Exhibit 10.07
Exhibit 10.07 Amending Agreement Between Xxxxxxxx.xxx Incorporated, Hot
Xxxxxx.Xxx Inc., and Xxxxx Xxxx, Xxxx Xxxxxxx and Xxx Xxxxx
AMENDING AGREEMENT
B E T W E E N:
XXXXXXXX.xxx INCORPORATED,
(herein the "Borrower")
-and-
HOT XXXXXX.XXX INC.
(herein "Hot Caller")
-and-
(herein the "Noteholder")
-and-
XXXXX XXXX, XXXX XXXXXXX and
XXX XXXXX
(herein the "Principals")
WHEREAS:
1. The Borrower, Hot Caller and the Noteholder entered into a joint Subscription
Agreement (herein the "Subscription Agreement") in or about the month of August,
1999;
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2. The Subscription Agreement provided inter alia that:
(i) the Noteholder advanced a certain loan to the Borrower which
loan was documented by an "8% unsecured convertible Promissory
Note" (herein the "Promissory Note") due July
31st, 2000;
(ii) the Promissory Note provided that the loan could be discharged
by "Conversion" at the option of the Noteholder in accordance
with the conversion provisions set forth therein;
(iii) each Noteholder would be entitled to a warrant entitling the
holder thereof to purchase one (1) share of the no-par value
common stock of Hot Caller, a corporation organized under The
Canada Business Corporations Act, at a certain purchase price
as set forth in the Subscription Agreement;
(iv) the Principals were entitled to certain warrants as set forth
in the Subscription Agreement.
3. The parties hereto wish to effect certain amendments to the Subscription
Agreement and the Promissory Note which amendments shall be effective as if made
on the date of execution of the Subscription Agreement by the parties and the
date of execution of the Promissory Note by the Borrower.
NOW THEREFORE in consideration of the premises and mutual agreements herein
contained and of other good and valuable consideration (the receipt and
sufficiency of which are acknowledged by each party) the parties agree with one
another as follows:
1. Confirmation:
1.1 The parties hereto confirm the truth and accuracy of the recitals set
forth herein.
2. Noteholder:
2.1 The Noteholder hereby confirms and agrees as follows:
(i) the Subscription Agreement shall be amended by deleting
therefrom any and all references to the entitlement to the
Noteholder of warrants of Hot Caller, as more specifically set
forth in Schedule "A" of the Subscription Agreement;
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(ii) the Noteholder shall not be entitled to receive warrants
and/or on subscription thereof, any common stock of Hot
Caller;
(iii) the Noteholder agrees to the amendments set forth in this
Agreement with respect to the Promissory Note and in
particular the conversion rights of the Noteholder and the
entitlements to common stock of the Borrower in the event of
conversion.
2.2 The Noteholder has had the benefit of independent legal representation
and enters into this Agreement freely, voluntarily and without any
duress or undue influence.
2.3 The Noteholder hereby nominates, constitutes and appoints the President
of the Borrower to execute any and all documents and do any and all
things necessary for and on behalf of the Noteholder to give effect to
the provisions of this Agreement.
2.4 The Noteholder upon execution of this Agreement hereby surrenders the
Promissory Note issued in consideration of the Borrower re-issuing a
Promissory Note incorporating the original loan and the amendments
herein.
3. Borrower/Hot Caller:
3.1 The Borrower and Hot Caller confirm and agree as follows:
(i) Hot Caller shall become a wholly owned subsidiary of the
Borrower and the Borrower shall own all of the common stock of
Hot Caller;
(ii) the Subscription Agreement shall be amended by deleting
therefrom any and all reference or entitlements to the
Noteholder of warrants to acquire common stock of Hot Caller
and in particular, Schedule "A" of the Subscription Agreement
shall be deleted in its entirety;
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(iii) the Subscription Agreement shall be read from the date of its
execution by the parties, as if no provision with respect to
Warrants of Hot Caller existed; and
(iv) the Promissory Note issued to the Noteholder by the Borrower
shall be amended by deleting therefrom the following
paragraph:
"2. CONVERSION. The outstanding principal amount of this Note and all
interest and other charges accrued hereunder may, at any time or from time to
time, be converted at the option of the Noteholder into fully paid,
nonassessable shares of Common Stock of the Borrower, $.001 par value per share
(the "Conversion Shares"), at price of Eighty Cents (US$0.80) per share (the
"Conversion Price"). If at the time of a conversion the Conversion Shares
issuable have not been registered under the U.S. Securities Act of 1933 as
amended ("Act"), the Conversion Shares issued shall be deemed restricted
securities and may not be resold or transferred except in accordance with the
provisions of Regulation S under the Act, upon registration under the Act, or
pursuant to an exemption from registration under the Act and in such event the
certificate(s) evidencing such Conversion Shares shall bear a customary form of
investment legend restricting transfer of the shares. Conversion shall be deemed
to occur on the date this Note is presented to the Company's Secretary with the
conversion form on the reverse side properly completed and signed. Upon any
conversion duly made of less than all sums owed under this Note, Borrower shall
execute a new Note of like tenor for the balance of the principal amount of this
Note and accrued interest and charges not converted and shall deliver such new
Note to Noteholder. Borrower shall bear all expenses and charges of issuing and
delivering the Conversion Shares."
