Exhibit 10.8
SECOND AMENDMENT TO
SECURED CONVERTIBLE DEBENTURE PURCHASE AGREEMENT
Among
ACCORD ADVANCED TECHNOLOGIES, INC.
and
THE INVESTORS SIGNATORY HERETO
Dated as of May 9, 2001
SECOND AMENDMENT TO SECURED CONVERTIBLE DEBENTURE PURCHASE AGREEMENT (this
"AGREEMENT"), dated as of July __, 2000, among ACCORD ADVANCED TECHNOLOGIES,
INC. a Nevada corporation as the successor entity of the Agreement and Plan of
Reorganization between Accord Advanced Technologies, Inc. and ENPETRO Mineral
Pool dated April 30, 2001 (the "COMPANY"), and the investors signatory hereto
(each such investor is a "PURCHASER" and all such investors are, collectively,
the "PURCHASERS").
WHEREAS, the Company and the Purchasers previously entered into a Secured
Convertible Debenture Purchase Agreement dated as of June 22, 2000 (the
"Convertible Purchase Agreement") as amended by that certain First Amendment to
Secured Convertible Debenture Purchase Agreement dated as of July 17, 2000 (the
"Amendment", along with the Convertible Purchase Agreement is herein
collectively referred to as the "Purchase Agreement") pursuant to which the
Company issued and sold to the Purchasers, and the Purchasers have purchased an
aggregate principal amount of $500,000 of the Company's 12% Secured Convertible
Debentures, due June 30, 2001 (the "Outstanding Debentures") and 250,000 of the
Company's Common Stock Purchase Warrants expiring June 30, 2003 (the
"Outstanding Warrants");
WHEREAS, pursuant and subject to the terms and conditions of the Purchase
Agreement the Company and the Purchasers agreed that upon the occurrence of
certain events which have not taken place (the "Purchase Conditions") the
Purchasers would purchase an additional $500,000 of the Company's 12% Secured
Convertible Debentures (as defined in the First Amendment to Secured Convertible
Debenture Purchase Agreement, the "Subsequent Purchase Price");
WHEREAS, the Company has requested of the Purchasers that they purchase
debentures in the amount of the Subsequent Purchase Price and the Purchasers are
willing to purchase debentures in the amount of the Subsequent Purchase Price
notwithstanding the failure of the Purchase Conditions to occur;
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Company desires to issue and sell immediately to the Purchasers and the
Purchasers, severally and not jointly, desire to purchase from the Company an
aggregate principal amount of $500,000 of the Company's 12% Secured Convertible
Debentures, due May 31, 2002, which shall be in the form of EXHIBIT A (the "New
Debentures", which together with the Outstanding Debentures shall be
collectively deemed to be the "Debentures" wherever such term is used), and
which are convertible into shares of the Company's common stock, $ .0001 par
value per share (the "Common Stock"). All references to $ (dollars) shall be to
US$ (United States Dollars);
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Company and the Purchasers desire to amend and modify the Purchase
Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy are hereby acknowledged, the Company and the Purchasers agree as
follows:
1.1 DOCUMENT MODIFICATION.
The Purchase Agreement (as was previously modified by the Amendment) shall
be amended and modified hereby to reflect the following:
(A) Paragraph 1.1(a)(i) shall be amended and modified such that the term
"Second Tranche" shall be deemed to mean $500,000 of New Debentures to
be purchased on the date hereof notwithstanding the fact that the
Effective Date shall not have occurred.
(B) Paragraph 2.1(q) shall be deemed to be deleted in its entirety and
replaced with the following "(q) SENIORITY. No indebtedness of the
Company is senior to the Debentures in right of payment, whether with
respect to interest or upon liquidation or dissolution, or otherwise,
except for transactions in an aggregate amount of up to $1,000,000
entered into pursuant to the form of Operating Agreement attached
hereto as EXHIBIT A and made a part hereof (the "Operating
Agreement").
The Outstanding Debentures shall be amended and modified hereby to reflect
the following:
(A) Section 3(a)(iv) shall be amended and modified to reflect that the
amount permitted for a default by the Company (solely with regard to
obligations other than the Debentures) giving rise to an Event of
Default under the Debentures shall be increased from twenty-five
thousand dollars ($25,000) to Two Hundred Fifty Thousand ($250,000)
Dollars; and
(B) Section 4(c)(ii)(c) the text of which reads "combine (including by way
of reverse stock split) outstanding shares of Common Stock into a
smaller number of shares" is hereby deemed to be deleted and of no
further force or effect.
