Exhibit 99.1
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EXECUTION COPY
AMENDMENT NO. 1
TO
SECURITIES PURCHASE AGREEMENT
This Amendment no. 1 to securities Purchase Agreement ("Amendment") is
entered into as of December 10, 2003 by and among BSD Medical Corporation, a
Delaware corporation (the "Company"), and each of the persons and entities
listed as purchasers on the signature pages hereto (the "Purchasers") and amends
the Securities Purchase Agreement dated November 28, 2003 (the "Purchase
Agreement") by and among the Company and the Purchasers. All capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to such
terms in the Purchase Agreement.
Recitals
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A. The Company has previously issued shares of its Common Stock to the
Purchasers pursuant to the terms and provisions set forth in the Purchase
Agreement.
B. Pursuant to Section 11.3 of the Purchase Agreement, the Purchase
Agreement may be amended upon the mutual written agreement of the Company and
the Purchasers.
C. The Company and the Purchasers desire to amend the Purchase
Agreement to allow for the issuance of additional shares of Common Stock to one
or more additional purchasers and otherwise amend the Purchase Agreement as
provided herein.
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. Amendment.
1.1 The "Recital" of the Purchase Agreement is hereby amended and
restated as follows:
The Company desires to issue and sell to Purchasers, and
Purchasers desire to purchase from the Company, an aggregate of up to 2,059,600
shares (the "Shares") of Common Stock, $0.001 par value per share (the "Common
Stock") at a price of $1.10 per Share (the "Per Share Purchase Price") and upon
and subject to the terms and conditions of this Agreement.
1.2 Section 2.1 of the Purchase Agreement is hereby amended and
restated as follows:
"2.1 The Closing. The purchase, sale and issuance of the
Shares shall take place at one or more closings (each of which is referred to in
this Agreement as a "Closing"). The initial Closing of the purchase and sale of
the Shares (the "Offering") occurred on November 28, 2003. Subsequent Closings
may take place at such times, places or earlier dates as is mutually agreed upon
by the Company and the Purchasers at such Closing. The date of each Closing is
referred to as the "Closing Date" for such Closing. The Company and any
Purchasers purchasing Shares in a subsequent Closing (that are not already
parties to this Agreement) will execute counterpart signature pages to this
Agreement, and such Purchasers will, upon delivery to the Company of such
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signature pages, become parties to, and bound by, this Agreement. At each
Closing, the Company will cause the transfer agent to issue and to deliver to
each Purchaser stock certificates representing the Shares purchased by the
Purchaser, against payment of the Purchaser's Purchase Price by wire transfer of
immediately available United States funds payable to the Company's account
pursuant to the wire transfer instructions set forth on Exhibit A, provided
that, if requested by the Purchaser, stock certificates representing the Shares
shall be delivered to such Purchaser's escrow agent prior to such Closing. The
Shares will be registered in the Purchaser's name or the name of the nominee of
the Purchaser pursuant to instructions delivered to the Company not less than
two business days prior to the such Closing Date, and certificates that are not
delivered prior to such Closing will be delivered to the Purchasers within three
business days after such Closing Date."
1.3 Section 2.2 of the Purchase Agreement is hereby amended and
restated as follows:
"2.2 Consideration to X.X. Xxxxxxx & Company, LLC. X.X.
Xxxxxxx & Company, LLC ("X.X. Xxxxxxx"), the placement agent for the Offering,
will receive from the Company at the last Closing or as promptly as reasonably
practicable thereafter (a) a cash payment in an amount equal to 5% of the
aggregate proceeds received by the Company from the Offering and (b) a warrant
to purchase 102,980 shares of the Company's Common Stock at an exercise price
per share of $1.80, which warrant will expire three years from November 28, 2003
and will be prepared in a form that is mutually agreed upon by the Company and
X.X. Xxxxxxx (the "Warrant"). In connection with the issuance of the Warrant,
X.X. Xxxxxxx will provide to the Company a certificate executed by an authorized
person in which it will make representations to the Company regarding the
issuance of the Warrant as reasonably requested by the Company.
2. Miscellaneous.
2.1 Enforceability of Purchase Agreement. Except as specifically set
forth herein, the terms and conditions of the Purchase Agreement shall remain
the same and are hereby confirmed and ratified by the parties hereto.
2.2 Governing Law. The terms and provisions hereof will be construed in
accordance with and governed by the laws of the State of Delaware without regard
to that State's conflicts of law principles.
2.3 Successors and Assigns. This Amendment will be binding upon and
inure to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns.
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2.4 Counterparts. This Amendment may be executed simultaneously in any
number of counterparts, each of which when so executed and delivered shall be
taken to be an original and all of which together shall constitute one document.
2.5 Entire Agreement. This Amendment, together with the Purchase
Agreement, sets forth the entire agreement and understanding among the parties
as to the subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature among them. Except as
explicitly amended by this Amendment, all of the terms and conditions of the
Purchase Agreement shall remain in full force and effect.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first written above.
COMPANY
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BSD MEDICAL CORPORATION
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: President
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PURCHASERS
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JMG TRITON OFFSHORE FUND, LTD.
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Member Manager of the Investment Manager
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JMG CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Member Manager of the GP
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BEAR XXXXXXX SECURITIES CORP., CUSTODIAN,
J. XXXXXX XXXXXXX XXX R/O II
By: /s/ J. Xxxxxx Xxxxxxx
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Name: J. Xxxxxx Xxxxxxx
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Title: Sole Beneficiary, self directed XXX
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[Signature Page to Amendment to Securities Purchase Agreement]
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