Exhibit 10.7
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
This Amendment No. 1 To Securities Purchase Agreement ("Amendment") is
entered into as of this 28th day of June 1999 by and between GLOBAL DIAMOND
RESOURCES, INC., a Nevada corporation (the "Company"), and NEW DIAMOND
CORPORATION LIMITED, a British Virgin Islands company (the "Purchaser").
R E C I T A L S
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A. The Company and the Purchaser have previously entered into that
certain Securities Purchase Agreement (the "Agreement") dated December 29, 1998.
B. Subsequent to the close of the investment set forth in the
Agreement, the Company advised the Purchaser that it paid a finder's fee
("Finder's Fee") consisting of $1,363,200 in cash and 2,750,000 shares of the
common stock, $.0005 par value per share, of the Company ("Common Stock") to Xx.
Xxx Xxxx Bin Xxx Xx-Xxxxxx Mood ("Xxx Xxxx") for services he purported to render
in connection with the investments in the Company by the Purchaser and LIWA
Diamond Company Limited ("LIWA").
C. Pursuant to the request of the Company, the Purchaser and LIWA,
Xx. Xxx Xxxx has returned to the Company approximately $963,200 of the cash
portion of the Finder's Fee (before deducting $60,000 of the expenses paid by
the Company from such amount incurred in connection with the recovery of the
Finder's Fee) and all 2,750,000 shares of Common Stock. The Company is pursuing
the return of the $400,000 balance of the cash portion of the Finder's Fee (the
"Remaining Cash Portion"). It is uncertain whether Xx. Xxx Xxxx will return any
portion of the Remaining Cash Portion to the Company. However, as of this date,
the Company has received written notice from International PCM Holdings Limited
("PCM") that Xx. Xxx Xxxx has instructed the London branch of United Bank of
Kuwait to transfer to the Company a deposit ("Deposit") under the control of Xx.
Xxx Xxxx that the Company is advised (i) will mature in April 2000, and (ii) has
a maximum maturity value of $250,000.
D. In expectation that Xx. Xxx Xxxx may not return the Remaining
Cash Portion, the Company and the Purchaser wish to enter into this Amendment
for purposes of revising the purchase price paid by the Purchaser under the
Agreement through the Company's issuance of an additional 666,667 shares of
Common Stock (the "Additional Shares") to the Purchaser.
A G R E E M E N T
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It is agreed as follows:
1. Amendment of Agreement. Section 1.1 of the Agreement shall be
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deleted in its entirety and replaced with the following:
"1.1 Purchase and Sale of Shares. Subject to the terms and
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conditions set forth herein, the Company agrees to sell and issue to Purchaser,
and Purchaser agrees to purchase from the Company, 9,238,096 ("Shares") of
Common Stock, at a purchase price of US$.3247422 per share."
Except as specifically stated otherwise herein, all other provisions of the
Agreement shall be unaffected by this Amendment and shall remain in full force
and effect. The Company shall deliver a stock certificate (in definitive form
and registered in the name of the Purchaser) representing the Additional Shares
to Ajmal Xxxxxxx Xxxxxx, at his office (Purchaser's designated representative),
no later than three (3) business days from the date of this Agreement.
2 Representations, Warranties and Covenants of the Company.
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As a material inducement to the Purchaser to enter into this
Amendment, the Company represents, warrants and covenants as follows:
2.1 Recitals. The Recitals to this Agreement are true and
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correct in all material respects.
2.2 Capitalization. The authorized capital stock of the Company
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consists of 10,000,000 shares of Preferred Stock, $.001 par value, of which no
shares are issued, and 100,000,000 shares of Common Stock, $.0005 par value, of
which 44,915,063 shares are issued and outstanding as of the date hereof. (The
number of issued and outstanding shares of Common Stock gives effect to the
recent cancellation of 2,750,000 shares of Common Stock by Xx. Xxx Xxxx as
referred to in the Recitals and the recent cancellation of 3,616,651 shares of
Common Stock by XX Xxxxx, but does not give effect to the issuance of the
Additional Shares hereunder or the contemplated issuance concurrent herewith of
666,667 shares of Common Stock each to LIWA and PCM.)
2.3 Validity of Transactions. This Amendment, and the
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performance of the transactions contemplated herein, has been duly authorized,
executed and delivered by the Company and is the valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency reorganization and moratorium laws
and other laws affecting enforcement of creditor's rights generally and by
general principles of equity. Subject to the consent to this Amendment by New
Diamond and PCM, the Additional Shares issuable hereunder, when issued in
accordance with the terms of this Amendment, will be duly authorized, validly
issued, fully paid and nonassessable. The Additional Shares will be free of any
liens or encumbrances, except for any restrictions imposed by federal or state
securities laws.
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2.4 No Violation. The execution, delivery and performance of this
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Amendment has been duly authorized by the Board of Directors of the Company and
the Company has taken all necessary corporate action in connection with the
execution, delivery and performance of this Amendment. The execution, delivery
and performance of this Amendment will not violate any law or any order of any
court or government agency applicable to the Company, as amended, or the
Articles of Incorporation or Bylaws of the Company, as amended, and will not
result in any breach of or default under, or, except as expressly provided
herein, result in the creation of any encumbrance upon any of the assets of the
Company pursuant to the terms of the PCM Agreement (as such term is defined in
Section 2.1(i) of the Agreement), or any other agreement or instrument by which
the Company or any of its assets may be bound. No approval of or filing with any
governmental authority (including any governmental authority in South Africa) is
required for the Company to enter into, execute or perform this Amendment.
