Exhibit 10.41
BRIDGE FINANCING AMENDMENT AGREEMENT NO. 3
This Bridge Financing Amendment Agreement No. 3 ("Amendment Agreement")
is entered into as of July 29, 2002, by Lithium Technology Corporation ("LTC")
and Arch Hill Capital N.V. ("Arch Hill") (LTC and Arch Hill collectively
referred to herein as the "Parties").
RECITALS
WHEREAS, the Parties have executed a Bridge Financing Agreement dated
December 31, 2001 as amended on March 20, 2002 and May 30, 2002 (the
"Agreement"); and
WHEREAS, the Parties have agreed to amend the Agreement to provide for
the issuance of promissory notes in the form attached hereto for any funds
advanced on or after the date hereof.
NOW THEREFORE, in consideration of the mutual agreements contained
herein, the Parties agree as follows:
1. Section 2 of the Agreement shall be amended to add the following as
the last sentence of Section 2:
"LTC will issue to Arch Hill promissory notes (the "Promissory Notes")
in the form attached hereto as Exhibit B for each amount advanced under
this Letter Agreement on or after July 29, 2002."
2. Section 3 of the Agreement shall be amended to add the following as
the last sentence of Section 3:
"Arch Hill will advance to LTC $150,000 on July 29, 2002 and $150,000
on or before August 12, 2002 and such additional amounts agreed to by
Arch Hill and LTC from time to time pending the Closing of the
Financing and the Share Exchange and LTC will deliver to Arch Hill a
Promissory Note against receipt by LTC of such funds."
3. Section 4 of the Agreement shall be amended to add the following as
the last sentence of Section 4:
"The principal balance and all other sums due and payable under any
Promissory Note issued on or after July 29, 2002 shall be payable upon
the earlier of (i) the closing date of an equity financing in which LTC
receives aggregate gross proceeds of $2 million from subscribed funds
and from the application of the Promissory Note Amount (as herein
defined) and
(ii) October 31, 2002. Arch Hill may, in lieu of repayment of the
Promissory Note, apply any amount outstanding under the Promissory Note
(the "Promissory Note Amount") against the purchase price of equity
securities being sold by LTC in a Financing.
4. Section 12 of the Agreement shall be amended and restated in its
entirety to read as follows:
"Prior to August 31, 2002, provided Arch Hill is not otherwise in
breach of this Letter Agreement, LTC will not encourage, solicit or
initiate discussions or negotiations contemplating a financing
transaction with any person other than Arch Hill or the Investors in
the Financing without the prior written consent of Arch Hill."
5. All other terms and conditions of the Agreement and the Notes shall
remain the same and shall continue to have the same force and effect as
originally written.
IN WITNESS WHEREOF, the Parties have executed this Amendment Agreement
as of the date first above written.
LITHIUM TECHNOLOGY
CORPORATION
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Chairman and Chief Executive Officer
ARCH HILL CAPITAL N.V.
By: /s/ X. X. Xxx Xxxxx
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X. X. Xxx Xxxxx
Executive Officer
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EXHIBIT B
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, NOR
UNDER ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD, ASSIGNED OR
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE
UNDER THE SECURITIES ACT OF 1933 AND ALL APPLICABLE STATE SECURITIES LAWS OR
(ii) THE COMPANY RECEIVES AN OPINION OF ITS COUNSEL, OR OTHER COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY, THAT THIS NOTE MAY BE PLEDGED, SOLD, ASSIGNED OR
TRANSFERRED WITHOUT ANY EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933 AND ALL APPLICABLE STATE SECURITIES LAWS.
LITHIUM TECHNOLOGY CORPORATION
PROMISSORY NOTE
$ , 2002
______________ ______________
For value received, Lithium Technology Corporation, a Delaware
corporation ("LTC"), hereby unconditionally promises to pay to the order of Arch
Hill Capital N.V. (together with its successors, assigns and transferees,
collectively, "Arch Hill"), the principal amount of ________________ Dollars
($_______________), plus unpaid default interest (the "Default Interest")
accrued thereon (after payment hereunder is past due) to the date of repayment
in full thereof. This Note is being delivered in connection with the Letter
Agreement dated December 31, 2001 between LTC and Arch Hill, as amended (the
"Letter Agreement"). All capitalized terms used herein and not defined herein
shall have the meanings set forth in the Letter Agreement.
1. Maturity Date. The principal balance and all other sums due and
payable under this Note shall be payable upon the earlier of (i) the closing
date of an equity financing in which LTC receives aggregate gross proceeds of $2
million from subscribed funds and from the application of the Promissory Note
Amount (as herein defined) and (ii) October 31, 2002. Arch Hill may, in lieu of
repayment of this Note, apply any amount outstanding under this Note (the
"Promissory Note Amount") against the purchase price of equity securities being
sold by LTC in a Financing.
2. Default. Any of the following occurrences or acts shall constitute
an event of default ("Event of Default") under this Note:
(a) the failure by LTC to pay all or any part of any installment of
principal or interest or the principal balance on this Note within three (3)
days of when due; or
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(b) a decree, judgment or order by a court of competent jurisdiction
shall have been entered adjudging LTC as bankrupt or insolvent which decree,
judgment or order has not been dismissed, vacated or withdrawn within sixty (60)
days, or LTC shall institute any proceedings in bankruptcy, have consented to
the appointment of a custodian or receiver or made a general assignment for the
benefit of its creditors.
If LTC shall have failed to make any payment due hereunder for more
than three (3) days after its due date, Arch Hill may charge LTC a late fee in
the amount of 5% of the amount of the overdue payment for payment of the
expenses of handling a late payment. If an Event of Default shall occur, and in
case the holder of this Note should elect, on account of such default, to
declare the unpaid balance of the principal sum due and payable, said principal
sum, or so much thereof as may remain unpaid at the time of such default, shall
bear interest at the rate of fifteen percentum (15%) per annum from the date of
default.
In the event this Note is collected by law or through an attorney at
law, all costs of collection, including attorney's fees, shall be paid by the
maker, or makers, thereof.
If an Event of Default shall occur, the entire outstanding principal
amount of this Note, together with all accrued and Default Interest and any
other sums due hereunder, shall, at the option of Arch Hill, immediately become
due and payable upon demand for payment, but without any other notice of intent
to accelerate, notice of acceleration, notice of nonpayment, presentment, notice
of dishonor, protest or notice of protest, or the like.
3. Miscellaneous.
3.1 Transfer. This Note may be transferred, in whole or in
part, by Arch Hill at any time without the written consent of LTC to any other
third party.
3.2 Waiver and Amendment.
(a) LTC hereby waives to the fullest extent permitted
by applicable law, presentment, demand, notice, protest, and all other demands
and notice in connection with the delivery, acceptance, performance, default or
enforcement of this Note, and hereby consents to any extensions of time,
renewals, releases of any party to this Note, waivers or modifications that may
be granted or consented to by the holder of this Note in respect of the time of
payment or any other provisions of this Note.
(b) LTC FURTHER WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS NOTE.
(c) No failure or delay on the part of Arch Hill in
exercising any of its rights, powers or privileges hereunder shall operate as a
waiver thereof, nor shall a single or partial exercise thereof preclude any
other or future exercise of any right,
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power or privilege. The remedies provided herein are cumulative and are not
exclusive of any remedies provided by law.
3.3 Construction. This Note shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York, without regard to its conflicts of law principles.
IN WITNESS WHEREOF, this Note has been executed and delivered on the
date specified by the duly authorized representative of LTC.
LITHIUM TECHNOLOGY CORPORATION
By:
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Xxxxx X. Xxxx
Chairman and Chief Executive Officer
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