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EXHIBIT 10.26
FIRST AMENDMENT TO PLACEMENT AGREEMENT
This First Amendment to Placement Agreement (this "Amendment") dated as
of the 20th day of May, 1996 is entered into between Xxxxxxx Capital Partners,
L.P., a Delaware limited partnership ("Placement Agent") and Xxxxxx
Communications Corp., a corporation organized under the laws of the Yukon
Territory, Canada (the "Company").
RECITALS
A. The Placement Agent and the Company entered into a Placement
Agreement dated as of April 16, 1996 (the "Placement Agreement"), pursuant to
which the Company engaged Placement Agent and Placement Agent agreed to act as
agent for the Company in connection with a private placement of securities
through the sale of shares of common stock of the Company and warrants
exercisable into shares of common stock of the Company.
B. The Placement Agent and the Company desire to amend the Placement
Agreement upon the terms and conditions set forth in this Amendment.
In consideration of the above recitals and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged by
each party, the Placement Agent and the Company agree as follows:
1. Defined Terms. Unless otherwise specified herein, any
capitalized terms defined in the Placement Agreement shall have the respective
meanings ascribed to such terms in the Placement Agreement.
2. Termination. With respect to Section 10 in the Placement
Agreement, if any of the conditions specified in Section 8 have not been
fulfilled or a consummation of the sale of the shares of common stock of the
Company and/or warrants exercisable into shares of common stock of the Company
has not occurred by the later of (a) 14 days after the upcoming shareholder
meeting is held and (b) 120 days from the date of the Placement Agreement,
either party may terminate the Placement Agreement upon 30 days prior written
notice to the other party.
3. Placement Agent Fee. Any issuances of Common Stock of the
Company to certain pre-existing creditors and/or to counsel of the Company in
exchange for no more than $600,000 in debt shall not constitute a sale of
Investor Units or other securities in a private transaction for purposes of
determining both the cash portion and the warrant amount constituting the
Placement Agent's fee.
4. Placement Agent Expenses. With respect to the reimbursement
of Placement Agent's expenses, the Company shall pay (a) all out-of-pocket
expenses reasonably incurred by Placement Agent in connection with its
performance under the Placement Agreement, but not to exceed $50,000 without the
written consent of the Company and (b) an
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advance of an additional $20,000 concurrent with the execution of this Amendment
against such expenses.
5. Representations and Warranties. The Company reaffirms that
the representations and warranties made to Placement Agent in the Placement
Agreement are true and correct in all material respects as of the date of this
Amendment as though made on the date hereof.
6. Regulation D. Placement Agent acknowledges and agrees that
the offer and sale of the Investor Units is being made in reliance upon the
exemption from the registration requirements of Section 5 of the Securities Act
of 1933 provided by Regulation D and other administrative rules and regulations
interpreting Section 4(2) of the Securities Act of 1933 and the exemptive
provisions of applicable securities laws. Placement Agent agrees not to violate
Rule 502(c) prohibiting the use of general solicitation or general advertising
in connection herewith.
7. Continuing Effect. Other than as set forth in this
Amendment, the Placement Agreement remains in full force and effect and is
hereby ratified and confirmed.
8. References. Upon the execution of this Amendment by both of
the parties hereto, all references in any document executed in connection with
the Financing to the "Placement Agreement", "hereunder", "thereunder", "hereof",
"thereof" or other similar reference to the Placement Agreement shall mean and
be a reference to the Placement Agreement, as amended by this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first written above.
XXXXXXX CAPITAL PARTNERS, L.P., A DELAWARE
LIMITED PARTNERSHIP
BY: XXXXXXX CAPITAL GROUP, INC., A MICHIGAN
CORPORATION, ITS GENERAL PARTNER
BY: /S/ XXXXXXX X. XXXXX
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NAME: XXXXXXX X. XXXXX
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ITS: PRESIDENT
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XXXXXX COMMUNICATIONS CORP., A CORPORATION
ORGANIZED UNDER THE LAWS OF THE YUKON TERRITORY,
CANADA
BY: /S/ XXXXXX XXXXXX
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NAME: XXXXXX XXXXXX
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ITS: CORPORATE SECRETARY
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