Exhibit 99.3
------------
AMENDMENT NO. 1 TO SERIES F PREFERRED STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1 TO SERIES F PREFERRED STOCK PURCHASE AGREEMENT, dated
as of June 19, 2001 ( "Amendment"), by and among NEW WORLD COFFEE - MANHATTAN
BAGEL, INC., a Delaware corporation (the "Company"), and Xxxxxxx Xxxxx III, L.P.
("Xxxxxxx Xxxxx"), amending the Series F Preferred Stock Purchase Agreement,
dated as of June 7, 2001 (the "Original Purchase Agreement"), among the Company
and Xxxxxxx Xxxxx.
WHEREAS, the Company and certain purchasers (the "Series F
Purchasers") have entered into a Third Series F Preferred Stock and Warrant
Purchase Agreement dated as of June 19, 2001 (the "Third Purchase Agreement"),
pursuant to which the Series F Purchasers will purchase from the Company an
additional 25,000 shares of Series F Preferred Stock, $.001 par value, of the
Company and warrants to purchase shares of Common Stock of the Company in the
form attached to the Third Purchase Agreement;
WHEREAS, the Company and Xxxxxxx Xxxxx deem it in their best interests
to amend the provisions of the Original Purchase Agreement, and the Company and
Xxxxxxx Xxxxx are willing to amend the Original Purchase Agreement as provided
herein; and
WHEREAS, as an inducement to the Series F Purchasers to consummate the
transactions contemplated by the Third Purchase Agreement, the Company and
Xxxxxxx Xxxxx have agreed to enter into this Amendment;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Section 9.1(c) of the Original Purchase Agreement is hereby amended
and restated in its entirety as follows:
"(c) WARRANTS.
(i) ISSUANCE OF WARRANTS. On or before June 19, 2001, the Company will
issue to the Purchaser a Warrant to purchase up to 3,384,629 shares
(representing, in the aggregate, 4.50% of the Fully Diluted Common Stock of
the Company as of June 20, 2001, subject to adjustment as provided therein)
(the "Original Warrant Shares") of the Company's Common Stock exercisable
at $0.01 per share (the "Warrant"), which Warrant will be substantially in
the form of the Warrant attached hereto as EXHIBIT B. The term "Fully
Diluted" shall mean the fully diluted Common Stock of the Company,
determined by taking into account all options, warrants and other
convertible securities, but not including any warrants or options with a
strike price greater than $3.00 per share and not including any of the
Warrants issued under Section (9.1(c)(ii)). For purposes of this Section
9.1(c)(i), the number of shares subject to such Warrant shall be calculated
to
result in such percentages of Fully Diluted Common Stock after the
issuance of such Warrant.
(ii) WARRANT STEP-UP. If within one year following the Closing Date,
(i) the Company has not redeemed the Shares or (ii) the Company has
redeemed the Shares by the issuance of the Notes (as provided in the
Certificate of Designation) attached hereto as EXHIBIT C (the "Notes") but
has not paid such Notes in full, the Company will issue, on such first
anniversary date and on each June 30 and December 31 following such first
anniversary of the Closing Date, to the Purchaser warrants in the form of
EXHIBIT B hereto representing an additional 0.30% of the Fully Diluted
Common Stock of the Company outstanding on such date, which percentage
shall be reduced pro rata based upon Shares theretofore redeemed for cash
or the Notes theretofore repaid, as applicable. For purposes of this
Section 9.1(c)(ii), at the time of each such issuance of Warrants, the
number of shares subject to such Warrants shall be calculated to result in
the applicable percentage of Fully Diluted Common Stock before such
issuance of Warrants. The issuance of any additional warrants pursuant to
this Section 9.1(c)(ii) shall be treated as an adjustment to the purchase
price of the Shares."
2. Section 8 of the Original Purchase Agreement is hereby amended by
adding a new clause (d) which shall read in its entirety as follows:
"(d) On or prior to the earlier of October 17, 2001 and a Change of
Control Event (as defined in the Certificate of Designation), the Company
shall file an amendment to its Certificate of Incorporation to increase the
number of shares of authorized shares of Common Stock to at least
125,000,000."
3. The form of Warrant attached as Exhibit B to the Original Purchase
Agreement is hereby amended by deleting the form of Warrant in its entirety and
replacing it with a new form of Warrant, a copy of which is attached hereto.
4. The Original Purchase Agreement, as amended by this Amendment, is
hereby in all respects confirmed and each of the parties hereto acknowledges and
agrees that it is bound by all the terms and provisions thereof, as amended
hereby.
5. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to conflict of laws
principles.
6. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
2
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as a sealed instrument, all as of the day and year first above
written.
NEW WORLD COFFEE - MANHATTAN
BAGEL, INC.
By______________________________
Name:
Title:
XXXXXXX XXXXX III, L.P.
By______________________________
Name:
Title:
