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EXHIBIT 10.23
HOMECOM COMMUNICATIONS, INC.
Xxxxx 000, Xxxxxxxx 00
0000 Xxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
October 27, 1997
VIA FACSIMILE NO. 212/213-2077
& FIRST CLASS MAIL
Eurofactors International Inc.
Xxxxxxxxx Finance
FTS Worldwide Corporation
XXXXX (collectively, the "Purchasers")
c/x Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Acquisition by the Purchasers of 5% Convertible Debentures of
HomeCom Communications, Inc. (the "Company") in an aggregate
principal amount of $1.7 Million (the "Convertible
Debentures")
Gentlemen:
This letter agreement ("Agreement") amends that certain 5% Convertible
Debenture Purchase Agreement ("Purchase Agreement"), dated as of September 19,
1997 and as amended, between the Purchasers and the Company as set forth herein.
This Agreement also confirms the understanding of the parties hereto with
respect to the Company's issuance of certain warrants to First Granite
Securities, Inc. ("FGS") in connection with the sale of the Convertible
Debentures to the Purchasers, all as more fully described below.
As used herein, the term "Transaction Documents" means the Purchase
Agreement, that certain Convertible Debenture attached to the Purchase Agreement
as Exhibit A, that certain Convertible Debenture Escrow Agreement attached to
the Purchase Agreement as Exhibit B, that certain Registration Rights Agreement
attached to the Purchase Agreement as Exhibit C, Acknowledgment and Release
Agreements in the form attached hereto as Exhibit A from each of The Malachi
Group, Inc., ClarCo Holdings, Inc., FGS and Adar Equities, and this Agreement.
I. AMENDMENT TO PURCHASE AGREEMENT. The parties hereto agree to amend the
Purchase Agreement in accordance with the following:
1. Conversion Price. The definition of "Conversion Price" set
forth in Section 1 of the Purchase Agreement is amended to be and read as
follows:
" "Conversion Price" means an amount equal to the lessor of
(a) a twenty-five (25%) percent discount from the average
closing bid price of the Common Stock as reported by NASDAQ or
on other securities exchanges or markets on which the Common
Stock is listed for the previous three (3) trading days ending
on the day before the Conversion Date, or (b) $4.00."
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2. Purchaser Review. Section 4.6 of the Purchase Agreement is
amended by deleting the first sentence of Section 4.6 in its entirety and
substituting in lieu thereof the following:
"The Purchaser hereby represents and warrants that the
Purchaser has carefully examined the reports (including the
financial statements contained therein) and all materials
required to be disclosed under Rule 502(c) under the
Securities Act."
II. ISSUANCE OF WARRANTS. Subject to receipt by the Company of counterparts
of this Agreement executed by each Purchaser, the Purchasers hereby direct the
Company to promptly issue to FGS warrants to purchase common stock (the
"Warrants") in full and complete accord and satisfaction of any and all
obligations to FGS owed by any of the parties hereto, such Warrants to have the
following terms:
SHARES: Common Stock
NUMBER OF SHARES: 400,000
EXERCISE PRICE: 200,000 shares purchasable at an exercise
price of $4.00 per share and 200,000 shares purchasable at an
exercise price of $6.00 per share
TERM OF THE WARRANTS: 3 years
ANTI-DILUTION: Standard weighted average anti-dilution rights
The parties agree that the Warrants shall be in the form attached
hereto as Exhibit B and shall be promptly signed and issued to FGS by the
Company upon receipt of the Transaction Documents.
III. ACKNOWLEDGMENT AND RELEASE. For and in consideration of the agreement
by the Company to amend the Purchase Agreement as set forth herein and to issue
the Warrants to FGS, each Purchaser and each of their respective officers,
directors, employees and affiliates (collectively "Purchaser Affiliates"), by
executing this Agreement, hereby releases, acquits and forever discharges the
Company and each of its officers, directors, employees, parents, subsidiaries
and affiliates (collectively, "Company Affiliates") from any and all claims,
demands, or obligations which any of the Purchasers or the Purchaser Affiliates
had, now has or may later claim to have against them, known or unknown, from the
beginning of time to the date of this Agreement, whether now accrued or to
accrue hereafter, involving any matters relating to the payment of compensation
or commissions, whether in cash, stock or warrants to acquire stock, in
connection with the sale of the Convertible Debentures (including, without
limitation, the issuance of the Warrants to FGS and the payment of cash
commissions to The Malachi Group, Inc.).
IV. MISCELLANEOUS.
1. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Georgia.
2. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original as against any party whose
signature appears thereon, and all of such counterparts shall together
constitute one and the same instrument. This Agreement shall become
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binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. This Agreement may be executed and delivered by fax (telecopier);
any original signatures that are initially delivered by fax shall be physically
delivered with reasonable promptness thereafter.
3. This Agreement shall become effective on the date the Company
has received an executed counterpart of this Agreement from each of the
Purchasers.
4. This Agreement shall constitute the full and complete
agreement between the parties concerning its subject matter and fully supersedes
any and all other prior agreements or understandings between the parties
regarding the subject matter hereto. This Agreement shall not be modified or
amended except by written instrument signed by all of the parties hereto.
Very truly yours,
HomeCom Communications, Inc.
By: /s/ Xxxxxx Xxx
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Xxxxxx Xxx, President
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Accepted and agreed to by the undersigned Purchasers:
Eurofactors International, Inc.
By:
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Print Name:
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Print Title:
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Attest:
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Print Name:
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Signed, sealed and delivered in the presence of:
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Notary Public
My commission expires:
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[NOTARIAL SEAL]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Accepted and agreed to by the undersigned Purchasers:
FTS Worldwide Corporation
By:
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Print Name:
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Print Title:
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By:
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Print Name:
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Print Title:
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Signed, sealed and delivered in the presence of:
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Notary Public
My commission expires:
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[NOTARIAL SEAL]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Accepted and agreed to by the undersigned Purchasers:
Xxxxxxxxx Finance
By:
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Print Name:
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Print Title:
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Attest:
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Print Title:
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Signed, sealed and delivered in the presence of:
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Notary Public
My commission expires:
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[NOTARIAL SEAL]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Accepted and agreed to by the undersigned Purchasers:
XXXXX
By:
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Print Name:
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Print Title:
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Attest:
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Print Title:
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Signed, sealed and delivered in the presence of:
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Notary Public
My commission expires:
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[NOTARIAL SEAL]
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