SECOND AMENDMENT
SECOND AMENDMENT dated November 15, 2000 (the "Second Amendment") to the
Securities Purchase Agreement dated April 14, 2000 (the "Purchase Agreement")
and related Transaction Documents (as defined in the Purchase Agreement) between
World Wide Wireless Communications, Inc. (the "Company") and each of: Esquire
Trading & Finance, Inc. ("Esquire"), Amro International, S.A. ("Amro"), Xxxxxxx
Trust Reg. ("Xxxxxxx"), The Endeavour Capital Investment Fund, S.A.
("Endeavour"), Nesher, Ltd. ("Nesher"), The Keshet Fund, L.P. ("Keshet Fund")
Talbiya B. Investments, Ltd. ("Talbiya"), and Keshet, L.P. ("Keshet"). Esquire,
Amro, Xxxxxxx, Endeavour, Keshet Fund, Talbiya and Keshet are each referred to
herein as a "Purchaser." All capitalized terms not otherwise defined herein
shall have the meaning ascribed to such terms in the Purchase Agreement. The
Transaction Documents have been previously amended by an amendment among the
Purchasers and the Company dated August 10, 2000 (the "Amendment").
WHEREAS, the Purchasers desire to continue their investment in the Company
as contemplated by the Purchase Agreement as amended hereby;
WHEREAS, the Company seeks (i) additional time to perform certain
obligations under the Transaction Documents, (ii) modification of certain terms
and conditions of the Transaction Documents, and (iii) to gain the Purchasers'
waivers of defaults and breaches with respect to the Company's failure to
perform its obligations under the Transaction Documents in effect prior to the
Second Amendment Closing Date;
WHEREAS, the Company, as an inducement to the Purchasers to agree to the
terms contained herein, has offered to increase the Principal Amount of the
Debentures held by the Purchasers and issue additional restricted Common Stock
to the Purchasers; and
WHEREAS, the Purchasers agree to amend the Transaction Documents in
accordance with the Company's requests and agree to waive any breach by the
Company occurring prior to the Second Amendment Closing Date;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, and for other good and valuable consideration, the adequacy
and receipt of which are hereby acknowledged, the Company and each Purchaser
hereby restate their respective representations, warranties and covenants as
contained in the Transaction Documents as of the date hereof, agree the
following terms and conditions and agree to amend the Transaction Documents as
follows:
1 In consideration of their entering this Second Amendment, the Company shall
issue and deliver four million restricted shares of Common Stock (the
"Amended Shares") to the Purchasers in the amounts listed next to each
Purchaser's name on Amended Schedule 2 attached hereto. Such Amended Shares
shall be included in the shares to be registered by the Company pursuant to
the Registration Rights Agreement and shall be deemed
"Registrable Securities" for all purposes under the Transaction Documents.
The Company represents and warrants that such Amended Shares have been duly
authorized, and when issued in accordance with the terms hereof, shall be
validly issued, fully paid and nonassessable, free and clear of all liens,
encumbrances, security interests, charges and rights of first refusal of
any kind except as may be imposed by the restricting legend attached to
said shares prior to their registration.
2 On the Second Amendment Closing Date, the Company shall issue and deliver
to each Purchaser a new Debenture certificate (in the Principal Amount
identified on Amended Schedule 2 attached hereto) reflecting the amendments
identified in Paragraphs 6 and 7 below with an Original Issue Date (as
defined therein) of April 14, 2000. Within 15 days of the Second Amendment
Closing Date, each Purchaser shall return to the Company its Initial Shares
and any shares acquired by exercise of the Initial Warrants previously
issued to it by the Company pursuant to Article 1.2 of the Purchase
Agreement. The aggregate number of shares thus returned to the Company in
this manner will be 760,000.
3 The Amendment and this Second Amendment shall each be deemed, for all
purposes, to be a "Transaction Document" as defined in the Securities
Purchase Agreement.
4 The definitions of "Effectiveness Date" and "Filing Date" in the
Registration Rights Agreement are hereby deleted and replaced with:
"Effectiveness Date" means May 15, 2001.
