Exhibit 10.70
AMENDMENT NO. 1 TO MANAGEMENT AGREEMENT
THIS AMENDMENT NO. 1 (this "FIRST AMENDMENT") is made as of this 21st day
of June 2001 by and between XXXXX-XXXXXXXXXX.XXX, CORP., a Delaware corporation
with an address at Two Xxxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx
00000 (the "COMPANY"), and SELWAY MANAGEMENT, INC., a Delaware corporation, with
an address at 000 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000 ("SELWAY") and amends
that certain Management Agreement as of November 1, 2000 between the Company and
Selway (the "INITIAL AGREEMENT"). All capitalized terms used in this First
Amendment and not defined herein shall have the meaning ascribed thereto in the
Initial Agreement.
RECITALS
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WHEREAS: the Company and Selway entered into the Initial Agreement
pursuant to which Selway provides the Company with ongoing
management and consulting services with respect to the
development of the Company's business;
WHEREAS: Selway Partners, LLC (the "INVESTOR"), Selway and the Company
have entered into an Investment Agreement of even date herewith
(the "INVESTMENT AGREEMENT") pursuant to which the Investor shall
purchase and the Company shall sell and issue to the Investor or
Selway certain of the Company's Convertible Subordinated
Debentures (the "DEBENTURES"), in accordance with the terms and
conditions set forth in the Investment Agreement; and
WHEREAS: Selway and the Company desire to amend the Initial Agreement to
alter the terms relating to the consideration paid to Selway for
its services, as amended by this First Amendment from and after
the date of this First Amendment, all as more fully described in
this First Amendment;
NOW THEREFORE, in consideration for the foregoing and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree to modify and amend certain provisions of the Initial Agreement as
follows:
1. CONSIDERATION
Company and Selway hereby agree to amend Section 2.1 of the Initial
Agreement as it relates to the payment of compensation for services provided by
Selway for the benefit of the Company by omitting such Section 2.1 in its
entirety and substituting the following therefor:
"2.1 On or before June 15, 2001 remit to Selway Thirty Thousand and
00/100 Dollars ($30,000.00) (the "JUNE 2001 PAYMENT") made payable
to Selway, which June 2001 Payment is comprised of management fee
payments for the months of May 2001 and June 2001 of Fifteen
Thousand and 00/100 ($15,000.00) Dollars for each such month, which
payments have not been made as of the date hereof. On the first day
of July 2001 and on the first day of each month of the term of this
Agreement thereafter, remit to Selway Fifteen Thousand and 00/100
Dollars ($15,000.00) made payable to Selway. Each such monthly
payment of Fifteen Thousand and 00/100 Dollars ($15,000.00) shall
hereinafter be referred to as the "MONTHLY FEE"). At the sole option
of Selway, such Monthly Fees shall be payable in either (a) cash; or
(b) in such number of Debentures (as defined in the Investment
Agreement dated of even date herewith (the "INVESTMENT AGREEMENT")
by and among the Company, Selway Partners LLC and Selway) of the
Company as shall have an aggregate principal value equal to each
such Monthly Fee. If, in any such month, Selway elects to receive
such Monthly Fee in the form of Debentures, the Company shall issue
a Debenture in favor of Selway substantially in the form annexed as
Exhibit C to the Investment Agreement, which Debenture shall be
subject to the terms and conditions of the Investment Agreements (as
defined in the Investment Agreement), including, without limitation,
being subject to the security interest granted by the Company in
favor of the holders of such Debentures pursuant to such Investment
Agreements. The foregoing notwithstanding, Selway agrees to waive
its right to receive the Series B Preference Amount upon the
incurrence of a Liquidation Event (as each such term is defined in
the Certificate of Designations, Number, Powers, Conversion Rights,
Preferences and Relative, Participating, Optional and other Special
Rights and Qualifications, Limitations and Restrictions of Series B
Convertible Preferred Stock (the "CERTIFICATE OF DESIGNATION")).
Selway agrees that upon the occurrence of a Liquidation Event, it
shall be entitled to receive such amount as is set forth in Section
4(c)(1)(Y) of the Certificate of Designation.If, in any such month,
Selway elects to receive such Monthly Fee in the form of cash, such
amount shall be remitted to Selway at the address set forth in the
introductory paragraph to this Agreement. Selway hereby elects to
receive the June 2001 Fee in the form of Debentures with an
aggregate principal value equal to the June 2001 Payment in the form
set forth above."
2. AUTHORIZATION OF SHARES
Section 4.4 of the Initial Agreement is hereby amended by adding (a) "and
Preferred Shares (as defined in the Investment Agreement) into which the
Debentures are convertible" after the first occurrence of "Common Stock" therein
and (b) "and Preferred Shares into which the Debentures are convertible" after
each other occurrence of "Common Stock" in such Section 4.4.
3. AUTHORIZATION; ENFORCEABILITY
All corporate action on the part of the Company necessary for the
authorization, execution, delivery and performance of all its obligations under
this First Amendment has been taken. This First Amendment, when executed and
delivered by the Company, will constitute the valid, binding and enforceable
obligations of the Company, legally enforceable against it in accordance with
its terms, except: (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally; and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
4. INITIAL AGREEMENT RATIFIED AND CONFIRMED
The Initial Agreement, as specifically amended by this First Amendment, is
and shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed. Selway and Company each hereby confirm that all
representations and warranties made by each of them in the Initial Agreement are
true and correct as of the date hereof.
5. MISCELLANEOUS
The Initial Agreement, as amended by this First Amendment, constitutes the
entire understanding of the parties with respect to its subject matter and
supersedes all previous agreements, arrangements and understandings, written or
oral. No waiver or modification of this First Amendment will be valid or binding
unless in writing and signed by both parties and no waiver of any breach or
default will be deemed to be a waiver of any preceding or subsequent breach or
default. This First Amendment may be executed in several counterparts and by
each party on a separate counterpart each of which when executed and delivered
shall be an original, and all of which together shall constitute one instrument.
This First Amendment shall for all purposes be construed in accordance with the
laws of the State of New Jersey.
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IN WITNESS WHEREOF, the parties have signed this First Amendment as of the
21st day of June, 2001.
SELWAY MANAGEMENT, INC. XXXXX-XXXXXXXXXX.XXX, CORP.
By: /s/ Xxxxx XXXXX By: /s/ XXXXX X XXXXXX
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Name: Xxxxx Xxxxx Name: Xxxxx X Xxxxxx
Title: CEO Title: President
