SECOND AMENDMENT TO CONVERTIBLE DEBENTURE
SECOND
AMENDMENT TO
THIS
SECOND AMENDMENT TO CONVERTIBLE DEBENTURE (this “Second Amendment”), dated as
of November 13, 2010, is entered into by and between American Xxxxx-Xxxxxx,
Inc., a Nevada corporation (the “Company”) and Maxum Overseas
Fund (the “Purchaser”).
RECITALS
WHEREAS, the Company and
Purchaser entered into that certain Debenture and Warrant Purchase Agreement,
and the related Convertible Debenture (the “Debenture”), each dated as of
May 17, 2010, as amended, pursuant to which the parties agreed, among other
things, for the Purchaser to loan up to $1,500,000 (the “Loan Amount”) to the Company
subject to the terms and conditions set forth in the Debenture.
WHEREAS, the Company and
Purchaser now desire to reduce the conversion price of the Debenture and to
otherwise modify the Debenture as provided herein.
NOW, THEREFORE, in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
AGREEMENT
1. Reduction in Conversion
Price. Section 3.1 of the Debenture is hereby amended and
restated to read in its entirety as set forth below:
“Conversion at Holder’s
Election. At any time prior to the Repayment Date, Holder at
its option and upon prior written notice to the Company, may convert in whole or
in part the then outstanding Principal and accrued but unpaid interest thereon
(the “Debt”) into shares
of common stock of the Company at the then applicable Conversion Price (as
defined below). The “Conversion Price” shall
initially be $0.25, but shall be subject to adjustment as set forth in Sections 3.3 and
3.4 below and
for any stock dividends, combinations, splits, recapitalizations and the like
after the date hereof. The form of this Debenture need not be changed
because of any adjustment in the Conversion Price or in the number of shares of
common stock issuable upon its conversion. Notwithstanding the
foregoing, the number of shares of
Company common stock that may be acquired by the Holder upon any conversion of
the Debt shall be limited to the extent necessary to ensure that, following such
conversion, the total number of shares of Company common stock then beneficially
owned by the Holder and its affiliates and any other persons whose beneficial
ownership of Company common stock would be aggregated with the Holder’s for
purposes of Section 13(d) of the Exchange Act, does not exceed 4.999% of the
total number of issued and outstanding shares of Company common stock (including
for such purpose the shares of Company common stock issuable upon such
conversion). For such purposes, beneficial ownership shall be
determined in accordance with Section 13(d) of the Exchange Act and the rules
and regulations thereunder. Notwithstanding the foregoing, the
Holder may waive such limitation on conversion contained in this Section
3.1 or increase or decrease
such limitation percentage to any other percentage as specified in a written
notice to the
Company.”
2. Effect on Debenture. Except as
specifically amended and modified by this Second Amendment, all terms,
conditions, covenants and agreements set forth in the Debenture shall remain in
full force and effect.
3. Governing Law. This
Second Amendment shall be governed by the laws of the State of Nevada applicable
to contracts between Nevada residents wholly performed in Nevada.
4. Counterparts. This
Second 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 one agreement.
[Signature
Page Follows]
IN WITNESS WHEREOF, the
parties have executed and delivered this Second Amendment as of the date and
year first written above.
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COMPANY:
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American
Xxxxx-Xxxxxx, Inc.
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a
Nevada corporation
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By:
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/s/ Xxxxxx XxXxxxxx
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Xxxxxx
XxXxxxxx
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Chief
Executive Officer
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PURCHASER:
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Maxum
Overseas Fund
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By:
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/s/ Xxxxxxx Xxxxx
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Xxxxxxx
Xxxxx
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Portfolio
Manager
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