3. Additional Understandings and Agreements.
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A. In furtherance of the resolutions adopted by the Board of
Directors of the Company at its meeting held on May 25, 1999, the Company agrees
to pay upon demand the actual legal fees, costs and other expenses incurred by
the Purchaser and the Purchaser's counsel, Mr. Ajmal Xxxxxxx Xxxxxx and Xxxxxx &
Xxxxxx, relating to the Finder's Fee, such meeting, this Amendment and all
matters relating thereto. Such expenses shall include, without limitation,
travel expenses and the cost of preparing and filing with the Securities and
Exchange Commission all reports relating to the issuance of the Additional
Shares or the current ownership by Purchaser of the total Shares). Such amounts
shall be paid to the Purchaser as reimbursement, or directly to the law firm or
vendor, as directed by Purchaser or as the Company deems appropriate.
Concurrently with the execution of this Agreement, the Company is paying Sidley
& Austin an aggregate of $30,398.91, consisting of (i) $15,398.91 payable in
accordance with the invoice dated June 24, 1999, and (ii) $15,000 paid on
account of services rendered (and to be rendered) and expenses invoiced from and
after June 1, 1999.
B. In the event Xx. Xxx Xxxx reimburses the Company for the
Remaining Cash Portion that is not a part of the Deposit or the proceeds of the
Deposit, or any portion thereof (i.e., up to $150,000), within twelve (12)
months from the date of this Amendment, the Purchaser shall, at its option (i)
return to the Company for cancellation shares of Common Stock at the rate of one
(1) share of Common Stock for each $0.60 of the Remaining Cash Portion paid to
the Company by Xx. Xxx Xxxx, or (ii) pay the Company $0.20 for each share of
Common Stock otherwise required hereby to be returned for cancellation. The
Purchaser shall either return the shares of Common Stock for cancellation of
make the required cash payment no later than thirty (30) days after receiving
written notice from the Company that its has received a reimbursement of the
Remaining Cash Portion from Xx. Xxx Xxxx. Notwithstanding the foregoing, no
cancellation of shares or cash payments shall be required of the Purchaser if
the amount of the reimbursement by Xx. Xxx Xxxx is less than $25,000, but in
such case any cancellation of shares or cash payment that would otherwise be
required then to be made shall be carried forward and shall be made at the time
of and together with the next subsequent reimbursement, which together with any
reimbursement so carried forward, would equal or exceed $25,000. In the event
that the Company delivers to the Purchaser evidence, which evidence is
satisfactory to the Purchaser in its reasonable discretion, of the Company's
irrevocable receipt of the Deposit (or any specified portion thereof), the
Purchaser shall return
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for cancellation, and the Company shall redeem from the Purchaser, without the
payment of any consideration and without the Purchaser having any purchase
right, shares of Common Stock at the rate of one (1) share of Common Stock for
each $0.60 of the Deposit so received by the Company.
C. Subject to and conditioned upon the Company's issuance of the
Additional Shares to the Purchaser in accordance with the terms and conditions
of this Amendment, the Purchaser hereby releases, acquits and forever discharges
the Company and its Privies from any and all claims, demands, actions, causes of
action, damages, costs, or other claims whatsoever in law or equity, which the
Purchaser may have against the Company and any of its Privies pertaining to,
relating to, connected with, or arising out of the Company's payment of or
failure to disclose the Finder's Fee. As used in this Amendment, the term
"Privies" refers to the Company's: agents, assigns, attorneys, directors,
employees, executors, heirs, insurers, officers, predecessors, reinsurers,
subsidiaries, and successors; provided, however, the term Privies shall not
include Xx. Xxx Xxxx.
D. The Purchaser acknowledges that the Company intends to enter
into an agreement with LIWA on the same terms and conditions as this Amendment
for purposes of issuing LIWA an additional 666,667 shares of Common Stock ("LIWA
Additional Shares") pursuant to that certain Securities Purchase Agreement dated
December 29, 1998 between the Company and LIWA. The Purchaser also acknowledges
that the Company intends to enter into an agreement with PCM in the form of
agreement attached hereto as Exhibit A for purposes of issuing to PCM 666,667
shares of Common Stock ("PCM Shares") on the terms and conditions set forth in
Exhibit A. The Purchaser hereby waives any rights of notice or participation
with respect to the Company's issuance of the LIWA Additional Shares or the PCM
Shares afforded the Purchaser under Section 6.3 of the Agreement.
4. Miscellaneous. The parties agree that the miscellaneous provisions of
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Section 8 of the Agreement shall apply to this Amendment and shall be
incorporated herein by this reference, with the exception of the first paragraph
of Section 8.2 of the Agreement which shall not apply inasmuch as the matters
provided for therein are already contemplated by Section 3A of this Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first written above.
GLOBAL DIAMOND RESOURCES, INC.,
a Nevada corporation
By: /s/ Xxxxxx xx Xxxxxxxx
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Xxxxxx xx Xxxxxxxx,
Chief Executive Officer
NEW DIAMOND CORPORATION LIMITED,
a British Virgin Islands company
By: /s/ Xxxxx X. Basodan
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Xxxxx X. Basodan,
An authorized officer
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