ANSTALT XXXXXX
By:_________________________________
BALMORE FUNDS S.A.
By:_________________________________
10. The Subscriber shall not be entitled to Reset that amount of Reset
Purchase Amount in connection with that number of Additional Shares which would
be in excess of the sum of (i) the number of shares of Common Stock beneficially
owned by the Subscriber and its affiliates on a Reset Date, and (ii) the number
of Additional Shares issuable in connection with a particular Reset with respect
to which the determination of this proviso is being made on such Reset Date,
which would result in beneficial ownership by the Subscriber and its affiliates
of more than 9.99% of the outstanding shares of Common Stock of the Company. For
the purposes of the proviso to the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder.
11. This Amendment may be executed in multiple counterparts, and by
facsimile signature and may be delivered via telecopier.
BCAM INTERNATIONAL, INC.
By:_________________________________
BEESTON INVESTMENTS LTD.
By:_________________________________
MANOR INVESTMENTS
By:_________________________________
XXXXX ENTERPRISES
By:_________________________________
EAST LANE CORPORATION LTD.
By:_________________________________
AMENDMENT NO. 1 SCHEDULE A
PRIOR
RESET
SHARES
COMPANY PURCHASE REGISTERED
SUBSCRIBERS SHARES PRICE SHARES
AUSTOST ANSTALT XXXXXX 906,091 750,000 93,908
7440 Fuerstentum
Xxxxxxxxxxx
Xxxxxxxxxxx 000
Fax: 000-000-000000000
BALMORE FUNDS S.A. 1,026,903 850,000 106,429
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxx
Fax: 000-000-000-0000
BEESTON INVESTMENTS LTD. 241,624 200,000 25,042
000 Xxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxx
Fax: 000-000-00000000
MANOR INVESTMENTS 120,813 100,000 12,521
c/o X. Xxxxxxxxx
0 Xxxxxxxxx Xxxxxx
Xxxx-Xxxx, Xxxxxx
Fax:
XXXXX ENTERPRISES 60,407 50,000 6,261
00X Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxx
XX0 0XX
Fax: 000-000-000000000
EAST LANE CORPORATION LTD. 60,407 50,000 6,261
0 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxx
Fax: 000-000-0-000-0000
TOTALS 2,416,245 2,000,000 250,422