"Filing Date" means December 15, 2000.
Each Purchaser hereby waives any remedies which may have accrued in favor
of such Purchaser against the Company or its officers, directors or agents
as a result of the Company's failure to comply, prior to the Second
Amendment Closing Date, with the provisions of Sections 3(a), 3(b) and
7(e)(A) of the Registration Rights Agreement. Notwithstanding the
foregoing, if the Company fails to comply with the provisions of Sections
3(a), 3(b) and 7(e)(A) by the amended Effectiveness Date, (i) such waiver
shall be of no further force and effect, and (ii) all the rights and
remedies available to the Purchasers shall be based upon the unamended
Effectiveness Date (August 14th, 2000).
5 The Company shall hold a shareholders' meeting no later than March 1, 2001
to obtain shareholder approval of the Company's agreement under the
Transaction Documents to reserve authorized Common Stock in a number of
shares no less than the sum of (a) 200% of the amount issuable to the
Purchasers under the Debentures and (b) 100% of the amount issuable under
the Warrants. Where shareholder approval is required, the Company and its
officers and directors agree to use their best efforts to secure such
approval. By letter agreement attached hereto as Exhibit A, certain of the
Company's officers and directors have agreed to vote their shares in favor
of this requirement. The
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Company's failure to comply with the provisions of this Section 5 shall be
deemed an event of default under the Debentures.
6 Paragraph 4(c)(i) of the Debentures shall be amended and restated as
follows:
"The conversion price for the Debentures (the "Conversion Price") in
effect on any Conversion Date shall be the lesser of (A) $.64 (the
"Fixed Conversion Price") and (B) an amount equal to 85% of the
average Per Share Market Value for the five (5) consecutive Trading
Days immediately prior to the Conversion Date subject to the following
provisions:
(a) in any Conversion Notice, a Holder may specify a Conversion
Price higher than the Conversion Price then in effect;
(b) if during any period (a "Black-out Period"), a Holder is
unable to trade immediately any Common Stock issued or issuable
upon conversion of Debentures due to the postponement of filing,
or delay or suspension of effectiveness of a registration
statement, or because the Company has otherwise informed such
Holder that an existing prospectus cannot be used at that time in
the sale or transfer of such Common Stock, such Holder shall have
the option, but not the obligation, of using the Conversion Price
applicable on any Conversion Date within ten Trading Days
following the expiration of the Black-out Period, or of using any
Price selected by such Holder that would have been applicable on
any hypothetical Conversion Date earlier in the Black-out Period
or within the ten Trading Days thereafter; and
(c) in no event shall the Conversion Price be below the Floor
Price. "Floor Price" shall mean the Fixed Conversion Price for
the period beginning on October 1, 2000 and ending on October 14,
2000, $0.50 from the period beginning on October 14, 2000 and
ending on May 30, 2001, and zero thereafter.
Notwithstanding the foregoing, if the Company's aggregate revenues for
the last three quarters of the year 2000 and the first quarter of the
year 2001, based on the company's audited financial statements for the
year 2000 and the unaudited statement for the first quarter of the
year 2000, are less than $13.5 million, then from and after May 14,
2001 the Floor price shall be zero. Such revenues shall be presumed to
be less than $13.5 million in the event the Company fails to provide
the Purchasers with the audited statement for the year 2000 and the
unaudited statement for the first quarter of 2001 by May 14, 2001.
7 Paragraph 4B is hereby added to the Debenture:
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"4B. Redemption at the Company's Election.
(a) At any time the Per Share Market Value of the Common Stock is less than
$1.00, as long as the Company has not received a Conversion Notice from the
holder and has not materially breached any of the material representations,
warranties, and covenants contained herein or in any related agreements,
the Company shall have the right, subject to the terms and conditions
below, in its sole discretion, to redeem ("Redemption at Company's
Election"), from time to time, any or all of the Debentures; provided the
Company shall first provide five (5) days advance written notice as
provided in subparagraph 4B(a)(ii) below. If the Company elects to redeem
some, but not all, of the Debentures, the Company shall redeem a pro rata
amount, based upon current holdings, from each holder of the Debentures. If
the Company fails to complete a Redemption at Company's Election, the
Company's right to that and any other such further redemption is forfeited.
