EXHIBIT 4.6
AMENDMENT
This Amendment ("AMENDMENT") is made to each of the Securities Purchase
Agreements (each a "SECURITIES PURCHASE AGREEMENT" and, collectively, the
"SECURITIES PURCHASE AGREEMENTS") and the Registration Rights Agreements (each a
"REGISTRATION RIGHTS AGREEMENT" and, collectively, the "REGISTRATION RIGHTS
AGREEMENTS"), in each case between Advanced Technology Industries, Inc. (the
"COMPANY") and each Purchaser, as the case may be, listed on the execution page
hereof (each, a "PURCHASER" and collectively, the "PURCHASERS") and each of the
9% Convertible Debentures due August 20, 2006 issued to the Purchasers (the
"DEBENTURES") by the Company.
WHEREAS, the Company has requested that the Purchasers amend, among
other things, the Trigger Date (as defined in the applicable Debentures), the
Required Filing Date (as defined in the applicable Registration Rights
Agreement) and the Initial Required Effective Date (as defined in the applicable
Registration Rights Agreement);
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. TRIGGER DATE. Section 4(d) of each of the Debentures is hereby
amended by deleting the date "July 1, 2005" set forth therein
and inserting in lieu thereof the date "September 23, 2005".
2. HEDGING TRANSACTIONS. The first sentence of Section 4(i) of
each of the Securities Purchase Agreements is hereby amended
and restated as follows:
"Each Lender agrees that as long as it or any of its
Affiliates holds any Securities it shall not, and such Lender
shall cause it Affiliates not to, hold any short sale position
or any hedging position with respect to any Company Securities
in excess of $25,000; provided that, notwithstanding the
foregoing, any such Lender or such Affiliates may enter into
any such short position or hedging position (i) prior to the
Effective Date, at any time during any period that that the
bid price for the Common Stock as reported by the Reporting
Service is equal to or greater than $0.25 (and such Lender or
such Affiliate shall be entitled to hold such short position
or hedging position entered into pursuant to this clause (i)
even if the bid price for the Common Stock declines to less
than $0.25) and (ii) in connection with a conversion under the
Debenture or an exercise of the Warrants."
3. REQUIRED FILING DATE. Section 1(j) of each of the Registration
Rights Agreements is hereby amended by deleting the date "May
31, 2005" set forth therein and inserting in lieu thereof the
date "October 5, 2005".
4. INITIAL REQUIRED EFFECTIVE DATE. Section 2(a)(i) of each of
the Registration Rights Agreements is hereby amended by
deleting the date "July 1, 2005" set forth therein and
inserting in lieu thereof the date "November 30, 2005".
5. OTHER REGISTRATION RIGHTS AGREEMENTS. Section 5(b) of each of
the Registration Rights Agreements is hereby amended and
restated as follows:
"Except for the Registration Rights Agreements attached as
Exhibits to the Company's Annual Report on Form 10-KSB for the
year ended December 31, 2004 (the "Filed Registration Rights
Agreements") neither the Company nor any of its subsidiaries
has, as of the date hereof, nor shall the Company nor any of
its subsidiaries, on or after the date of this Agreement,
enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof.
Except for the Filed Registration Rights Agreements neither
the Company nor any of its subsidiaries has previously entered
into any agreement granting any registration rights with
respect to any of its securities to any Person that is
currently in effect. The Company shall be entitled to include
all the shares required to be registered hereunder, under the
Filed Registration Rights Agreements and under any
registration rights agreement entered into after the date of
this Agreement and prior to August 15, 2005, that is not
inconsistent with the rights granted to the Holders in this
Agreement or that otherwise conflicts with the provisions
hereof on a single registration statement under the Securities
Act."
6. WAIVER. Each Purchaser hereby waives any Events of Default (as
defined in the applicable Debentures) and any breach under the
applicable Registration Rights Agreement and the applicable
Securities Purchase Agreement, in each case existing on the
date hereof.
7. CONSIDERATION. In consideration for the amendments described
herein the Company shall issue to each Purchaser such
Purchaser's pro rata portion (based on the aggregate principal
amount outstanding under the Debentures issued to such
Purchaser to the aggregate principal amount outstanding under
the Debentures issued to all the Purchasers) of additional
Debentures in the aggregate principal amount equal to $45,000
and shall grant to each Purchaser a lien and security interest
in certain collateral pursuant to the terms and conditions of
a Security Agreement attached hereto as Exhibit A. Such
Debentures shall be issued on the date hereof and held by
Xxxxxxx & Xxxxxx LLP, as escrow agent, to be released to the
Purchasers if the Proxy Statement (as defined below) is filed
by the Proxy Filing Date (as defined below) and to be returned
to the Company for cancellation if the Proxy Statement is not
filed by the Proxy Filing Date and this Amendment is
terminated pursuant to Section 9 hereof.
8. REGISTRATION STATEMENT PENALTIES. Notwithstanding anything
herein to the contrary, the Periodic Amount (as defined in the
applicable Registration Rights Agreement) shall continue to
accrue under the terms set forth in Section 2 of the
applicable Registration Rights Agreement as if the amendments
described in Sections 3 and 4 hereof were not effected;
provided that such Periodic Amount shall not be due and
2
payable until the earlier of (a) the Effective Date (as
defined in the applicable Registration Rights Agreement) and
(b) with respect to such Periodic Amounts relating to (i) the
Required Filing Date (as defined in the applicable
Registration Rights Agreement), such date as amended in
Section 3 hereof, and (ii) the Initial Required Effective Date
(as defined in the applicable Registration Rights Agreement),
such date as amended in Section 4 hereof.
9. FILING OF FORM 8-K. Within four (4) business days of the date
hereof, the Company shall file a Current Report on Form 8-K
with the Securities and Exchange Commission (the "SEC")
disclosing the material terms of this Amendment and attaching
this Amendment as an exhibit thereto.
10. PROXY. This Amendment shall become effective as of the date
hereof but shall terminate and be of no force and effect if
the proxy statement (the "PROXY STATEMENT") relating to the
meeting of the stockholders of the Company to, among other
things, approve the Certificate of Incorporation Amendment (as
defined in the applicable Securities Purchase Agreement) has
not been filed with the SEC by the fifth day following the
date hereof (the "PROXY FILING DATE").
11. EFFECT ON AGREEMENTS. Except as expressly set forth above, all
of the terms and conditions of the Securities Purchase
Agreements, the Debentures and the Registration Rights
Agreements as heretofore amended, shall continue in full force
and effect after the execution of this Amendment, and shall
not in any way be changed, modified or superseded.
12. GOVERNING LAW. This Amendment and any claims arising hereunder
shall be construed and governed by the laws of the State of
New York.
*********************
Executed as of July 19, 2005 by the undersigned duly authorized
representatives of the Company and each Purchaser:
ADVANCED TECHNOLOGY THE GROSS FOUNDATION, INC.
INDUSTRIES, INC.
By: By:
-------------------------- -------------------------------
Name: Name:
Title: Title:
DOUBLE U MASTER FUND, L.P.
By:
-------------------------------
Name:
Title:
PLATINUM PARTNERS VALUE ARBITRAGE
FUND, L.P.
By:
-------------------------------
Name:
Title:
JM INVESTORS, INC.
By:
-------------------------------
Name:
Title:
