EXHIBIT 10.22.2
FIRST AMENDMENT TO THE
NOTE PURCHASE AGREEMENT
This FIRST AMENDMENT TO THE NOTE PURCHASE AGREEMENT (the "Amendment")
is executed this 5th day of July 2001, by and among Probex Fluids Recovery,
Inc., a Delaware corporation ("PFR"), Probex Corp., a Delaware corporation
("Probex"), and the signatories designated as Holders hereto (the "Holders").
R E C I T A L S:
WHEREAS, PFR, Probex and the Purchasers previously entered into that
certain Note Purchase Agreement (the "Note Purchase Agreement"), dated as of
November 29, 2000, whereby the Purchasers purchased 7% Senior Secured
Convertible Notes Due November 28, 2004 (the "Notes") from PFR. Capitalized
terms not defined herein shall have the meaning ascribed to it the Note Purchase
Agreement.
WHEREAS, PFR, Probex and the Holders desire to amend certain
registration rights provisions set forth in the Note Purchase Agreement.
THEREFORE, PFR, Probex and the Holders hereby agree as follows:
A G R E E M E N T S:
I. Amendment to the Note Purchase Agreement. Section 20.1 of the Note Purchase
Agreement is hereby be amended to read in its entirety as follows:
"20.1. Filing and Effectiveness of Registration Statement.
Probex shall prepare and file with the SEC as soon as practicable after
the Closing of this Agreement, a Registration Statement relating to the
offer and sale of the Registrable Securities and shall use all
commercially reasonable efforts to cause the SEC to declare such
Registration Statement effective under the Securities Act as promptly
as practicable thereafter. If the Registration Statement covering the
Registrable Securities is not declared effective by the SEC on or
before the dates set forth below, then Probex shall make payments to
the Holders in such amounts and at such times in the manner set forth
below as partial relief for the damages to the Holders by reason of any
such delay in or reduction of their ability to sell the Registrable
Securities (which remedy shall not be exclusive of any other remedies
available at law or in equity):
(i) if the Registration Statement covering the Registrable
Securities is not declared effective by the SEC on or before March 31,
2001, each Holder shall be entitled to receive, for no additional cash
consideration, additional shares of Probex Common Stock equal to two
1
percent (2%) of the Probex Common Stock acquirable upon conversion of
the Note held by such Holder as of March 31, 2001; and
(ii) if the Registration Statement covering the Registrable
Securities is not declared effective by the SEC on or before the
calendar quarter ending June 30, 2001, and thereafter on or before the
last day of each succeeding calendar quarter, each Holder shall be
entitled to receive, for each such calendar quarterly period, and for
no additional cash consideration, additional shares of Probex Common
Stock equal to two percent (2%) of the Probex Common Stock acquirable
upon conversion of the Note held by such Holder.
Probex shall notify the Holder by written notice that such Registration
Statement has been declared effective by the SEC within three (3)
business days of such declaration by the SEC. The Probex Common Stock
to which the Holders are entitled to receive pursuant to this
subsection 20.1 shall be delivered as soon as possible following the
date upon the Holders are entitled to receive the same, and such shares
shall be included in the Registration Statement as Registrable
Securities. The shares of Probex Common Stock issued pursuant to
subsections 20.1(i) and (ii) shall be deemed to be issued to the
Holders at a value per share equal to the closing price of the Probex
Common Stock as reported on the American Stock Exchange on the trading
day prior to their issuance."
II. Counterparts. This Amendment may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one and the same instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
IN WITNESS WHEREOF, this First Amendment to the Note Purchase Agreement
is executed and delivered as of the date first above written.
PROBEX FLUIDS RECOVERY, INC.
By: __________________________________________
Its: _________________________________________
PROBEX CORP.
By: __________________________________________
Its: _________________________________________
2
THE HOLDERS:
SIGNATURES PAGES OF HOLDERS INTENTIONALLY OMITTED.