(i) Redemption Price At Company's Election. The "Redemption Price
at Company's Election" shall be calculated as 120% of the Principal
Amount of, and 100% of the unpaid interest accrued on, the Debentures
being redeemed pursuant to this Section 5(a). Each holder shall be
entitled to a pro-rated portion of the Redemption Price at Company's
Election determined by the Principal Amount of Debentures held by such
holder as a percentage of the aggregate Principal Amount of all
Debentures outstanding as of the date the Company dispatches the
notice pursuant to clause 4B(ii), below.
(ii) Mechanics of Redemption at Company's Election. The Company
shall effect a redemption by giving five (5) days prior written notice
("Notice of Redemption at Company's Election"), to all holders of the
Debentures at the address listed next to such holders names on
Schedule 2 attached to the Second Amendment between the Company and
the Purchasers named therein dated November 15, 2000 (or such other
address which has been notified to the Company in writing), which
Notice of Redemption at Company's Election shall be deemed to have
been delivered three (3) business days after the Company's mailing (by
overnight or two (2) day courier, with a copy by facsimile) of such
Notice of Redemption at Company's Election. Such Notice of Redemption
at Company's Election shall indicate:
(1) the total Principal Amount of Debentures to be redeemed,
which amount shall not be less than $1,000,000.00;
(2) the prorated amount of such Holder's Debentures being
redeemed;
(3) the date which such redemption is to become effective (the
"Date of Redemption At Company's Election"), which date shall be
no more than 5
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Business Days after the date of the Company's dispatch of the
Notice of Redemption at Company's Election;
(4) the Holder's pro-rata share of the Redemption Price At
Company's Election; and
(5) shall be accompanied by certificate executed by an officer of
the Company confirming the availability of immediately available
funds in respect of the redemption as required by paragraph (b)
below.
Notwithstanding the above, a Holder may convert into Common
Stock, prior to the close of business on the Date of Redemption
at Company's Election, any Debentures which it is otherwise
entitled to convert, including Debentures that have been selected
for Redemption at Company's Election pursuant to this Section 4B.
(b) Company Must Have Immediately Available Funds or Credit Facilities. The
Company shall not be entitled to send any Notice of Redemption at Company's
Election and begin the redemption procedure under this Section 4B unless it
has, in legally available funds:
(i) the full amount of the redemption price in cash or cash
equivalents, available in a demand or other immediately available
account in a bank or similar financial institution; or
(ii) immediately available credit facilities, in the full amount
of the redemption price with a bank or similar financial institution;
or
(iii) a combination of the items set forth in (i) and (ii) above,
aggregating the full amount of the aggregate redemption price.
(c) Payment of Redemption Price. Each holder shall, upon receipt of such
holder's prorated amount of the Redemption Price at Company's Election,
deliver its Debenture to the Company, and, if the Company has not redeemed
the total outstanding Principal Amount of such Debenture, the Company shall
issue a new Debenture reflecting any unredeemed Principal Amount.
(d) Failure to Redeem. If the Company sends a Notice of Redemption at
Company's Election and fails to completely redeem Debentures in accordance
with such notice, the Company shall thereby forfeit its right to redemption
under the instant notice and the Company shall lose the right to issue any
additional Notice of Redemption at Company's Election."
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8 Subject to the Company's performance of its obligations under the
Transaction Documents as amended hereby, and the accuracy of the Company's
representations and warranties made as of the Second Amendment Closing
Date, the Purchasers, the agents, officers, directors, employees and
assigns hereby release, waive and covenant not to xxx the Company or any of
its directors, officers, employees or agents in connection with any and all
direct liability of the Company arising out of or related to the
Transaction Documents for any act or omission which may have occurred at
any time prior to the execution of this Second Amendment.
9 The Company shall pay the reasonable fees and expenses of Stroock & Stroock
& Xxxxx, counsel for the Purchasers, in connection with the negotiation and
performance of this Second Amendment.