And the paragraph so deleted shall be replaced with the following
provision which shall be incorporated into the Promissory Note and shall be
effective the date of issuance of the Promissory Note by the Borrower, and
being:
"2. CONVERSION. The outstanding principal amount of this Note and all
interest and other charges accrued hereunder may, at any time or from time to
time, be converted at the option of the Noteholder and/or the Borrower, into
fully paid, nonassessable shares of Common Stock of the Borrower, $.001 par
value per share (the "Conversion Shares"), at price of Forty Cents (US$0.40) per
share (the "Conversion Price"). If at the time of a conversion the Conversion
Shares issuable have not been registered under the U.S. Securities Act of 1933
as amended ("Act"), the Conversion
Shares issued shall be deemed restricted securities and may not be resold or
transferred except in accordance with the provisions of Regulation S under the
Act, upon registration under the Act, or pursuant to an exemption from
registration under the Act and in such event the certificate(s) evidencing such
Conversion Shares shall bear a customary form of investment legend restricting
transfer of the shares. Conversion shall be deemed to occur
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on the date this Note is presented to the Company's Secretary with the
conversion form on the reverse side properly completed and signed. Upon any
conversion duly made of less than all sums owed under this Note, Borrower shall
execute a new Note of like tenor for the balance of the principal amount of this
Note and accrued interest and charges not converted and shall deliver such new
Note to Noteholder. Borrower shall bear all expenses and charges of issuing and
delivering the Conversion Shares."
3.2 The Borrower hereby undertakes to re-issue a Promissory Note incorporating
the terms of the original loan as amended by this Agreement.
4. Principals
4.1 The parties hereto acknowledge that the Principals have the option to
acquire common shares of Hot Caller pursuant to the terms of the Subscription
Agreement. The principals hereby release any and all rights, claims or
entitlements to any compensation from, or common stock of Hot Caller.
5. Further Assurances
5.1 Each party agrees that upon the written request of any other party, it will
do all such acts and execute all such further documents, conveyances, deeds,
transfers and the like and will cause the doing of all such acts and will cause
the execution of all such further documents as are within its power to cause the
doing or execution of, as the other party may from time to time reasonably
request to be done, and/or executed as may be required to consummate the
transaction contemplated under this Agreement or as may be necessary or
desirable toe effect the purpose of this Agreement or any document, agreement or
instrument delivered under this Agreement and to carry out their provisions or
to better or more properly or fully evidence or give effect to the transaction
contemplated under this Agreement.
6. Assignment/Successos and Assigns
6.1 Neither this Agreement nor any rights or obligations under this agreement
shall be assignable by any party without the prior written consent of the other
parties. Subject to that condition, this Agreement shall enure to the benefit of
and be binding upon the parties and their respective heirs, executors,
administrators, successors and permitted assigns.
7. Applicable Law
7.1 This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable in the
Province of Ontario and as well in accordance with the laws of the United States
of America as the case may be.
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IN WITNESS WHEREOF the parties hereto have executed the within
Agreement this day of , 1999.
) XXXXXXXX.xxx INCORPORATED
) Per: ________________________
) Xxxxx Xxxx, A.S.O.
)
) HOT XXXXXX.XXX INC.
) Per: ________________________
) Xxxxx Xxxx, A.S.O.
)
------------------------------------ ) ------------------------------
as to the signature of ) Noteholder
)
------------------------------------ ) ------------------------------
as to the signature of Xxxxx Xxxx ) XXXXX XXXX
)
------------------------------------ ) ------------------------------
as to the signature of Xxxx Xxxxxxx ) XXXX XXXXXXX
)
------------------------------------ ) ------------------------------
as to the signature of Xxx Xxxxx ) XXX XXXXX
InnfHotCallerAmenAgr:mydocagr:jla
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