EXHIBIT 10.24
AMENDMENT NO. 1 TO UNIT PURCHASE AGREEMENT
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This Amendment No. 1 to that certain Unit Purchase Agreement entered into
by and between Imsco Technologies, Inc., the predecessor to XXXX, Inc., a
Delaware corporation (the "Company") and each and all of the investors
identified in the signatures below (each individually an "Investor," and
collectively the "Investors") on or about July 10, 2001. This Amendment No.1 is
effective as of November 26, 2002.
WHEREAS, each and all of the Investors purchased restricted Units
consisting of one Series C Preferred Share, convertible into common stock (the
"Series C Preferred"), and one warrant convertible into one Series C Preferred
Share, which is subsequently convertible into common stock (the "Warrant"), from
the Company as part of the same offering and on identical terms to one another
on or about the date listed above;
WHEREAS, each and all of the Investors purchased varying numbers of Units,
each Unit with an identical purchase price;
WHEREAS, each and all of the Investors and the Company, in reviewing the
Unit Purchase Agreement, the Series C Preferred Share Certificate of Designation
and amendments thereto, the Warrant Agreement, and notes and documentation
related to such investment personal to each and every Investor and the Company,
have determined that the Unit Purchase Agreement, as presently drafted, does not
meet the intention of any of the parties thereto; and
WHEREAS, all parties now freely desire to revise and amend the Unit
Purchase Agreement to more accurately reflect the meeting of the minds which
occurred on July 10, 2001, and remains unchanged on the date of execution of
this Amendment, and for no further consideration on any parties' part, and
noting particularly Article VI, Section 6.1 of the Unit Purchase Agreement;
NOW, THEREFORE, the Unit Purchase Agreement is hereby amended as follows:
1. Article I, Section 1.2 shall be revised as follows:
(u) ""UNITS" means the sixty four thousand (64,000) investment units of the
Company being purchased hereunder, at a purchase price of $23.4375 per Unit,
each consisting of one share of Preferred Stock and one Warrant to purchase
31.25 shares of Common Stock at an exercise price of $1.00.
(v) "WARRANT(S)" refers to those warrants comprising a part of the Units to
be issued to each Investor, to purchase the number of shares of Common Stock
calculated therein, which such warrants are each exercisable as provided therein
at any time within three (3) years from the date of issuance thereof and is in
the form of EXHIBIT B hereto."
2. Article II, Section 2.5 shall be revised as follows:
"WARRANTS. The Warrants shall grant to each Investor the right to purchase
thirty-one and one quarter shares (31.25) of Common Stock (the "Warrant
Shares") for each Unit purchased hereunder, with an exercise price of $1.00
per share of Common Stock. The Warrants shall be exercisable, at Investor's
sole discretion, in whole or in part, for three years from the date of
issuance. Additional terms and conditions of the Warrants are set forth in
more detail in the Warrants, attached hereto as EXHIBIT B.
3. Exhibit B, Section 1(b) shall be revised as follows:
"The Holder may, at any time prior to the Termination Date, subject to the
terms and conditions hereof, exercise this Warrant in whole or in part for
thirty-one and one quarter (31.25) shares of Common Stock, at an exercise
price per share equal to $1.00 (the "Common Stock Warrant Price"), by the
surrender of this Warrant (properly endorsed) at the principal office of
the Corporation, or at such other agency or office of the Corporation in
the United States of America as the Corporation may designate by notice in
writing to the Holder at the address of such Holder appearing on the books
of the Corporation, and by payment to the Corporation of the Warrant Price
(as hereinafter defined) in lawful money of the United States or by check
for each Warrant Share being purchased. The Common Stock Warrant Price
shall be referred to herein as the "Warrant Price." Upon any partial
exercise of this Warrant, there shall be executed and issued to the Holder
a new Warrant in respect of the Warrant Shares as to which this Warrant
shall not have been exercised. In the event of the exercise of the rights
represented by this Warrant, a certificate or certificates for the Warrant
Shares so purchased, as applicable, registered in the name of the Holder,
shall be delivered to the Holder hereof as soon as practicable after the
rights represented by this Warrant shall have been so exercised."
3. Each and every Investor hereby acknowledges and accepts that each Investor
is entitled to convert the Warrants directly into Common Stock, and each
Investor is entitled to convert such Warrant into the number of shares of
Common Stock as determined by each Investor's original investment, and
calculated according to the conversion ratio discussed herein. The number
of shares of Common Stock underlying the Warrants held by each Investor is
fixed, and shall not exceed the maximum indicated below for each Investor:
Trilium Holdings Ltd. 666,667 shares of Common Stock
Xxxxxxx Partners, L.P. 666,667 shares of Common Stock
Xxxxxxx X. Xxxxxxx 480,000 shares of Common Stock
Xxxx Xxxxxxx 186,666 shares of Common Stock
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Total 2,000,000 shares of Common Stock
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to the
Unit Purchase Agreement to be executed by themselves as individuals or by their
respective officers thereunto duty authorized, as of the date first above
written.
THE COMPANY THE INVESTORS:
XXXX, INC. TRILIUM HOLDINGS LTD.
A Delaware Corporation A Bahamas Corporation
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. XxXxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. XxXxx
Title: President Title: Director
XXXXXXX PARTNERS, L.P.
A Delaware Limited Partnership
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
XXXXXXX X. XXXXXXX
An Individual
/s/ Xxxxxxx X. Xxxxxxx
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XXXX XXXXXXX
An Individual
/s/ Xxxx Xxxxxxx
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