EXHIBIT 10.01
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT (this "Amendment") is made as of the 29th of September,
1998, to that SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of July
23, 1998, by and between Nanopierce Technologies, Inc., a corporation organized
under the laws of the State of Nevada, U.S.A, with headquarters located at 000
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx (the "Company") and Mr. Y.L.
Xxxxxx, a citizen and resident of Jerusalem, Israel (the "Buyer"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
WITNESSETH:
WHEREAS, pursuant to the Agreement the Buyer agreed to purchase, at three
(3) separate closings, each to occur prior to September 23, 1998, as described
in the Agreement, 150,000 Series B Shares; and
WHEREAS, as of the date of this Amendment, the, Company has tendered
150,000 Series B Shares in accordance with the Agreement, and Buyer has
purchased 50,000 Series B Shares of the 150,000, all 50,000 of which were
purchased at the First Closing; and
WHEREAS, the parties have agreed to modify the Agreement as stated
hereinafter.
NOW THEREFORE, for a valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties hereto agree as follows:
1. On or before September 29, 1998, the Buyer shall purchase an additional
25,000 Series B Shares (the "Final Series B Shares"), for an aggregate
purchase price of US$250,000.00. The Buyer shall make payment for the
Final Series B Shares by wire transfer or certified or cashier's check
(or otherwise representing immediately available good funds) delivered
to the Escrow Agent on behalf of the Company, and the Company shall
deliver a certificate or certificates representing the Final Series B
Shares to the Escrow agent on behalf of the Buyer, in each case on or
before September 29, 1998.
The Buyer shall not be entitled to and shall not receive Warrants (as
described in Recital B(iii)) with respect to the purchase of the Final
Series B Shares.
2. After Buyer's purchase of the Final Series B Shares, Buyer's obligation
to purchase further Series B Shares under the Agreement shall cease, and
Buyer shall thereafter not be required or permitted to purchase further
Series B Shares unless the Agreement is further amended by the parties.
The Company shall have no obligation to sell to the Buyer, and the Buyer
shall have no obligation to purchase from the Company, any Series C
Shares.
3. Each of the parties, by its execution of this Amendment, effective as of
the date (the "Waiver Date") which is the later of (i) the date of
actual receipt by the Company of immediately available funds
representing the full purchase price for the Final Series B Shares, or
(ii) actual receipt by the Buyer (or the Escrow Agent on behalf of the
Buyer, if the Buyer elects for the Escrow Agent to hold them in
accordance with the Escrow Agreement) of a certificate or certificates
representing the final Series B Shares that as of the Waiver Date, any
prior breach of the Agreement or any of the other written agreements
executed by the parties with respect to the transactions contemplated by
the Agreement (the "Additional Agreements") shall be irrevocably waived
in their entirety, including without limitation those breaches of the
Buyer mentioned in that letter from the Company to Xx. Xxxxx Xxxxxxx,
Xx., dated September 24, 1998. On and after the Waiver Date, neither
party shall ever have the right to assert any penalty or allege or
attempt to prosecute a claim for breach of the Agreement or the
Additional Agreements. Neither party by its execution of this Amendment
shall be deemed to have admitted that it is in breach under the
Agreement or the Additional Agreements.
4. The Buyer by its execution of this Amendment irrevocably agrees that the
Company shall have the right, on and after the date hereof, in the
Company's sole discretion, to assign all (or such portion as the Company
determines) of the Buyer's rights under the Agreement and the Additional
Agreements (other than the Stock Escrow and Security Agreement) to any
third party or parties, each of which the Company in its sole discretion
may select. The Buyer by its execution of this Amendment irrevocably
consents to any such assignment by the Company, whenever effected. No
such assignment shall operate to affect the rights of the Buyer as
described in the Agreement and the Additional Agreements (as such rights
have been or may be amended from time to time).
5. Section 4(m) of the Agreement, regarding the restriction from issuance
by the Company of "below market" securities, is hereby rescinded in its
entirety.
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6. The Company shall have the continuing right to rely upon the truth and
accuracy of the covenants, representations and warranties of the Buyer
contained in the Agreement and the Additional Agreements.
Except as modified by this Amendment, the parties acknowledge and reaffirm
each of the terms and conditions of the Agreement as contained therein, each of
which is incorporated herein by this reference.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
COMPANY:
NANOPIERCE TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xx. Xxxx X. Xxxxxxxxx, Executive Vice President
BUYER:
/s/ Y.L. Xxxxxx
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Mr. Y.L. Xxxxxx
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