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SECURITIES HAVE NOT REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THIS AGREEMENT SHALL NOT CONSTITUTE AN
OFFER TO SELL NOR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE
SECURITIES ARE "RESTRICTED" AND MAY NOT BE RESOLD OR TRANSFERRED EXCEPT AS
PERMITTED UNDER THE ACT PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
AMENDMENT NO. 1 TO
7% PREFERRED STOCK
SECURITIES PURCHASE AGREEMENT
AND RELATED STOCK PURCHASE WARRANT
COMMODORE ENVIRONMENTAL SERVICES, INC.
AND
COMMODORE APPLIED TECHNOLOGIES, INC.
THIS AMENDMENT NO. 1 is made as of the 20th day of August,
1997, by and between COMMODORE ENVIRONMENTAL SERVICES, INC., traded on
the "Pinksheets" under the "COES' (the "Parent Company"), a
corporation, with its principal office at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, XX 00000, COMMODORE APPLIED TECHNOLOGIES INC., AMEX symbol "CXI"
(the "Subsidiary Company"), a corporation, with its principal office at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 and the undersigned (the
"Purchaser"), with its principal office at the address set forth below
the signature of the Purchaser on the signature page hereof.
Reference is made to the 7% Preferred Stock Securities
Purchase Agreement made as of the 14th day of August, 1997 (the "7%
Preferred Stock Securities Purchase Agreement") by and among the
parties hereto. All capitalized terms herein are defined as set forth
in the 7% Preferred Stock Securities Purchase Agreement or by reference
therein.
IN CONSIDERATION of the mutual covenants contained in this
Amendment, the Parent Company, Subsidiary Company and the Purchaser
agree as follows:
Section 1. Amendment of the Definition of the Term "Conversion
Price". Section 1 of the Agreement is hereby amended by deleting
therefrom in its entirety the definition of the term "Conversion Price"
and substituting therefor the following:
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"Conversion Price" means an amount equal to a fifteen (15%) percent
discount from either the lower of (i) the average of the low prices, or
(ii) the average of the closing bid prices of the CXI Common Stock as
reported by Bloomberg, L.P. ("Bloomberg") for the previous five (5)
business days ending on the day before the Conversion Date (the
"Average Closing Bid Price"); provided, however, if the Average Closing
Bid Price of the CXI Common Stock, as reported by Bloomberg , for any
consecutive thirty (30) days (such thirtieth day shall be the "First
Trigger Date") is equal to or less than $2.00 (the "Floor Average"),
the conversion price shall equal $2.00; if the Floor Average for any
consecutive thirty (30) days beginning any day after the First Trigger
Date is less than $2.00 ("Second Trigger Date"), the conversion price
shall equal $1.90; if the Floor Average for any thirty (30) days
beginning any day after the Second Trigger Date is less than $1.90 (the
"Third Trigger Date"), the conversion price shall equal $1.80; if the
Floor Average for any consecutive thirty (30) days beginning any day
after the Third Trigger Date is less than $1.80 (the "Fourth Trigger
Date"), the conversion price shall equal $1.70; if the Floor Average
for any consecutive thirty (30) days beginning any day after the Fourth
Trigger Date is less than $1.70 (the "Fifth Trigger Date"), the
conversion price shall equal $1.60; if the Floor Average for any
consecutive thirty (30) days beginning any day after the Fifth Trigger
Date is less than $1.60, the conversion price shall equal $1.50.
Subject to Section 11.5 herein, in no event shall the Conversion Price
be lower than $1.50 per share of CXI Common Stock. If the CXI Common
Stock is not traded on the American Stock Exchange, the Average Closing
Bid Price shall be the average closing bid price (and if not available,
the mean of the high and low prices) of the Common Stock on the
over-the -counter-market or the principal national securities exchange
or the Nasdaq National Market System or Nasdaq SmallCap Market System
on which the CXI Common Stock is traded for the previous five (5)
business days ending on the day before the Conversion Date.
The Conversion Price shall be equitably adjusted accordingly on a pro
rata basis in the event of the happening of certain events that would
affect the CXI Common Stock or COES Convertible Preferred Stock's value
including, but not limited to, forward and reverse stock splits,
issuance of stock dividends, subdivision of shares, combinations,
reclassifications, or the like (collectively "Reclassifications"). An
adjustment made pursuant to this section shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such an event."
Section 2. Miscellaneous.
2.1 Headings. The headings of the various sections of this
Amendment have been inserted for convenience of reference only and shall not be
deemed to be part of this Amendment.
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2.2 Counterparts/Facsimile. This Amendment may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one instrument, and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other party. In lieu of the original, a facsimile
transmission copy of the original shall be as effective and enforceable as the
original.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their duly authorized representatives the day and year
first above written.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By /s/ Xxxx X. Xxxxxxxxx
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COMMODORE APPLIED TECHNOLOGIES, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
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Purchaser: EDJ LIMITED
By /s/
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Name:
Title:
Purchaser's Address: Deltec Panamerica Trust Company
Deltec House
Xxxxx Xxx
Box N-3229
Nassau, Bahamas
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their duly authorized representatives the day and year
first above written.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By
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COMMODORE APPLIED TECHNOLOGIES, INC.
By
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Purchaser: XXXXXX PARTNERS, L.P.
By /s/
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Name:
Title:
Purchaser's Address: c/x Xxxxxx Capital Management
000 Xxxxxxxxx
Xxxxx 000X
Xxxx Xxxxxx, Xxxxxxxxxx 00000
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their duly authorized representatives the day and year
first above written.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By
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COMMODORE APPLIED TECHNOLOGIES, INC.
By
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Purchaser: ELARA LTD.
By /s/
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Name:
Title:
Purchaser's Address: P.O. Box 438
Tropic Isle Building
Wickhams Cay
Road Town, Tortolla
British Virgin Islands