10 As a condition precedent to the obligations of the Purchasers under this
Second Amendment, the Company shall have delivered to the Purchasers
opinions from outside counsel to the Company addressed to the Purchasers,
in form and substance satisfactory to the Purchasers, opining as to (i) the
Company's authority to execute and deliver this Second Amendment, (ii) the
enforceability of this Second Amendment, (iii) the continued enforceability
of the Transaction Documents (as amended hereby) to which the Company is a
party, and (iv) such other customary legal matters as the Purchasers shall
request.
All provisions of the Transaction Documents as amended by the Amendment
remain in full force and effect, except as explicitly amended hereby. This
Second Amendment 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 all 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed by their respective authorized persons as of the date first
indicated above.
WORLD WIDE WIRELESS
COMMUNICATIONS, INC.
By:____________________________________
Name:
Title:
ESQUIRE TRADING & FINANCE, INC.
By:____________________________________
Name:
Title:
AMRO INTERNATIONAL, S.A.
By:
-------------------------------------
Name:
Title:
XXXXXXX TRUST REG.
By:
-------------------------------------
Name:
Title:
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THE ENDEAVOUR CAPITAL INVESTMENT
FUND, S.A.
By: Endeavour Management, Inc.
By:
--------------------------------
Name:
Title:
THE KESHET FUND, L.P.
By:
-------------------------------------
Name:
Title:
KESHET, L.P.
By:
-------------------------------------
Name:
Title:
NESHER, LTD.
By:
-------------------------------------
Name:
Title:
TALBIYA B. INVESTMENTS LTD.
By:
-------------------------------------
Name:
Title:
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AMENDED SCHEDULE 2
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Schedule 2: Securities Issuance Upon the Second Amendment Closing Date
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Increase in Principal Number of Principal Amount
Name of Purchaser Address of Purchaser Amount Debentures Consideration Shares of Debenture to be
----------------- -------------------- --------------------- -------------------- -------------------
to be Issued Issued
------------- ------
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Esquire Trading & Xxxxxxxxxxxxxxxxxx 00 $412,000 640,000 $1,080,000
Finance Inc. Baar, Xxxxxxxxxxx
XX0000
Fax No.: 000-0000000
Amro c/o Ultra Finance Ltd. $900,000 1,428,000 $2,400,000
International S.A. Grossmuenster Xxxxx 00,
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxx
CH8022
Xxxxxxx Trust Reg. c/o Trevisa-Treuhand- $356,000 559,200 $940,000
Xxxxxx
Xxxxxxxxxxx 0
0000 Xxxxxxxxxxx
Balzers, Liechtenstien
The Endeavour Cumberland House, #27 $300,000 892,857 $1,500,000
Capital Investment Cumberland Street, P.O.
Fund, S.A. Box N-10818, Nassau,
New Providence, The
Bahamas
Fax No.: 972-2-500-
3318/9
Nesher, Ltd. c/o Ragnall House $28,000 83,200 $140,000
00 Xxxx Xxxx
Xxxxxxx, Xxxx xx Xxx
0X0 0X0, Xxxxxx
Xxxxxxx
Keshet, L.P. Seameadow House $70,000 208,333 $350,000
XxxxxXxxx Xxxxxxx
X.X. Xxx 000
Xxxx Xxxx, Xxxxxxx
Xxxxxxx Virgin Islands
The Keshet Fund, c/o KCM, LLC $42,000 125,000 $210,000
L.P. 000 X. 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Talbiya B. Ragnall House, 18 Peel $20,000 59,523 $100,000
Investments Xxx. Xxxx, Xxxxxxx, Xxxx xx
Xxx XX0 0XX
Xxxxx: $2,128,000 3,996,113 $6,720,000
========= ========= ==========
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EXHIBIT A
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SHAREHOLDER UNDERTAKING(1)
SHAREHOLDER UNDERTAKING dated November __, 2000 (the "Undertaking"), by
_______________, ___________________, ___________________, ____________________,
_______________________[...] (each a "Shareholder," and collectively the
"Shareholders") pursuant to Paragraph 5 of the Second Amendment dated November
__, 2000 between World Wide Wireless Communications, Inc. and the Purchasers
named therein.
