Exhibit 10.22
AMENDMENT AGREEMENT, dated as of June 30, 2000, by and between AMBIENT
CORPORATION, a Delaware corporation, with headquarters located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (the "Company"), and each entity named on a signature
page hereto (each, a "Buyer" or a "Holder").
Reference is made to the Securities Purchase Agreement, dated as of
February 15, 2000 (the "Securities Purchase Agreement"), to which the Company
and each of the Buyers is a party, and to the transactions contemplated thereby
(the "Transactions"). Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Securities Purchase Agreement.
Pursuant to and as contemplated by the Transaction Agreements and certain
amendments thereto heretofore entered into, among other things, the Company has
issued (i) the Initial Debentures and certain Warrants issued on the Initial
Closing Date to the Buyers and (ii) Additional Debentures and certain related
Warrants to some of the Buyers. A schedule of the Debentures and Warrants issued
to date is attached hereto as Exhibit A.
The Company has advised the Buyers that it is in the process of preparing
a draft of the Registration Statement to be filed with the SEC.
The Company and the Buyers have agreed to certain changes in the terms of
certain of the Transaction Agreements.
The Company desires to have the Buyers purchase the balance of the
Additional Debentures. Certain of the Buyers have indicated their desire to
modify the aggregate Purchase Price to which they subscribed in the Securities
Purchase.
NOW, THEREFORE, the Company and the Buyers do hereby agree as follows:
1. In Section 4(D) of each Debenture and in Section 2.2 of each Warrant,
in each case whether issued or to be issued, the phrase "9.99% of the
outstanding shares of Common Stock" is amended to read "4.99% of the outstanding
shares of Common Stock."
2. Anything in the Securities Purchase Agreement of each Buyer to the
contrary notwithstanding, the aggregate amount of the Purchase Price for each
Buyer shall be the amount specified opposite such Buyer's name on Exhibit A
under the column "Aggregate Purchase Price." Exhibit A also reflects the
aggregate amount of Initial Debentures and of Additional Debentures subscribed
for by each Buyer, after taking into account the adjustments made hereby.
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3. In each of Section 2(a)(i) and (ii) of the Registration Rights
Agreement, the phrase "two hundred percent (200%)" is amended to read "one
hundred ten percent (110%)."
4. (a) The following provisions apply to the Company and to each Buyer as
to whom there is a balance in the column "Purchase Price Balance" on Exhibit A
annexed hereto (an "Identified Buyer"). For purposes of the following provisions
of this Section 3, capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Joint Escrow Instructions.
(b) Each undersigned Identified Buyer and the Company acknowledge
that, in connection with the closing of the balance, if any of Additional
Debentures to be purchased by such Identified Buyer:
(i) The undersigned Identified Buyer has, directly or
indirectly, caused or will, directly or indirectly, cause the Purchase Price for
the Buyer's Additional Debentures (the "Additional Purchase Price") to be
deposited in escrow with the Escrow Agent (the "Additional Escrow Deposit").
Notwithstanding the foregoing, the Escrow Agent shall not be deemed to have the
Additional Escrow Deposit in escrow until good funds are cleared and credited to
the Escrow Agent's escrow account previously identified to such Identified
Buyer.
(ii) Any obligations of the Escrow Agent under the Escrow
Instructions to the contrary notwithstanding, the Escrow Agent is holding the
Additional Escrow Deposit and, if and when delivered to it by the Company, the
Additional Debentures in escrow merely as an accommodation to the Company and
the Identified Buyer, subject, however, to the Escrow Agent's rights under the
Escrow Instructions, but not subject to any obligations of the Escrow Agent
other than (A) to release the Additional Debentures upon the instructions of the
Company and (B) to release the Additional Escrow Deposit in accordance with the
written instructions of Advisor Associates, Inc. ("Advisor").
