FIRST AMENDMENT
TO
COMMITMENT AGREEMENT
THIS FIRST AMENDMENT TO COMMITMENT AGREEMENT (this "Amendment") is made as
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of March 27, 2006, between Private Trading Systems, Inc., a Nevada Corporation
(the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), an individual, or an entity
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owned and controlled by ▇▇▇▇▇▇▇, as a past and, potentially, future investor in
the Company (collectively, the "Investor"). Capitalized terms not otherwise
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defined herein shall have the same meaning set forth in that certain Commitment
Agreement (the "Agreement") made as of November 21, 2005, between Company and
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Investor.
BACKGROUND
The Company and the Investor entered into the Agreement pursuant to which
Investor committed to invest funds in the Company provided that the Company met
certain milestones.
Pursuant to Section 7 of the Agreement, the parties desire to amend the
Agreement in the manner particularly set forth below.
For and in consideration of the foregoing premises, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
AMENDMENT
1. CONTINUING EFFECT OF THE AGREEMENT. Except as expressly provided in
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this Amendment, the Agreement will remain unchanged and in full force and
effect; provided, however, nothing contained in the Agreement will have the
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effect of preventing or limiting, in any way, the terms of this Amendment.
Furthermore, if any conflict arises between the terms of this Amendment and the
terms of the Agreement, this Amendment will govern as to the conflicting terms.
2. AMENDMENT OF SECTION 1. Section 1 of the Agreement is hereby
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deleted and replaced in its entirety by the following:
1. CAPITAL INVESTMENT. Within 90 days of the occurrence of the
shares of the Company's common stock being listed on the American Stock
Exchange ("AMEX"), the Investor agrees that, upon written notice from the
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Company and at the sole discretion of the Company, Investor will deliver US
$20,000,000 worth of cash and/or liquid securities, but excluding any
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shares of Birchington Investments, Ltd. (collectively, the "Capital
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Investment"), to the Company in exchange for shares of the Company's common
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stock (the "Stock") in number equal to the quotient obtained by dividing
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the aggregate value of the Capital Investment actually contributed to the
Company by the fair market value of the Company's common stock as listed on
AMEX. The fair market value will be determined by determining the average
closing price of the Company's common stock on AMEX for the five
consecutive trading days preceding the date on which the Capital Investment
is due to the Company.
3. BINDING NATURE OF AMENDMENT; TRANSFER OF INTEREST. This Amendment
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shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors, and assigns, except that
Investor shall not assign, grant a security interest in, or otherwise transfer
its rights under this Amendment without the consent of the Company, and any
attempted transfer or grant without such consent shall be void and of no force
or effect.
4. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
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number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Amendment shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. Any photographic or xerographic copy of this Amendment, with all
signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as if it were an executed counterpart of this
Amendment. Signatures may be given by facsimile or other electronic
transmission, and such signatures shall be fully binding on the party sending
the same.
5. PROVISIONS SEVERABLE. The provisions of this Amendment are
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independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Further, if a court of competent jurisdiction determines that any provision of
this Amendment is invalid or unenforceable as written, such court may interpret,
construe, rewrite or revise such provision, to the fullest extent allowed by
law, so as to make it valid and enforceable consistent with the intent of the
parties.
6. CONSTRUCTION. Each party hereto acknowledges that it was
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represented by legal counsel (or had the opportunity to be represented by legal
counsel but chose not to be represented) in connection with this Amendment and
that such party and his, her or its counsel have reviewed and revised this
Amendment, or have had an opportunity to do so but chose not to do so, and that
any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Amendment or any amendments or any Exhibits or Schedules hereto or thereto.
(signature page to follow)
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first above written.
PRIVATE TRADING SYSTEMS, INC. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Executive Officer
[SIGNATURE PAGE TO FIRST AMENDMENT TO COMMITMENT AGREEMENT]
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