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EXHIBIT 10.28
AMENDMENT NUMBER 2 TO PLACEMENT AGENT AGREEMENT
This Amendment Number 2 to Placement Agent Agreement, is entered into
between Legacy Brands, Inc., a California corporation, (the "Company") and
Capitol Bay Securities (the "Placement Agent") as of November 27, 1997, with
respect to the following facts.
The Company retained the Placement Agent to assist the Company in
raising financing through a private placement of Common Stock in June
1997. The terms and conditions under which the Placement Agent conducted
the offering were set forth in a Placement Agent Agreement, dated June
25, 1997. which was amended on August 27, 1997 (the "Placement Agent
Agreement"). The private placement was terminated on November 27. 1997.
The parties wish to make certain amendments to the Placement Agent
Agreement, which are described below.
IN VIEW OF THE FOREGOING FACTS, and for good and valuable consideration, receipt
of which is duly acknowledged, the parties agree as follows:
1. Acknowledgment of Agreement. The parties hereby acknowledge that the
Placement Agent Agreement and the amendment to the Placement Agent Agreement,
were valid and binding obligations of the parties, and were effective as of the
date set forth on such agreements.
2. Nominee on Board of Directors. The Parties agree to eliminate the
requirement in the Placement Agent Agreement that the Company shall cause one
nominee of the Placement Agent to be elected to the Company's Board of
Directors, but wish to continue to allow the Placement Agent the right to have
one representative (the "Observer") attend Board of Directors' meetings as a
non-voting observer only. To carry out the intent of the parties, the parties
agree to amend paragraph 4a of the Placement Agent Agreement as follows:
a. The first two sentences and the penultimate sentence of
paragraph 4a of the Placement Agent Agreement are eliminated.
b. The Parties hereby agree that the Placement Agent's right to
have the Observer attend Board of Directors' meetings shall extend for a period
of three years after the date of this Amendment Number 2 to the Placement Agent
Agreement.
c. The Company shall pay the Observer the same amount of
compensation, under the same terms, as the Company pays each nonemployee
director from time to time for serving as a member of the Board of Directors of
the Company.
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d. The period during which the Placement Agent may be allowed to
have an Observer attend meetings of the Board of Directors of the Company may be
extended by the mutual written consent of the Company and the Placement Agent.
Nothing in this Amendment Number 2 to the Placement Agent Agreement shall create
any obligation of either party to agree to any extension of those periods.
3. Warrants/Shares. Paragraph 12 of the Placement Agent Agreement is hereby
eliminated. In lieu of granting warrants to the Placement Agent pursuant to that
provision, the Company hereby agrees to grant the Placement Agent: (i) a warrant
to purchase up to 148,000 shares of Common Stock of the Company; and (ii) 46,000
shares of the Common Stock of the Company pursuant to the terms of a warrant and
share purchase agreement in the form attached hereto as Exhibit A (the "Warrant
Purchase Agreement") and;
4. Registration Rights. Paragraph 15 of the Placement Agent Agreement is
hereby eliminated. The registration rights with respect to the warrants to be
issued to the Placement Agent shall be as set forth in the Warrant Purchase
Agreement.
5. Elimination of Right of First Refusal. Section 16 of the Placement Agent
Agreement is hereby eliminated.
6. Elimination of Investment Banker Services. Paragraph 17 of the Placement
Agent Agreement is hereby eliminated.
7. Indemnification. Paragraph 8 of the Placement Agent Agreement is hereby
amended by inserting the following as a new subparagraph "d" to Paragraph 8.
"d. The parties understand that Xxxxxxx Xxxxxxxx. the former
President and Chief Executive Officer of the Company ("Xxxxxxxx"), has
filed suit against the Company in the State of California, County of San
Francisco. Each party to this Agreement agrees to indemnify, defend and
hold the, other party harmless from and against all claims, costs,
liabilities and damages which the other party may incur in connection
with the suit brought by Xxxxxxxx, or any related claim or suit which
Xxxxxxxx may bring, if such claims, costs, liabilities or damages
resulted from any willful grossly negligent or negligent action of that
party or any omission by that party which constitutes willful
misconduct, gross negligence or negligence by that party."
8. Rights to Receipt of Compensation. Except for the payments to be made to
the Observer pursuant to Paragraph 2(c) of this Amendment, or for payments
required to indemnify the Placement Agent as provided in the Placement Agent
Agreement, as amended, Capitol Bay (on behalf of itself and its directors,
officers, shareholders and principals) waive all rights which it has or may have
for payment of any form of compensation or reimbursement of expenses by the
Company under the Placement Agent Agreement or pursuant to any other agreement
or arrangement between the parties.
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9. Effect of Amendment. This Amendment amends but does not supersede the
terms of the placement Agent Agreement, except as expressly set forth herein.
All other terms and conditions of the placement Agent Agreement shall remain in
full force and effect, other than those terms which expired on the termination
of the private placement.
10. Counterparts. This Amendment may be executed in counterparts (including
facsimile copies), each counterpart of which will be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 to Placement
Agent Agreement as of the date first above written.
LEGACY BRANDS, INC. CAPITOL BAY SECURITIES
/s/ Xxxxxx X. Xxxx, President /s/ Xxxxxxx X. Xxxxxxx, President
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Xxxxxx X. Xxxx, President Xxxxxxx X. Xxxxxxx, President
/s/ Xxxxx X. Xxxxxxxx, /s/ [SIG]
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Xxxxx X. Xxxxxxxx, Secretary [not legible], Secretary
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EXHIBIT A
WARRANT PURCHASE AGREEMENT
