Exhibit 10.1
August 17, 2001
BY FACSIMILE (000) 000-0000
Holders of Series B 7% Convertible Preferred Stock
(Identified on the attached Consent to Amendment
Holders Signature Page)
c/o Amaranth Trading LLC
Two American Lane
Greenwich, Connecticut 06836-2571
Attention: Xxxxxxx X. Xxxx, Esq.
Re: Consent to Amendment
Gentlemen:
This will confirm the agreement between you (each a "Holder" and
collectively, the "Holders") and Educational Video Conferencing, Inc. ("EVCI")
regarding XXXX's Certificate of Designations (the "COD") of Series B 7%
Convertible Preferred Stock ("Series B Preferred"):
1. Each Holder hereby irrevocably (subject to the voiding of this agreement
pursuant to Paragraph 4 below) consents to the amendment (the "Amendment") of
Section 19(a) of the COD to delete the entirety of such Section contained after
the first sentence thereof (the "Amendment Consent").
2. Each Holder hereby irrevocably waives (subject to the voiding of this
agreement pursuant to Paragraph 4 below) any claim of any kind to the payment of
dividends pursuant to Section 4(a) of the COD for the period beginning September
22, 2000 and ending September 21, 2001 (the "Waiver"). The Waiver is without
prejudice to any legal position EVCI or such Holder may take in the future
regarding its right to receive, and EVCI's obligation to pay, any dividends
pursuant to Section 4 of the COD with respect to any period commencing after
September 21, 2001.
3. EVCI is simultaneously herewith issuing to Holders its promissory note
for $910,000, in the form attached hereto as Exhibit A (the "Note"). EVCI is
delivering the Note into escrow, pursuant to the Escrow Agreement referred to in
the Note.
4. This agreement and the Note shall be null and void and of no effect if,
prior to October 10, 2001, Nasdaq Stock Market Inc. shall have notified EVCI
August 17, 2001
Page 2
that the Nasdaq Listing Qualifications Panel (the "Panel"), before which EVCI
appeared in July 2001, has decided that EVCI's common stock will be delisted
from the Nasdaq SmallCap Market for any reason other than the failure to meet
the minimum bid requirement.
5. Each Holder represents and warrants to EVCI that it is the record and
beneficial owner of the percentage of outstanding shares of Series B Preferred
of EVCI set forth parenthetically opposite its name on the attached Consent to
Amendment Holders Signature Page.
6. This agreement constitutes the entire agreement among the Holders and
EVCI with respect to this subject matter and may not be amended except by a
writing signed by all parties. Any waiver of any provision of this agreement
shall be in writing and signed by the party granting the waiver.
7. This agreement shall be governed by and interpreted in accordance with
the laws of the State of New York.
8. In the event of a breach of this agreement, the parties shall have all
remedies available to them at law or in equity except that, under no
circumstances, other than this agreement becoming null and void under paragraph
4 above, shall the Amendment Consent be revoked, changed, conditioned or
otherwise affected.
9. This letter supercedes in all respects the letter dated August 7, 2001
from EVCI to Amaranth Trading LLC.
Please indicate your agreement to the foregoing, by signing the Consent to
Amendment Holders Signature Page, delivering the executed original thereof to
EVCI by mail and a copy by facsimile to (000) 000-0000. For this agreement to
become effective, the facsimile of your signed copies thereof must be received
by 2:00 p.m. New York City time on August 17, 2001, unless we waive this
requirement in writing.
Sincerely yours,
/s/ Xx. Xxxx X. Xxxxxxxx
------------------------------------
Xx. Xxxx X. Xxxxxxxx
Chairman and CEO
AIB:sd
Consent to Amendment
Holders Signature Page
AMARANTH TRADING LLC (77%)
By: Amaranth Advisors, LLC
(Managing Member)
By: /s/ Xxxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Member
SENECA CAPITAL INTERNATIONAL, LTD. (10%)
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Partner
SENECA CAPITAL, L.P. (5%)
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Partner
MERCED PARTNERS LIMITED PARTNERSHIP (4%)
By: Global Capital Management, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
LAKESHORE INTERNATIONAL, LTD. (4%)
By: Hunter Capital Management, L.L.C.,
Investment Manager
By: Global Capital Management, Inc.
Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
