EXHIBIT 10
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AMENDMENT NO. 1 TO
AMENDED AND RESTATED
EQUITY LINE FINANCING AGREEMENT
BETWEEN
COMPUTER MOTION, INC.
AND
SOCIETE GENERALE
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THIS AMENDMENT NO. 1, dated as of January 3, 2002, to the AMENDED AND
RESTATED EQUITY LINE FINANCING AGREEMENT, dated as of September 20, 2001,
between COMPUTER MOTION, INC., a Delaware corporation (the "Company"), and
SOCIETE GENERALE, a bank organized under the laws of France (the "Investor").
W I T N E S S E T H:
WHEREAS, the Company and the Investor entered into the Equity Line
Financing Agreement on March 30, 2001 and the Amended and Restated Equity Line
Financing Agreement on September 20, 2001, and have agreed further to amend the
agreement in order to reflect the intent of the parties on the date the Equity
Line Financing Agreement was originally entered into by correcting a drafting
error contained in the definition of "Maximum Draw Down Amount."
NOW THEREFORE, in consideration of the premises, representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, intending to be legally bound hereby, the Company and the Investor
agree as follows:
ARTICLE I DEFINITIONS
SECTION 1 AMENDMENT. The definition of "Maximum Draw Down Amount"
shall be amended in its entirety to read as follows:
"Maximum Draw Down Amount" with respect to any Draw Down effected by
the Company in accordance with Section 2.03 hereof shall mean the lesser of (i)
$250,000 (subject to increase to (I) $500,000 in the event the average VWAP for
the Common Stock for each of the five Trading Days immediately preceding the
applicable Draw Down Date, multiplied by the Average Daily Trading Volume of the
Common Stock applicable with respect to such Draw Down Date shall exceed
$750,000 or (II) $800,000 in the event the average VWAP for the Common Stock for
each of the five Trading Days immediately preceding the applicable Draw Down
Date, multiplied by the Average Daily Trading Volume of the Common Stock
applicable with respect to such Draw Down Date shall exceed $1,250,000 and (ii)
10% of the product of (x) the average VWAP for the Common Stock for each of the
five Trading Days immediately preceding the applicable Draw Down Date,
multiplied by (y) the Average Daily Trading Volume of the Common Stock
applicable with respect to such Draw Down Date, multiplied by (z) 5.
SECTION 2 ENTIRE AGREEMENT. The Amended and Restated Equity Line
Financing Agreement as amended by this Amendment No. 1 (together with the other
Transaction Documents (as such term is defined in the Amended and Restated
Equity Line Financing Agreement) and all other documents delivered pursuant
hereto and thereto) constitutes the entire agreement of the parties with respect
to the subject matter thereof and supersedes all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written, with respect to the subject matter
thereof.
SECTION 3 TITLES AND HEADINGS. Titles, captions and headings of the
sections hereof are for convenience of reference only and shall not affect the
construction of any provision.
SECTION 4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
INTERPRETED UNDER, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE
STATE OF NEW
YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION 5 COUNTERPARTS. This Amendment No. 1 to the Amended and
Restated Equity Line Financing Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Investor have caused this
Amendment No. 1 to the Amended and Restated Equity Line Financing Agreement to
be executed by the undersigned, thereunto duly authorized, as of the date first
set forth above.
COMPUTER MOTION, INC.
By: /S/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Acting Chief Financial Officer
SOCIETE GENERALE
By: /S/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Director
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