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FIRST AMENDMENT TO
SECURED CONVERTIBLE DEBENTURE PURCHASE AGREEMENT
Among
ACCORD ADVANCED TECHNOLOGIES, INC.
and
THE INVESTORS SIGNATORY HERETO
Dated as of July __, 2000
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FIRST AMENDMENT TO SECURED CONVERTIBLE DEBENTURE PURCHASE AGREEMENT (this
"Agreement"), dated as of July 14, 2000, among ACCORD ADVANCED TECHNOLOGIES,
INC. a Nevada corporation (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 __, 2000 (the
"Purchase Agreement") pursuant to which the Company issued and sold to the
Purchasers, and the Purchasers did purchase as the First Tranche (as defined in
the Purchase Agreement") an aggregate principal amount of $250,000 of the
Company's 12% Secured Convertible Debentures, due June 30, 2001;
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, the Purchasers would purchase an additional $750,000 of the
Company's 12% Secured Convertible Debentures, due June 30, 2001;
WHEREAS, the parties wish to increase the amount of the First Tranche and
reduce the amount of the Second Tranche;
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 $250,000 (the "Additional Funding") of the
Company's 12% Secured Convertible Debentures, due June 30, 2001, which shall be
in the form of Exhibit A (the "Debentures"), 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 The Closing.
Paragraph 1.1(a)(i) of the Purchase Agreement shall be amended and
modified hereby to reflect the following:
(A) The term "First Tranche" shall be deemed to include the $250,000
of Debentures to be purchased on the date hereof and the term
"Initial Purchase Price" shall be amended and modified to mean
$500,000.
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(B) The term "Subsequent Purchase Price" shall be amended and
modified to be the "Subsequent Payment Price" which amount shall
be $500,000 instead of $750,000.
1.2 In connection with the closing of the Additional Funding, 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 Additional
Funding 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.
3.1 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 covenants and agrees that the net proceeds of the Second
Tranche funded to the Company are being utilized solely for the cost of
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.
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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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
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SIGNATURE PAGE FOR PURCHASER FOLLOWS]
AJW PARTNERS, LLC
By: SMS Group, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Debentures Purchase Price
due on the Closing Date: $___,000.00
Debentures Purchase Price
due after the Effective Date: $___,000.00
Number of Shares underlying
Warrant due on the Closing Date ___,000
Number of Shares underlying
Warrant due after the Effective 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.
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: $____,000.00
Debentures Purchase Price
due after the Effective Date: $____,000.00
Number of Shares underlying
Warrant due on the Closing Date ___,000
Number of Shares underlying
Warrant due after the Effective 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.