AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
Exhibit 10.4
Execution Version
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
This AMENDMENT NO. 1 (this “Amendment”), dated as of October 25, 2019, by and between XxXxxxxxx International, Inc., a corporation organized under the laws of the Republic of Panama, and the parties specified on the signature pages hereto, constitutes an amendment to that certain Securities Purchase Agreement, dated as of October 30, 2018 (the “Securities Purchase Agreement”), between the Company and the parties thereto. Capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to such terms in the Securities Purchase Agreement.
WHEREAS, Section 8.04 of the Securities Purchase Agreement provides that the Company and the parties thereto may amend, subject to certain conditions provided therein, the Securities Purchase Agreement; and
WHEREAS, the Company and certain parties to the Securities Purchase Agreement desire to amend the Securities Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree to amend the Securities Purchase Agreement as set forth herein.
ARTICLE I
AMENDMENTS
Section 1.01 Amendment of Securities Purchase Agreement. The Securities Purchase Agreement is hereby amended by deleting Section 5.02(a) and Section 5.02(b) thereof and the cross-references to such provisions therein and replacing each such deleted section with “[reserved].”
ARTICLE II
MISCELLANEOUS
Section 2.01 Severability. Any provision of this Amendment that is invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without invalidating the remaining provisions hereof or affecting or impairing the validity or enforceability of such provision in any other jurisdiction.
Section 2.02 Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to any principles of conflicts of laws thereof that would result in the application of the laws of any other jurisdiction, except to the extent that the New York conflicts of laws principles would apply applicable laws of the Republic of Panama to internal matters relating to corporations organized thereunder). The Company and the Purchasers each hereby irrevocably and unconditionally:
(a) submits for itself in any legal action or proceeding relating solely to this Amendment to the exclusive jurisdiction of the courts of the State of New York and the Federal courts of the United States of America, in each case located within the Southern District of New York, and appellate courts thereof;
(b) consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same to the extent permitted by applicable law;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the party, as the case may be, at its address set forth in Section 3.02 of the Securities Purchase Agreement or at such other address of which the other party shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by applicable law or shall limit the right to xxx in any other jurisdiction for recognition and enforcement of any judgment or if jurisdiction in the courts referenced in the foregoing clause (a) are not available despite the intentions of the parties hereto;
(e) agrees that final judgment in any such suit, action or proceeding brought in such a court may be enforced in the courts of any jurisdiction to which such party is subject by a suit upon such judgment, provided that service of process is effected upon such party in the manner specified herein or as otherwise permitted by applicable law;
(f) agrees that to the extent that such party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process with respect to itself or its property, such party hereby irrevocably waives such immunity in respect of its obligations under this Amendment to the extent permitted by applicable law; and
(g) IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN RELATION TO THIS AMENDMENT.
Section 2.03 Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or .pdf attachment to electronic mail shall be effective as delivery of a manually executed counterpart to this Amendment.
Section 2.04 Headings. The headings of the Articles and Sections of this Amendment have been inserted for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
Section 2.05 Entire Agreement. The Securities Purchase Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated. Except as expressly amended by the terms of this Amendment, the Securities Purchase Agreement shall remain in full force and effect, and nothing herein shall be deemed to constitute a waiver of any provision of the Securities Purchase Agreement.
[Signatures follow on next page]
2
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be duly executed as of the date first above written.
| XXXXXXXXX INTERNATIONAL, INC. | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Executive Vice President and Chief Financial Officer | |
| WEST STREET CAPITAL PARTNERS VII OFFSHORE INVESTMENTS, L.P. | ||
| By: Xxxxxxx Sachs & Co. LLC, Duly Authorized Agent of the General Partner | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Managing Director | |
Signature Page to Amendment No. 1 to Securities Purchase Agreement
