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EXHIBIT 10.105
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December 26, 2000
Fusion Capital Fund II, LLC
000 Xxxxxxxxxxx Xxxx Xxxxx
Xxxxx 0-000
Xxxxxxx, Xxxxxxxx 00000
Re: Common Stock Purchase Agreement
Gentlemen:
This letter is being delivered to confirm our understanding with respect to
certain issues under that certain Common Stock Purchase Agreement dated as
of October 9, 2000 (the "Purchase Agreement"), by and between USURF
AMERICA, INC., a Nevada corporation ("Company") and FUSION CAPITAL FUND II,
LLC, an Illinois limited liability company ("Fusion"), with respect to the
purchase by Fusion of up to $10.0 million of common stock of the Company.
All capitalized terms used in this letter that are not defined in this
letter shall have the meanings set forth in the Purchase Agreement.
The Company and Fusion agree that the first sentence of Section 11(k)(iii)
of the Purchase Agreement is hereby amended and restated in its entirety as
follows: "In the event that the Commencement shall not have occurred on or
before March 30, 2001, due to the failure to satisfy the conditions set
forth in Sections 6 and 7 above with respect to the Commencement (and the
nonbreaching party's failure to waive such unsatisfied condition(s)), the
nonbreaching party shall have the option to terminate this Agreement at the
close of business on such date or thereafter without liability of any party
to any other party."
The Company and Fusion agree that the second sentence of Section 7(b) of
the Purchase Agreement is hereby amended and restated in its entirety as
follows: "The Warrants shall be exercisable for a period of five (5) years
from the Commencement Date, granting the Buyer the right to purchase
645,000 shares of Common Stock (the "Warrant Shares") at the following
prices: (1) 215,000 Warrant Shares for $0.25 per share, (2) 215,000 Warrant
Shares for $0.35 per share and (3) 215,000 Warrant Shares for $0.45 per
share."
The Company and Fusion additionally agree that the Company shall issue to
Fusion, on or before January 8, 2001, the 800,000 Commitment Shares. The
Commitment Shares shall be issued and delivered to Fusion at the address
listed above by the Company's transfer agent in certificated form. The
Commitment shares so delivered shall bear the restrictive legend set forth
in the Transfer Agent Instructions attached as Exhibit G to the Purchase
Agreement. Fusion agrees that is shall not transfer or sell the Commitment
Shares until the Maturity Date or until the Purchase Agreement has been
terminated, provided, however, that the restrictions set forth in this
sentence shall not apply: (i) in connection with any transfers to or among
affiliates (as defined in the Securities Exchange Act of 1934, as amended),
(ii) in connection with any pledge in connection with a bona fide loan or
margin account, or (iii) if an Event of Default has occurred, or any event
which, after notice and/or lapse of time, would become an Event of Default,
including any failure by the Company to timely issue Purchase Shares under
the Purchase Agreement. The Company and Fusion agree that in the event the
Company fails to issue and deliver to Fusion the Commitment Shares on or
before January 8, 2001, Fusion shall, in addition to all other rights and
remedies available to it, have the right to immediately terminate the
Agreement, and the Company shall be obligated to immediately deliver to
Fusion, in addition to the Commitment Shares, the Warrants.
Very truly yours,
USURF AMERICA, INC.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Chief Executive Officer
ACKNOWLEDGED AND AGREED:
FUSION CAPITAL FUND II, LLC
By: /s/ Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx
Managing Member
