Exhibit 5
AMENDMENT NO. 1 TO
SECURITIES PURCHASE AGREEMENT
This Amendment No. 1 to Securities Purchase Agreement (this "Amendment") is
dated as of September 8, 2006, by and among Xxxxxx Electronics, Inc., a New York
corporation (the "Company"), and each purchaser identified on the signature
pages hereto (each, including its successors and assigns, a "Purchaser" and
collectively the "Purchasers").
WHEREAS, the parties previously entered into a Securities Purchase
Agreement dated as of April 17, 2006 (the "Purchase Agreement") and related
transaction documents annexed as exhibits to the Company's definitive proxy
statement (the "Proxy Statement") filed with the Securities and Exchange
Commission on May 26, 2006 (such related transaction documents, together with
the Purchase Agreement, are referred to herein as the "Transaction Documents")
in connection with the purchase by the Purchasers of securities of the Company,
all as more fully described in the Purchase Agreement;
WHEREAS, the parties desire to amend the Transaction Documents as set forth
herein and to consummate the transactions described in the Transaction Documents
in accordance with the terms of the Transaction Documents, as amended.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed as follows:
1. All capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Transaction Documents.
2. The Purchase Agreement is hereby amended as follows:
a. Section 2.3(a)(iv) shall be added to read as follows: "(iv)
Shareholder Approval shall have been obtained for the Company's
proposed one-for-four reverse stock split of the Company's outstanding
Common Stock."
b. Section 2.3(b)(vii) shall be amended to read as follows: "(vii) D.
Xxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxx Xxxxxx, and three other Directors
to be appointed by the Purchasers shall have each been appointed as
members of the Board of Directors of the Company;"
c. Section 2.3(b)(xv) shall be added to provide as follows: "(xv) the
Company shall prepare and deliver to the Purchasers and Trinity an
operational and financial restructuring plan acceptable to the
Purchasers and Trinity in their sole discretion."
d. Section 4.12(c) shall be amended to change the date "August 15, 2006"
contained therein to read "October 28, 2006."
e. Section 5.1 shall be amended to change the date "August 31, 2006"
contained therein to read "November 15, 2006."
3. The parties hereto acknowledge that, in an effort to address Nasdaq voting
rights rules, following the consummation of the Purchase Agreement, the
Purchasers will have the right to appoint six of nine directors of the
Company, instead of six of seven, as provided in the Purchase Agreement.
The parties further acknowledge and agree that, if the Transaction is
approved by the Company's stockholders, they shall take all reasonable or
necessary steps to achieve this result, and the Transaction Documents shall
be deemed modified and amended in accordance with the same.
4. The parties hereto acknowledge that, in an effort to maintain compliance
with Nasdaq Marketplace Rules and regain compliance with minimum bid price
requirements, the Company has proposed a one-for-four reverse stock split
(the "Reverse Split"). The parties further acknowledge and agree that, in
the event the Reverse Split is approved by the Company's shareholders and
implemented by the Company's Board of Directors and officers, each of the
Transaction Documents shall be automatically modified and amended to
reflect the Reverse Split.
5. To the extent the terms and conditions of the Transaction Documents are not
specifically modified by this Amendment, such terms and conditions shall
continue in full force and effect.
6. This Amendment shall be binding on and shall inure to the benefit of the
parties hereto and their respective heirs, legal representatives,
successors and permitted assigns. No party may assign this Amendment
without the express prior written consent of the other parties hereto.
7. This Amendment shall be construed in accordance with and governed by the
laws of the State of New York.
8. This Amendment may be executed in one or more counterparts, each of which
shall be considered an original, and all of which, when taken together,
shall be considered one and the same agreement and shall become effective
when such counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
[SIGNATURES CONTAINED ON THE FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized signatories as of the date first
indicated above.
XXXXXX ELECTRONICS, INC. Address for Notice:
-------------------
By: /s/ Xxxxxxx X. Xxxxx 000 Xxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxxxxxx, XX 00000
Title: Chairman Facsimile: (000) 000-0000
With a copy to (which shall not constitute notice):
Ruskin Moscou Faltischek, P.C.
1425 Reckson Plaza
Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above and by their signature do hereby agree to purchase the amount of
securities described below.
Name of Purchaser: Xxxxxx X. Xxxxxxxx
Signature of Authorized Signatory of Purchaser: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name of Authorized Signatory: ________________________
Title of Authorized Signatory: ________________________
Subscription Amount: $50,000
Shares of Preferred Stock: 50
Warrant Shares: 21,428.5
[SIGNATURE PAGES CONTINUE]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above and by their signature do hereby agree to purchase the amount of
securities described below.
Name of Purchaser: Xxxxx Xxxxxx Xxxxxxxxx
Signature of Authorized Signatory of Purchaser: /s/ Xxxxx Xxxxxx Xxxxxxxxx
-------------------------------
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: ________________________
Subscription Amount: $150,000
Shares of Preferred Stock: 150
Warrant Shares: 64,285
[SIGNATURE PAGES CONTINUE]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above and by their signature do hereby agree to purchase the amount of
securities described below.
Name of Purchaser: Xxxxxxx X. Xxxxxx
Signature of Authorized Signatory of Purchaser: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name of Authorized Signatory _________________________
Title of Authorized Signatory: __________________________
Subscription Amount: $50,000
Shares of Preferred Stock: 50
Warrant Shares: 21,428.5
[SIGNATURE PAGES CONTINUE]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above and by their signature do hereby agree to purchase the amount of
securities described below.
Name of Purchaser: DKR SoundShore Oasis Holding Fund Ltd.
Signature of Authorized Signatory of Purchaser: /s/ Xxxxxxx Xxxxxx
--------------------------
Name of Authorized Signatory: Xxxxxxx Xxxxxx
Title of Authorized Signatory: Director
Subscription Amount: $3,000,000
Shares of Preferred Stock: 3,000
Warrant Shares: 1,285,714.3
[SIGNATURE PAGES CONTINUE]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above and by their signature do hereby agree to purchase the amount of
securities described below.
Name of Purchaser: Xxxxx Xxxxxxxx
Signature of Authorized Signatory of Purchaser: /s/ Xxxxx Xxxxxxxx
-------------------------
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: __________________________
Subscription Amount: $150,000
Shares of Preferred Stock: 150
Warrant Shares: 64,285.7
[SIGNATURE PAGES CONTINUE]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above and by their signature do hereby agree to purchase the amount of
securities described below.
Name of Purchaser: Harborview Master Fund L.P.
Signature of Authorized Signatory of Purchaser: /s/
-------------------------------
Name of Authorized Signatory: Navigator Management Ltd.
Title of Authorized Signatory: Authorized Signatory
Subscription Amount: $500,000
Shares of Preferred Stock: 500
Warrant Shares: 214,285.7
[SIGNATURE PAGES CONTINUE]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above and by their signature do hereby agree to purchase the amount of
securities described below.
Name of Purchaser: Xxxxx X. Xxxxxx
Signature of Authorized Signatory of Purchaser: /s/ Xxxxx X. Xxxxxx
----------------------------
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: __________________________
Subscription Amount: $50,000
Shares of Preferred Stock: 50
Warrant Shares: 21,428.5
[SIGNATURE PAGES CONTINUE]
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above and by their signature do hereby agree to purchase the amount of
securities described below.
Name of Purchaser: Xxxxxx Xxxxxxxxx
Signature of Authorized Signatory of Purchaser: /s/ Xxxxxx Xxxxxxxxx
--------------------------
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: __________________________
Subscription Amount: $50,000
Shares of Preferred Stock: 50
Warrant Shares: 21,428.5