WHEREAS, the undersigned Shareholders shall personally benefit from the
Company's entering into the Second Amendment; and
WHEREAS, the Company's achievement of such benefits is contingent on, among
other things, the satisfaction of the conditions expressed in Paragraph 5 of the
Second Amendment;
NOW, THEREFORE, in consideration of the Purchasers entering into the Second
Amendment with the Company, and for other good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, the undersigned
Shareholders certify and agree:
1. Representations of Shareholders. Each Shareholder represents that (a) he
is the holder and/or beneficial owner of the number of shares (the "Shares") of
common stock, par value $.[__] per share (the "Common Stock"), of World Wide
Wireless Communications, Inc., set forth opposite his name on the signature page
below, with sole and exclusive power to vote such shares, and (b) he has full
power and authority to execute, deliver and carry out this Undertaking.
2. Agreement to Vote Shares. Each Shareholder shall vote, or cause to be
voted, all such Shareholder's Shares, and any shares of Common Stock hereafter
acquired, whether upon the exercise of options or otherwise, at any meeting of
the shareholders of the Company called to vote thereon or at any adjournment
thereof, in favor of the reserve of authorized Common Stock expressed in
Paragraph 5 of the Second Amendment attached hereto, such reserve to be
maintained at all times in an amount not less than the sum of (a) 200% of the
amount issuable to the Purchasers under the Debentures and (b) 100% of the
amount issuable under the Warrants.
3. Agreement Not to Transfer Shares. No Shareholder shall during the term
of this Undertaking voluntarily sell, assign or otherwise dispose of any of such
Shareholder's Shares, or any shares of Common Stock hereafter acquired, or enter
into any agreement with respect to any such sale, assignment or other
disposition to any person who has not: i) certified, in form satisfactory to the
Purchasers, that they, as a transferee, have the power to sell, assign or
dispose of the shares, and ii) executed, in form satisfactory to the Purchasers,
this Undertaking, or
-------------------
(1) Unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed thereto in the Second Amendment and the Purchase
Agreement.
alternatively, an agreement to be bound by the terms of this Undertaking.
4. Specific Performance. Each Shareholder acknowledges that it will be
impossible to measure in money the damage to the Purchasers if he fails to
comply with any of the obligations imposed by this Undertaking, that every such
obligation is material and that, in the event of any such failure, the
Purchasers will not have an adequate remedy at law or in damages. Accordingly,
each Shareholder consents to the issuance of an injunction or the enforcement of
other equitable remedies against such Shareholder at the suit of the Purchaser
or Purchasers without bond or other security, to compel performance of all the
terms hereof, and waives the defense of relief in damages.
5. Successors and Assigns. This Undertaking shall be binding upon and shall
inure to the benefit of the Purchasers and their respective heirs, successors
and assigns.
6. Notice. All notices hereunder shall be in writing and shall be deemed
given, on the date received, if delivered by hand, or mailed by certified or
registered mail (return receipt requested) to the Purchasers at the addresses
provided therefor in the Second Amendment and, to the Shareholders, at the
address provided next to each such Shareholder's name below.
7. Term. This Undertaking shall terminate upon the voting of the Common
Stock by the Shareholders in accordance with Paragraph 2 hereof.
8. Miscellaneous. (a) This Undertaking shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York without regard to principles of conflicts of law thereof.
(b) If any provision of this Undertaking or the application of any
such provision to any person or circumstance shall be held invalid by a court of
competent jurisdiction, the remainder of this Undertaking including the
remainder of the provision held invalid, or the application of such provision to
persons or circumstances other than those as to which it is held invalid, shall
not be affected.
(c) This Undertaking may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the individual parties hereto have personally executed
this Undertaking as of the date first above written.
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Name: Number of Shares Owned
Address:
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Name: Number of Shares Owned
Address:
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Name: Number of Shares Owned
Address:
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Name: Number of Shares Owned
Address:
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Name: Number of Shares Owned
Address:
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Name: Number of Shares Owned
Address:
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