(C) Section 10 shall be amended and modified to delete the reference to
the SBA Loan and to provide the Company the right to subordinate the
Debentures to the transactions pursuant to the Operating Agreement in
an amount of up to $1,000,000. The Security Agreement entered into
between Purchasers and the Company shall be governed by this amended
provision to the Debenture.
The Outstanding Warrants shall be amended and modified hereby to reflect
the following:
(A) Section 8(a)(iii) the text of which reads "combine outstanding shares
of Common Stock into smaller number of shares" is hereby deemed to be
deleted and of no further force or effect.
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1.2 THE CLOSING. In connection with the closing of the purchase of the New
Debentures, the parties shall deliver or cause to be delivered similar
documentation as was required to be delivered under the Purchase Agreement on
the Closing Date. Included in such documentation shall be (1) Debentures
representing a portion of the purchase price of the Second Tranche paid by such
Purchaser on the date hereof, as indicated below such Purchaser's name on the
signature page to this Agreement, registered in the name of such Purchaser, (2)
a Common Stock purchase warrant, in the form of EXHIBIT D, registered in the
name of such Purchaser, pursuant to which such Purchaser shall have the right to
acquire 250,000 shares of Common Stock as indicated below such Purchaser's name
on the signature page to this Agreement (collectively, the "WARRANTS"), (3) the
legal opinion of Robson, Ferber, Frost, Chan & ▇▇▇▇▇▇, LLP outside counsel to
the Company, in the form of EXHIBIT C; and (B) each Purchaser shall deliver its
portion of the Initial Purchase Price indicated below such Purchaser's name on
the signature page to this Agreement in United States dollars in immediately
available funds by wire transfer to an account designated in writing by the
Company for such purpose.
1.3 REPRESENTATIONS AND WARRANTIES. The Company warrants and represents to
the Purchasers that the representations and warranties of the Company contained
in the Purchase Agreement are be true and correct as of the date hereof and are
hereby restated as though made on and as of the date hereof.
1.4 LITIGATION; PROCEEDINGS. The Company hereby covenants and agrees that
it has entered into a settlement agreement with regard to that certain action
filed in the United States District Court, Southern District of New York as Case
No. 99 Civ. 10625 (LMM) entitled GEM MANAGEMENT, LTD. AND SUCCESSWAY HOLDINGS
LTD., PLAINTIFFS V. ACCORD ADVANCED TECHNOLOGIES, INC. (the "Gem Litigation"), a
true, correct and complete copy of which has been provided to the Purchasers.
The Company further represents and warrants that that none of the net proceeds
of the Subsequent Purchase Amount will be utilized to settle the Gem Litigation
and that the Company will issue ________shares of Common Stock in settlement of
the Gem Litigation.
2.1 RATIFICATION. Except as otherwise expressly amended and modified
hereby, the terms, conditions and covenants of the Purchase Agreement remain in
full force and effect and are otherwise hereby restated and ratified in all
respects.
3.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns. The
Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchasers.
4.1 DEFINED TERMS. Capitalized terms contained herein which are not
otherwise defined herein shall have the meanings ascribed to them in the
Purchase Agreement, as amended and modified.
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4.2 SURVIVAL. The representations, warranties, agreements and covenants
contained herein shall survive the Closing and the delivery and conversion or
exercise (as the case may be) of the Debentures and the Warrants.
4.3 EXECUTION. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
4.4 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Convertible Debenture Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
ACCORD ADVANCED TECHNOLOGIES, INC.
By: /s/ A. ▇▇▇▇ ▇▇▇▇▇▇
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Name: A. ▇▇▇▇ ▇▇▇▇▇▇
Title: President
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SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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AJW PARTNERS, LLC
By: SMS Group, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Debentures Purchase Price
due on the Closing Date: $350,000.00
Number of Shares underlying
Warrant due on the Closing Date ___,000
Address for Notice:
AJW Partners, LLC
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
With copies to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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NEW MILLENIUM CAPITAL PARTNERS II, LLC
By: First Street Manager II, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Debentures Purchase Price
due on the Closing Date: $150,000.00
Number of Shares underlying
Warrant due on the Closing Date ___,000
Address for Notice:
New Millenium Capital Partners II, LLC
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
With copies to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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