AMENDMENT NUMBER 1 TO AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT
Exhibit
10.31
AMENDMENT
NUMBER 1 TO
AMENDED
AND RESTATED SECURITIES PURCHASE AGREEMENT
THIS
AMENDMENT AGREEMENT (the
“Amendment”) is
entered into as of January ____, 2007, between MM²
GROUP, INC., a
corporation organized and existing under the laws of the State of New Jersey
(the “Company”),
and
CORNELL
CAPITAL PARTNERS, LP a
Delaware limited partnership (the
“Investor”).
WHEREAS,
the
Company and the Investor are parties to a certain Amended and Restated
Securities Purchase Agreement dated as of July 20, 2006 (the “Agreement”);
and
WHEREAS,
the
parties wish to amend the Agreement as set forth below.
NOW,
THEREFORE,
it is
agreed:
I.
Amendments.
A. AMENDMENT
OF THE 6th“WHEREAS”
CLAUSE.
The
sixth (6th)
“WHEREAS” Clause of the Agreement is hereby deleted in its entirety and the
following language shall replace said section of the Agreement:
WHEREAS,
the
parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Buyer(s), as provided herein,
and the Buyer(s) shall purchase up to Two Million Five Hundred Thousand Dollars
($2,500,000) of secured convertible debentures (the “Convertible
Debentures”),
which
shall be convertible into shares of the Company’s Class A common stock, no par
value per share (the “Common
Stock”)
(as
converted, the “Conversion
Shares”)
of
which One Million Two Hundred Fifty Thousand Dollars ($1,250,000) was previously
funded pursuant to the secured convertible debenture issued by the Company
to
the Investor on or about April 1, 2005, which has been amended and restated
on
July 20, 2006 to reflect the Assignment and Assumption Agreement and accrued
but
unpaid interest (the “First
Closing”)
and
Six Hundred Twenty-Five Thousand Dollars ($625,000) shall be funded two (2)
business days prior to the date the Registration Statement (the “Registration
Statement”)
is
filed with the SEC (the “Second
Closing”),
and
Six Hundred Twenty-Five Thousand Dollars ($625,000) shall be funded two (2)
business days prior to the date the Registration Statement is declared effective
by the SEC (the “Third
Closing”)
(individually referred to as a “Closing”
collectively referred to as the “Closings”),
for a
total purchase price of up to Two Million Five Hundred Thousand Dollars
($2,500,000), (the “Purchase
Price”)
in the
respective amounts set forth opposite each Buyer(s) name on Schedule I (the
“Subscription
Amount”);
B. AMENDMENT
TO SECTION 1(b).
Section
1(b) of the Agreement is hereby deleted in its entirety and the following
language shall replace said Section 1(b) of the Agreement:
Section
1(b): Closing
Date. The
First
Closing of the purchase and sale of the Convertible Debentures previously took
place on or about April 1, 2005 (the “First
Closing Date”).
The
Second Closing of the purchase and sale of the Convertible Debentures shall
take
place at 10:00 a.m. Eastern Standard Time two (2) business days prior to the
date the Registration Statement is filed with the SEC, subject to notification
of satisfaction of the conditions to the Second Closing set forth herein and
in
Sections 6 and 7 below (or such later date as is mutually agreed to by the
Company and the Buyer(s)) (the “Second
Closing Date”),
and
the Third Closing of the purchase and sale of the Convertible Debentures shall
take place at 10:00 a.m. Eastern Standard Time two (2) business days prior
to
the date the Registration Statement is declared effective by the SEC, subject
to
notification of satisfaction of the conditions to the Third Closing set forth
herein and in Sections 6 and 7 below (or such later date as is mutually agreed
to by the Company and the Buyer(s)) (the “Third
Closing Date”)
(collectively referred to a the “Closing
Dates”).
The
Closings shall occur on the respective Closing Dates at the offices of Yorkville
Advisors, LLC, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(or
such other place as is mutually agreed to by the Company and the
Buyer(s)).
C. AMENDMENT
TO SECTION 7.
Section
7 of the Agreement is hereby deleted in its entirety and the following language
shall replace said Section 7 of the Agreement:
Section
7: CONDITIONS
TO THE BUYER’S OBLIGATION TO PURCHASE.
(a)
The
obligation of the Buyer(s) hereunder to accept the Convertible Debentures at
the
Second Closing is subject to the satisfaction, at or before the Second Closing
Date, of each of the following conditions:
(i) The
Common Stock shall be authorized for quotation on the OTCBB, and trading in
the
Common Stock shall not have been suspended for any reason.
(ii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 above, in which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Second Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date) and the Company shall have performed, satisfied
and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Second Closing Date.
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(iii) The
Company shall have executed and delivered to the Buyer(s) the Convertible
Debentures in the respective amounts set forth opposite each Buyer(s) name
on
Schedule I attached hereto.
(iv) The
Company shall file the registration statement with the SEC in compliance with
the rules and regulations promulgated by the SEC for filing thereof within
two
(2) days of the Second Closing Date.
(v) The
Company shall have certified, in a certificate executed by two officers of
the
Company and dated as of the Second Closing Date, that all conditions to the
Second Closing have been satisfied.
(b) The
obligation of the Buyer(s) hereunder to accept the Convertible Debentures at
the
Third Closing is subject to the satisfaction, at or before the Second Closing
Date, of each of the following conditions:
(i) The
Common Stock shall be authorized for quotation on the OTCBB, and trading in
the
Common Stock shall not have been suspended for any reason.
(ii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 above, in which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Second Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date) and the Company shall have performed, satisfied
and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Third Closing Date.
(iii) The
Company shall have executed and delivered to the Buyer(s) the Convertible
Debentures in the respective amounts set forth opposite each Buyer(s) name
on
Schedule I attached hereto.
(iv) The
Registration Statement shall be declared effective by the SEC within two (2)
days of the Third Closing Date.
(v) The
Company shall have certified, in a certificate executed by two officers of
the
Company and dated as of the Third Closing Date, that all conditions to the
Third
Closing have been satisfied.
II. Miscellaneous.
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A.
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Except
as provided hereinabove, all of the terms and conditions contained
in the
Agreement shall remain unchanged and in full force and
effect.
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B.
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This
Amendment is made pursuant to and in accordance with the terms and
conditions of the Agreement.
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C.
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All
capitalized but not defined terms used herein shall have those meanings
ascribed to them in the Agreement.
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D. All
provisions in the Agreement and any amendments, schedules or exhibits thereto
in
conflict with this Amendment shall be and hereby are changed to conform to
this
Amendment.
[REMAINDER
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be executed by the undersigned,
thereunto duly authorized, as of the date first set forth above.
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COMPANY:
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MM²
GROUP, INC.
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By: ________________________
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Name ▇▇▇▇
▇▇▇▇▇▇
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Title: President
& CEO
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CORNELL
CAPITAL PARTNERS, LP
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By:
Yorkville Advisors LLC
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Its:
General Partner
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By: ________________________
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Name ▇▇▇▇
▇▇▇▇▇▇
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Title: Portfolio
Manager
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