AMENDMENT NO. 1 TO THE SUBSCRIPTION AGREEMENT
This Amendment Xx. 0 ("Xxxxxxxxx Xx. 0") dated as of August
23, 1999, by and among Edwardstone & Company, Incorporated, a Delaware
corporation ("Edwardstone"), MidMark Capital, L.P., a Delaware limited
partnership ("MidMark", and together with Edwardstone, "Purchasers") and Vertex
Industries, Inc. a New Jersey corporation (the "Company"), amends the
Subscription Agreement, dated June 21, 1999, by and among the Company and the
Purchasers (the "Subscription Agreement"). Capitalized terms used and not
otherwise defined herein shall have the meanings assigned them in the
Subscription Agreement.
RECITALS
WHEREAS, the Company and the Purchasers desire to amend
certain provisions of the Subscription Agreement in the manner and as more fully
set forth herein; and
WHEREAS, the Company and the Purchasers have consented to
amending the Subscription Agreement in the manner set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements set
forth herein and in the Subscription Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. The first and second whereas clauses of the Subscription Agreement
are hereby amended and replaced in their entirety to read as follows:
"WHEREAS, Edwardstone wishes to purchase from the Company, and the
Company wishes to sell to Edwardstone five million five hundred
eighteen thousand sixty four (5,518,064) shares (the "Edwardstone
Shares") of the Company's common stock, par value $.005 per share ("VTX
Common Stock"), on the terms and subject to the conditions set forth in
this Agreement;
WHEREAS, MidMark wishes to purchase from the Company, and the Company
wishes to sell to MidMark four million nine hundred thirty one thousand
five hundred seventy eight (4,931,578) shares (the "MidMark Shares",
and together with the Edwardstone Shares, the "Shares") of VTX Common
Stock, on the terms and subject to the conditions set forth in this
Agreement; and"
2. Section 1.02 of the Subscription Agreement is hereby amended and
replaced in its entirety to read as follows:
"Purchase Price. The aggregate purchase price for the Shares is
$10,000,000 (the "Purchase Price), payable in immediately available
United States funds at the Closing in the manner provided in Section
1.03."
3. The second sentence of Section 1.03 of the Subscription Agreement is
hereby amended and replaced in its entirety to read as follows:
"At the Closing, Edwardstone and its Affiliates will pay $5,000,000 and
MidMark will pay $5,000,000, each by wire transfer of immediately
available funds to such account as the Company may reasonably direct by
written notice delivered to Purchasers by the Company at least two (2)
Business Days before the Closing Date."
4. Section 3.07 of the Subscription Agreement is hereby amended and
replaced in its entirety to read as follows:
"14(f) Information Statement. No information provided by Purchasers to
the Company in connection with the preparation of the information
statement to be transmitted to the Company's shareholder's pursuant to
Section 14(f) of the Exchange Act and Rule 14f-1 thereunder (as may be
amended or supplemented from time to time, the "14(f) Information
Statement") shall contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they were
made, not misleading."
5. All references to the Subscription Agreement shall be deemed to
refer to the Subscription Agreement as amended by this Amendment No. 1.
6. Except as specifically amended hereby, the original provisions of
the Subscription Agreement remain in full force and effect.
7. This Amendment No. 1 may be executed in counterparts, each of which
shall be deemed as original, but all of which shall constitute the same
instrument.
8. This Amendment No. 1 shall be governed by the laws of the State of
New York.
9. This Amendment No. 1 shall be effective as of the date hereof.
IN WITNESS WHEREOF, each party hereto has signed this Amendment No. 1,
or caused its duly authorized officer or general partner to sign this Amendment
No. 1, as of the date first above written.
VERTEX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: CEO and President
EDWARDSTONE & COMPANY, INC.
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Chief Executive Officer
MIDMARK CAPITAL, L.P.
by MidMark Associates, Inc.
as General Partner of
MidMark Capital, L.P.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director