MODIFICATION OF PRIVATE PLACEMENT MEMORANDUM NO. 2
AND SUBSCRIPTION AGREEMENT
THIS AGREEMENT is made this ___ day of September, 2004, by and between
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC., a Florida corporation (the "Company")
and those persons who are signatories hereto (individually an "Investor" and
collectively the "Investors").
WHEREAS, the Company offered to the Investors shares of its Common Stock,
pursuant to that certain Private Placement Memorandum dated March ___, 2004 (the
"Private Placement Memorandum"); and
WHEREAS, pursuant to a Subscription Agreement described in the Private
Placement Memorandum, certain persons purchased shares of the Common Stock as
described on Attachment A hereto; and
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WHEREAS, the Private Placement Memorandum and the Subscription Agreement
are incorporated herein by reference for all purposes, and all capitalized terms
herein shall have the same meaning as defined in the Private Placement
Memorandum and the Subscription Agreement; and
WHEREAS, the Company and the Investors desire to modify the terms of the
Private Placement Memorandum and the Subscription Agreement;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties agree as follows:
1. Modification of Purchase Terms. Notwithstanding anything contained
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to the contrary contained in the Private Placement Memorandum or the
Subscription Agreement, in addition to each share of the Common Stock purchased
by the Investors, the Investors who execute this Agreement, for no additional
consideration other than the consideration described herein, shall receive
one-half share of the Common Stock for every share of the Common Stock purchased
by the Investors.
2. Release of the Company. From and after the date of execution of
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this Agreement by the Investors, and in consideration for the agreement by the
Company to the terms and conditions of this Agreement, plus other good and
valuable consideration, inclusive of all attorneys' fees, interest, costs and
expenses, the receipt and sufficiency of which are hereby acknowledged, each
Investor, and each of his heirs, executors, personal representatives, successors
and assigns, agents, consultants, attorneys, and third party entities acting in
his behalf (collectively identified and referred to herein as the "Releasing
Parties"), do hereby forever Release, Acquit, Relinquish and Forever Discharge
the Company, and its personal representatives, successors and assigns,
affiliates or agents, employees, attorneys, consultants, shareholders, officers,
directors, and other legal representatives, and insurers (collectively
identified and referred to herein as the "Released Parties") of and from any and
all causes of action, claims, demands, suits, liabilities, costs, expenses,
liens, security interests, losses, damages, and attorneys' fees, past, present
and future, known or unknown, fixed or contingent, liquidated or unliquidated,
of any nature whatsoever arising out of or to arise out of, resulting from or to
result from any event or agreement before the date of this Agreement relating or
pertaining to the Private Placement Memorandum or the Subscription Agreement, or
which might have been asserted or could have been asserted by or on behalf of
any of the Releasing Parties against any of the Released Parties, including but
not limited to any claims, causes of action or theories of liability or recovery
based on contract, tort, intentional tort, negligence, gross negligence,
negligence per se, failure to warn, breach of fiduciary or special relationship,
fraud, malice, alter ego, property damage, punitive damages, past or future
medical expenses, physical pain and suffering, mental anguish, emotional
distress, lost wages, disfigurement, impairment, lost consortium, or any other
personal injury or property damage claims of any nature whatsoever, including
attorneys' fees and interest thereon.
3. Ratification and Republication. Except as amended by this
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Agreement, the Company and each of the Investors who execute this Agreement do
hereby ratify and republish the Subscription Agreement.
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4. Attorneys' Fees. In the event that it should become necessary for
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any party entitled hereunder to bring suit against any other party to this
Agreement for a breach of this Agreement, the parties hereby covenant and agree
that the party who is found to be in breach of this Agreement shall also be
liable for all reasonable attorneys' fees and costs of court incurred by the
other parties.
5. Law Governing; Jurisdiction. This Agreement shall be governed by
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and construed in accordance with the laws of the State of California, without
regard to any conflicts of laws provisions thereof. Each party hereby
irrevocably submits to the personal jurisdiction of the United States District
Court for the Central District of California, as well as of the Superior Courts
of the State of California in Riverside County, California over any suit, action
or proceeding arising out of or relating to this Agreement. Each party hereby
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such mediation,
arbitration, suit, action or proceeding brought in any such county and any claim
that any such mediation, arbitration, suit, action or proceeding brought in such
county has been brought in an inconvenient forum.
6. Benefit. All the terms and provisions of this Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns. Notwithstanding anything
here contained to the contrary, this Agreement shall be binding on each Investor
who executes this Agreement, even though all of the Investors do not execute a
counterpart of this Agreement.
7. Construction. Words of any gender used in this Agreement shall be
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held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
8. Waiver. No course of dealing on the part of any party hereto or its
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agents, or any failure or delay by any such party with respect to exercising any
right, power or privilege of such party under this Agreement or any instrument
referred to herein shall operate as a waiver thereof, and any single or partial
exercise of any such right, power or privilege shall not preclude any later
exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
9. Cumulative Rights. The rights and remedies of any party under this
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Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
10. Invalidity. In the event any one or more of the provisions
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contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement or any
such other instrument.
11. Cumulative Rights. The rights and remedies contained in this
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Agreement shall be cumulative and the exercise or partial exercise of any such
right or remedy shall not preclude the exercise of any other right or remedy.
12. Headings. The headings used in this Agreement are for convenience
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and reference only and in no way define, limit, amplify or describe the scope or
intent of this Agreement, and do not effect or constitute a part of this
Agreement.
13. No Third-Party Beneficiary. Any agreement to pay an amount and any
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assumption of liability contained in this Agreement, express or implied, shall
be only for the benefit of the undersigned parties and their respective
successors and assigns (as herein expressly permitted), and such agreements and
assumptions shall not inure to the benefit of the obligees or any other party,
whomsoever, it being the intention of the parties hereto that no one shall be or
be deemed to be a third-party beneficiary of this Agreement.
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14. Multiple Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A facsimile transmission
of this signed Agreement shall be legal and binding on all parties hereto.
15. Entire Agreement. This instrument and the attachments hereto, as
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well as any collateral agreements relating to the subject matter hereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC.
By
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Xxxx Xxxxxxxx, Co-President
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Signature of the Investor
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Printed Name of the Investor
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Address of the Investor
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Telephone Number of the Investor
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E-mail Address of the Investor
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Number of Additional Shares to be
Received by the Investor
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ATTACHMENT A
SUBSCRIBERS TO THE PRIVATE PLACEMENT
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| NAME | NUMBER OF SHARES PURCHASED |
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