(iii) In furtherance of the foregoing, each Identified Buyer
specifically irrevocably designates Advisor as such Identified Buyer's agent to
give instructions to the Escrow Agent regarding the release of the Additional
Escrow Deposit. The Escrow Agent shall be entitled to rely on the written
instructions the Escrow Agent reasonably believes were provided to the Escrow
Agent (by delivery or by fax) by Advisor, even if after the date hereof such
Identified Buyer provides alternative, contrary or inconsistent instructions to
the Escrow Agent. Each Identified Buyer specifically acknowledges that the
Escrow Agent may disregard all such instructions from such Identified Buyer, and
that such Identified Buyer is relying on, and will look solely to, Advisor for
any claims the Identified Buyer may have with respect to the maintenance or
release of the Additional Escrow Deposit.
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(iv) Any Escrow Property (including (A) documents delivered in
escrow to the Escrow Agent by the Company which the Company authorizes the
Escrow Agent to release to Buyer and (B) any Escrow Funds which may be released
to the Identified Buyer for any reason) will be delivered by Escrow Agent to
Advisor, even if after the date hereof such Identified Buyer provides
alternative, contrary or inconsistent instructions to the Escrow Agent. Each
Identified Buyer specifically acknowledges that the Escrow Agent may disregard
all such instructions from the Identified Buyer, and that the Identified Buyer
is relying on, and will look solely to, Advisor for any claims such Identified
Buyer may have with respect to the delivery of any items held as Escrow Property
to the Identified Buyer.
(v) To the extent relevant, each Identified Buyer waives the
conditions to the closing of the Additional Debentures and the timing of the
Additional Closing Date, including, but not necessarily limited to those
provided in Section 6(b) [date specified in Filing Additional Closing Date
Notice or Effectiveness Additional Closing Date Notice] and Section 8(h)
[certain specific conditions applicable to the Additional Closing Date] of the
Securities Purchase Agreement and any condition to such closing relating to any
requirement in the Registration Rights Agreement that the Registration Statement
be filed by the Required Filing Date or effective by the Required Effective
Date.
(vi) The waivers referred to in the preceding paragraphs are
intended as waivers of the conditions to the closing referred to and not of any
other rights the Identified Buyer may have as to the Company now or in the
future. The actions referred to above and the other provisions of this
instrument were and are being taken by the undersigned Buyer and the Company on
their own initiative or on the advice of other parties, but without consultation
with, and without the advice, direction, instructions, consent or other
involvement of, Xxxxxxx & Xxxxxx LLP.
(viii) If any part of the Additional Escrow Deposit is not
released from escrow pursuant to written instructions of Advisor by
______________, 2000 (or such later date designated in writing by Advisor), the
Escrow Agent will deliver such remaining Additional Escrow Deposit to Advisor
within three (3) business days thereafter. The provisions of paragraph (iv)
above will apply to such action.
(viii) Each Identified Buyer understands that a portion of the
Additional Purchase Price and the Purchase Price paid by other Buyers for their
Additional Debentures, if any, will be used by the Company to pay fees to other
parties, including the Placement Agent and its designees, and the Escrow Agent
on the terms provided in the Joint Escrow Instructions.
(ix) Other Buyers who have executed the Agreement (bearing the
same or any other date) may or may not purchase their Additional Debentures (and
if purchased, such purchase may be effected under conditions or procedures
different
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than those applicable to the undersigned Buyer) and no such action or failure to
act by such other Buyer shall affect the undersigned Buyer's decision to
purchase or the Company's issuance of the Additional Debentures. Such decision
is made independently by Buyer or with Buyer's own personal advisors other than
Xxxxxxx & Prager LLP.
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5. Except as specified above, (and then limited to the extent so
specified), the terms so specified, the terms and conditions of each of the
Securities Purchase Agreement and the other the Transaction Agreements remain in
full force and effect. Except to the extent specified in this paragraph all
other terms and conditions of Transaction Agreements remain in full force and
effect.
Ambient Corporation _________________________________________
[Name of Buyer]
__________________________
By: \s\ Xxxxx Xxxxxxxx By:
Its: Director Its:
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