Exhibit 10.17
Amendment No.1 to Securities Purchase Agreement
Amendment No. 1 dated as of September 25, 2001 (this "Amendment"), to the
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Securities Purchase Agreement dated as of January 25, 2001 (the "Purchase
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Agreement"), between Aquatic Cellulose International Corporation, a Nevada
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corporation (the "Company"), and the investors signatory thereto (each such
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investor is a "Purchaser" and all such investors are, collectively, the
"Purchasers"). Unless otherwise defined herein, capitalized terms used in this
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Amendment and not otherwise defined shall have the meanings assigned to them in
the Purchase Agreement.
WHEREAS, the parties hereto have entered into the Purchase Agreement; and
WHEREAS, the parties hereto desire to amend the Purchase Agreement pursuant
to the terms set forth herein.
NOW, THEREFORE, for good and other valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. The second paragraph of the introduction to the Purchase Agreement is
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hereby amended and restated as follows:
WHEREAS, subject to the terms and conditions set forth in this Agreement
and in accordance with (S) 4(2) and Rule 506 under the Securities Act of 1933,
as amended (the "Securities Act"), the Company desires to issue and sell to the
Purchasers and the Purchasers, severally and not jointly, desire to purchase
from the Company (i) an aggregate principal amount of $450,000 of the Company's
12% Secured Convertible Debentures, due twelve months from issuance, which shall
be in the form of Exhibit A (the "Debentures"), and (ii) certain warrants to
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acquire shares of the Company's common stock, $ .001 par value per share (the
"Common Stock"). All references to $ (dollars) shall be to US$ (United States
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Dollars).
Section 2. Section 1.1 of the Purchase Agreement is hereby amended and restated
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to read as follows :
1.1 The Closing; Settlements.
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(a) Subject to the terms and conditions of this Agreement, the Company
agrees to issue and sell to the Purchasers and the Purchasers severally agree to
purchase from the Company the Debentures and Warrants (as defined below) for an
aggregate purchase price of $450,000. The closing of the purchase and sale of
the Debentures and the Warrants (the "Closing") shall take place at the offices
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of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP ("Xxxxxxxx Xxxxxxxxx"), 1290
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Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000, immediately following the
execution hereof or such later date as the parties shall agree. The date of the
Closing is hereinafter referred to as the "Closing Date." The issuance of and
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payment for Debentures and Warrants shall occur on three settlement dates as
described in this Section. The first such settlement date is the Closing Date.
(b) On the Closing Date, the parties shall deliver or cause to be
delivered the following:
(i) The Company shall deliver to each Purchaser (1) Debentures, registered
in the name of such Purchaser, in principal amount equal to 37.50% of the
purchase price indicated below such Purchaser's name on the signature page to
this Agreement, (2) a Common Stock purchase warrant, in the form of Exhibit C,
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dated the Closing Date, pursuant to which such Purchaser shall have the right to
acquire one share of Common Stock for every two dollars ($2) of principal amount
of the Debentures acquired by such Purchaser on the Closing Date, (3) the legal
opinion of Xxxx X. Xxxxxxxxx, Esq., outside counsel to the Company, in agreed
form, (4) an executed Registration Rights Agreement, dated the date hereof,
among the Company and the Purchasers, in the form of Exhibit B (the
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"Registration Rights Agreement"), (5) the Transfer Agent Instructions, in the
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form of Exhibit D, delivered to and acknowledged by the Company's transfer agent
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(the "Transfer Agent Instructions"), (6) an executed Security Agreement, dated
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the date hereof, between the Company and the Purchasers, in the Form of Exhibit
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E (the "Security Agreement") and (7) an executed copy of this Agreement.
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(ii) Each Purchaser will deliver to the Company (1) 37.50% of the purchase
price indicated below such Purchaser's name on the signature page to this
Agreement in immediately available funds by wire transfer to an account
designated in writing by the Company for such purpose, and (2) an executed copy
of each of this Agreement, the Registration Rights Agreement and the Security
Agreement.
(c) The second settlement date shall be the third Trading Day (as defined
below) following the date on which the Company notifies the Purchasers that it
has duly amended its Certificate of Incorporation to increase the number of
authorized shares of Common Stock to at least 100,000,000 shares; provided,
that, on the second settlement date the conditions set forth in Section 1.2(a)
shall have been satisfied. On the second settlement date the parties shall
deliver or cause to be delivered the following:
(i) The Company deliver to each Purchaser (1) Debentures, registered in
the name of such Purchaser, in principal amount equal to 25% of the purchase
price indicated below such Purchaser's name on the signature page to this
Agreement, and (2) a Common Stock purchase warrant in the form of Exhibit C,
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dated the second settlement date, pursuant to which such Purchaser shall have
the right to acquire one share of Common Stock for every two dollars ($2) of
principal amount of the Debentures acquired by such Purchaser on the second
settlement date.
(ii) Each Purchaser shall deliver or cause to be delivered to the Company
25% of the purchase price indicated below such Purchaser's name on the signature
page to this Agreement in immediately available funds by wire transfer to an
account designated in writing by the Company for such purpose.
(d) The third settlement date shall be the second Trading Day following
Effective Date, provided, that, on the Effective Date the conditions set forth
in Section 1.2(b) shall have been satisfied. On the third settlement date, the
parties shall deliver or cause to be delivered the following:
(i) The Company shall deliver to each Purchaser(1) Debentures, registered
in the name of such Purchaser, in principal amount equal to 37.50% of the
purchase price indicated below such Purchaser's name on the signature page to
this Agreement, and (2) a Common Stock purchase warrant in the form of Exhibit
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C, dated the third settlement date, pursuant to which such Purchaser shall have
the right to acquire one share of Common Stock for every two dollars ($2) of
principal amount of the Debentures acquired by such Purchaser on the third
settlement date.
(ii) Each Purchaser shall deliver or cause to be delivered to the Company
37.50% of the purchase price indicated below such Purchaser's named on the
signature page to this Agreement in immediately available funds by wire transfer
to an account designated in writing by the Company for such purpose.
Section 3. The purchase price for Debentures purchased by AJW Partners,
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LLC, a Purchaser, as indicated on its signature page to the Purchase Agreement
is hereby amended by changing the sum of $250,000 to $200,000.
Section 4. The purchase price for Debentures purchased by New Millennium
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Capital Partners II, LLC, a Purchaser, as indicated on its signature page to the
Purchase Agreement is hereby amended by changing the sum of $250,000 to
$200,000.
Section 5. Except as expressly amended hereby, all terms, conditions and
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provisions of the Purchase Agreement shall remain unchanged and in full force
and effect and are ratified and reaffirmed in all respects, and all references
to the "Agreement" contained therein shall be deemed to refer to the Purchase
Agreement as amended by this Amendment.
Section 6. This Amendment may be executed in any number of counterparts,
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each of which when so executed shall be deemed to be an original and, all of
which taken together shall constitute one and the same Amendment.
Section 7. This Amendment shall be governed by and construed and enforced
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in accordance with the internal laws of the State of New York without regard to
the principles of conflicts of law thereof.
Section 8. This Amendment shall inure to the benefit of and be binding upon
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the parties hereto and their respective successors and permitted assigns under
the Purchase Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
the Securities Purchase Agreement to be duly executed by their respective
authorized persons as of the date first indicated above.
AQUATIC CELLULOSE
INTERNATIONAL CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Chief Executive Officer
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: First Street Manager II, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title:
AJW PARTNERS, LLC
By: SMS Group, LLC
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title:
