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AMENDMENT NO. 1
TO
COMMON STOCK PURCHASE AGREEMENT
DATED AS OF AUGUST 18, 2000
BETWEEN
XXXXXXXXXXXXXXX.XXX
AND
TORNEAUX LTD.
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AMENDMENT NO. 1, dated as of August 18, 2000 (this
"Amendment"), between XxXxxxxxXxxxxxx.xxx, a Delaware corporation (the
"Company") and Torneaux Ltd., a company organized under the laws of the
Commonwealth of The Bahamas (the "Purchaser"), to the Common Stock Purchase
Agreement ( the "Purchase Agreement"), dated as of June 6, 2000 between the
Company and the Purchaser.
W I T N E S S E T H :
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WHEREAS, the Purchase Agreement provides for the issuance and
sale by the Company to the Purchaser of shares of the Company's common stock,
par value $0.001 (the "Common Stock"), pursuant to certain Draw Downs (as
defined therein) as provided therein; and
WHEREAS, the parties now wish to amend the Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants contained herein, the parties hereby agree as follows:
Section 1. Amendments to the Purchase Agreement.
1.1. Section 3.2 of the Purchase Agreement is hereby
amended by adding the following Section 3.2(i):
"Ten Percent Limitation. On each Settlement Date,
the number of Shares then to be purchased by the Purchaser shall not exceed the
number of such shares that, when aggregated with all other shares of Common
Stock then owned by the Purchaser beneficially or deemed beneficially owned by
the Purchaser, would result in the Purchaser owning more than 9.9% of all of
such Common Stock as would be outstanding on such Settlement Date, as determined
in accordance with Section 16 of the Exchange Act and the regulations
promulgated thereunder. For purposes of this Section 3.2(i), in the event that
the amount of Common Stock outstanding as determined in accordance with Section
16 of the Exchange Act and the regulations promulgated thereunder is greater on
a Settlement Date than on the date upon which the Draw Down Notice associated
with such Settlement Date is given, the amount of Common Stock outstanding on
such Settlement Date shall govern for purposes of determining whether the
Purchaser, when aggregating all purchases of Common Stock made pursuant to this
Agreement would own more than 9.9% of the Common Stock following such Settlement
Date."
1.2. Section 5.3(g) of the Purchase Agreement is hereby
amended by deleting the section in its entirety and substituting, in lieu
thereof, the following:
"(g) Material Adverse Effect. No Material
Adverse Effect shall have occurred."
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1.3. Section 5.3(h) of the Purchase Agreement is hereby
amended by deleting the section in its entirety and substituting, in lieu
thereof, the following:
"(h) Intentionally Omitted."
1.4. Section 8.2 of the Purchase Agreement is hereby
amended by deleting the section in its entirety and substituting, in lieu
thereof, the following:
"Section 8.2. Other Termination. The Purchaser may
terminate this Agreement upon one (1) day's notice if (i) an
event resulting in a Material Adverse Effect has occurred,
(ii) there shall occur any stop order or suspension of the
effectiveness of the Registration Statement for an aggregate
of five (5) trading days during the Investment Period, for any
reason other than deferrals or suspension during a blackout
period as a result of corporate developments subsequent to the
Closing Date that would require such Registration Statement to
be amended to reflect such event in order to maintain its
compliance with the disclosure requirements of the Securities
Act pursuant to Section 4.10 herein, or (iii) the Company
shall at any time fail to comply with the requirements of
Sections 4.2, 4.3 or 4.4 hereof. This Agreement shall
terminate immediately upon the occurrence of (i) an Other
Financing without the Purchaser's prior written consent, (ii)
a Material Change in Ownership or (iii) the Purchaser shall
fail to comply with Section 3.2(i); provided, however, that if
a Terminating Event occurs during a Draw Down Pricing Period,
this Agreement shall terminate on the final Settlement Date
for such Draw Down Pricing Period."
Section 2. Miscellaneous.
2.1. Limited Effect. Except as expressly amended and
modified by this Amendment, all of the provisions and covenants of the Purchase
Agreement are and shall continue to remain in full force and effect in
accordance with the terms thereof.
2.2. Counterparts. This Amendment may be executed by one
or more of the parties hereto in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
2.3. Governing law. This Amendment shall be governed by
and construed in accordance with the internal laws of the State of New York,
without giving effect to the choice of law provisions.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective authorized officers as of the date
first above written.
XXXXXXXXXXXXXXX.XXX
By:/s/ Xxx Xxxxxxxxxx
Name:Xxx Xxxxxxxxxx
Title:Chief Executive Officer
TORNEAUX LTD.
By:/s/ Xxxx Xxxxx Xxxx
Name:Xxxx Xxxxx Xxxx
Title:Director
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