AMENDMENT NO. 1 TO SERIES F PREFERRED STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1 TO SERIES F PREFERRED STOCK PURCHASE AGREEMENT, dated as of
June 19, 2001 ( "Amendment"), by and among NEW WORLD COFFEE - MANHATTAN BAGEL,
INC., a Delaware corporation (the "Company"), and Xxxxxxx Xxxxx III, L.P.
("Xxxxxxx Xxxxx"), amending the Series F Preferred Stock Purchase Agreement,
dated as of June 7, 2001 (the "Original Purchase Agreement"), among the Company
and Xxxxxxx Xxxxx.
WHEREAS, the Company and certain purchasers (the "Series F Purchasers")
have entered into a Third Series F Preferred Stock and Warrant Purchase
Agreement dated as of June 19, 2001 (the "Third Purchase Agreement"), pursuant
to which the Series F Purchasers will purchase from the Company an additional
25,000 shares of Series F Preferred Stock, $.001 par value, of the Company and
warrants to purchase shares of Common Stock of the Company in the form attached
to the Third Purchase Agreement;
WHEREAS, the Company and Xxxxxxx Xxxxx deem it in their best interests to
amend the provisions of the Original Purchase Agreement, and the Company and
Xxxxxxx Xxxxx are willing to amend the Original Purchase Agreement as provided
herein; and
WHEREAS, as an inducement to the Series F Purchasers to consummate the
transactions contemplated by the Third Purchase Agreement, the Company and
Xxxxxxx Xxxxx have agreed to enter into this Amendment;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Section 9.1(c) of the Original Purchase Agreement is hereby amended and
restated in its entirety as follows:
"(c) WARRANTS.
(i) ISSUANCE OF WARRANTS. On or before June 19, 2001, the Company will
issue to the Purchaser a Warrant to purchase up to 3,384,629 shares
(representing, in the aggregate, 4.50% of the Fully Diluted Common Stock of the
Company as of June 20, 2001, subject to adjustment as provided therein) (the
"Original Warrant Shares") of the Company's Common Stock exercisable at $0.01
per share (the "Warrant"), which Warrant will be substantially in the form of
the Warrant attached hereto as EXHIBIT B. The term "Fully Diluted" shall mean
the fully diluted Common Stock of the Company, determined by taking into account
all options, warrants and other convertible securities, but not including any
warrants or options with a strike price greater than $3.00 per share and not
including any of the Warrants issued under Section (9.1(c)(ii)). For purposes of
this Section 9.1(c)(i), the number of shares subject to such Warrant shall be
calculated to result in such percentages of Fully Diluted Common Stock after the
issuance of such Warrant.
(ii) WARRANT STEP-UP. If within one year following the Closing Date, (i)
the Company has not redeemed the Shares or (ii) the Company has redeemed the
Shares by the issuance of the Notes (as provided in the Certificate of
Designation) attached hereto as EXHIBIT C (the "Notes") but has not paid such
Notes in full, the Company will issue, on such first anniversary date and on
each June 30 and December 31 following such first anniversary of the Closing
Date, to the Purchaser warrants in the form of EXHIBIT B hereto representing an
additional 0.30% of the Fully Diluted Common Stock of the Company outstanding on
such date, which percentage shall be reduced pro rata based upon Shares
theretofore redeemed for cash or the Notes theretofore repaid, as applicable.
For purposes of this Section 9.1(c)(ii), at the time of each such issuance of
Warrants, the number of shares subject to such Warrants shall be calculated to
result in the applicable percentage of Fully Diluted Common Stock before such
issuance of Warrants. The issuance of any additional warrants pursuant to this
Section 9.1(c)(ii) shall be treated as an adjustment to the purchase price of
the Shares."
2. Section 8 of the Original Purchase Agreement is hereby amended by adding
a new clause (d) which shall read in its entirety as follows:
"(d) On or prior to the earlier of October 17, 2001 and a Change of Control
Event (as defined in the Certificate of Designation), the Company shall file an
amendment to its Certificate of Incorporation to increase the number of shares
of authorized shares of Common Stock to at least 125,000,000."
3. The form of Warrant attached as Exhibit B to the Original Purchase
Agreement is hereby amended by deleting the form of Warrant in its entirety and
replacing it with a new form of Warrant, a copy of which is attached hereto.
4. The Original Purchase Agreement, as amended by this Amendment, is hereby
in all respects confirmed and each of the parties hereto acknowledges and agrees
that it is bound by all the terms and provisions thereof, as amended hereby.
5. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to conflict of laws
principles.
6. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. i.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as a sealed instrument, all as of the day and year first above written.
NEW WORLD COFFEE - MANHATTAN
BAGEL, INC.
By /s/______________________________
Name:
Title:
XXXXXXX XXXXX III, L.P.
By /s/______________________________
Name:
Title:
