EXHIBIT 10.2
AMENDMENT TO AGENCY AGREEMENT
This amendment dated November 15, 2001 (the "Amendment") to the Agency
Agreement dated as of July 27, 2001 (the "Agreement"), is made by and between
Commonwealth Associates, L.P., and Infowave Software, Inc. Capitalized terms
used in this Amendment shall have the same meanings set forth in the Agreement,
except as otherwise set forth herein.
WHEREAS, the parties hereto wish to amend the terms of the Agreement to
reflect a modification to the pricing terms of the Placement, an extension to
the Offering Period and certain other changes.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definition of Closing Price. The definition of "Closing Price" in the first
paragraph of the Agreement is hereby deleted and replaced with the
following definition:
The "Closing Price" shall be equal to the lower of (a) Cdn. $0.69 and (b)
85% of the weighted average of the trading prices of the Company's common shares
on the TSE for the five trading days ending on the business day preceding the
date of the Initial Closing.
2. Extension of Offering Period. The last sentence of Section 1(a) of the
Agreement is hereby deleted in its entirety and replaced with the
following:
The offering period for the Placement (the "Offering Period") shall
commence on the date the Memorandum is delivered to the Placement Agent and
shall continue until December 14, 2001 (the "Termination Date").
3. Closing Conditions. Section 3(b) of the Agreement is hereby amended by
adding the following new subsection (xii):
(xii) Xxxx Agreements. Xxxxxx Xxxx shall have subscribed for at least
$1,000,000 of Special Warrants in the Placement through the conversion of at
least $1,000,000 of outstanding indebtedness under Xx. Xxxx'x existing credit
facility (the "Facility"). The Facility shall be amended to provide for a
three-year, non-convertible, non-revolving secured loan in the amount of up to
US$3,000,000, but in any case representing the net of $12,000,000 less the
amount of the Placement (the "Xxxx Loan") bearing interest at the United States
prime rate (as reported by Bloomberg) plus two percent, payable annually, and
shall otherwise be acceptable to the Placement Agent. The Xxxx Loan shall be
subordinate to any current or future bank debt or strategic investment in the
Company and may be prepaid to the extent of (a) 33% of the first $3,000,000 of
gross proceeds of future equity financings by the Company and 50% of any
additional amounts, provided such financings involve the issuance of common
stock only at a price greater than the Closing Price and on terms no more
favorable than the Offering and (b) 100% of payments from Technology
Partnerships Canada. The terms of the Xxxx Loan may not be amended without the
approval of all of the members of the Finance Committee (as defined in Section
4(m) hereof) other than Xx. Xxxx.
4. Board of Directors. Section 4(h) of the Agreement is hereby deleted in its
entirety and replaced with the following:
(h) Board Composition, Meetings and Compensation. Until such time as
Commonwealth and the Commonwealth Investors ceases to beneficially own at least
10% of the Company's common shares issued and outstanding from time to time
(assuming exercise of the Special Warrants but not exercise of the Warrants),
the Company shall nominate and use reasonable efforts to cause to be elected two
members of the Board designated by the Placement Agent, at least one of whom
must be a Canadian resident, and not a U.S. citizen. If less than 80 Special
Warrants are sold in the Placement, both such nominees shall be required to be
Canadian residents, and not U.S. citizens. Until such time as both nominees of
the Placement Agent have been elected or appointed to the Board, the Placement
Agent shall be entitled to have one observer receive notice of and attend all
meetings of the Board. Board meetings shall be held on not less than a quarterly
basis. The Placement Agent's designees to the Board shall be reimbursed for
expenses incurred in attending Board meetings and shall be entitled to such
other cash and non-cash compensation as is afforded other non-employee members
of the Board. The Company agrees that two of the currently existing members of
the Board shall not stand for reelection at the next meeting of shareholders.
The Placement Agent acknowledges and agrees that until such time as the Xxxx
Loan has been repaid, or if Xx. Xxxx purchases more than $1,500,000 of Special
Warrants in the Offering, then until such time as he ceases to beneficially own
at least 5% of the Company's common shares, the Company shall nominate and use
reasonable efforts to cause to be elected one member of the Board designated by
Xx. Xxxx.
5. Prospectus Qualification. Section 4(j) of the Agreement is hereby deleted
in its entirety and replaced with the following:
(j) Final Prospectus. The Company shall use its reasonable commercial
efforts to file and receive a receipt for the final, long-form Canadian
Prospectus qualifying the Shares and the Underlying Shares (to the extent
permissible) for distribution and trading in Ontario, British Columbia and
Alberta within 90 days after the Initial Closing, and shall have delivered
commercial copies of such Prospectus to the Placement Agent.
6. Finance Committee. Section 4 of the Agreement is hereby amended by adding
new subsection (m):
(m) Executive Finance Committee. On the date of the Initial Closing, the
Company shall establish an executive finance committee of the Board (the
"Finance Committee") comprised of three Board members, one of which shall be the
designee of the Placement Agent, one of which shall be the designee of Xxxxxx
Xxxx, and one of which shall be the designee of the Chairman of the Board. The
Finance Committee shall be authorized to have final approval of all cost cutting
measures and new offerings of equity or debt convertible to equity
("Financings") by the Company, other than; (i) Financings that involve the
issuance of common stock at a price greater than the Closing Price and on terms
no more favorable than the Offering, as deemed by the Finance Committee, acting
reasonably, or (ii) Financings from strategic partners. The Finance Committee
shall remain in place at least until such time as the Xxxx Loan is repaid in
full.
7. Effectiveness. This Amendment shall be deemed effective as of the date
hereof.
8. Miscellaneous.
a. Agreement Amended. Subject to the provisions of this Section 8, this
Amendment shall be deemed to be an amendment to the Agreement. All references to
the
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Agreement in any other document, instrument agreement or writing hereafter shall
be deemed to refer to the Agreement as amended hereby.
b. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the Company, the Placement Agent and their respective
successors and assigns.
c. Governing Law. This Amendment and the rights and obligation of the
parties hereunder shall be construed in accordance with and governed by the law
of the State of New York, without regard to conflict of laws principles.
d. Counterparts. This Amendment may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
e. Fiduciary Obligations. Nothing in this Amendment or the Agreement shall
derogate from any directors' fiduciary obligations.
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
INFOWAVE SOFTWARE, INC.
By:
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Name: Xxxx Xxxxxx
Title: Chief Financial Officer
Agreed:
COMMONWEALTH ASSOCIATES, L.P.
By: Commonwealth Associates Management Company., Inc.
By:
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Name: Xxxxxx Xxxxx
Title: Secretary
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