Exhibit 10.4
First Priority Group, Inc.
51 East Bethpage Road
Plainview, New York 11803
Tel: (516) 694-1010
September 29, 2000
Suerez Enterprises Limited
C/o Dr. Dr. Batliner & Partner
Aeulestrasse 74
FL-9490 Vaduz, Liechtenstein
Attn.: Mr. Hans Gassner
Re: Amendment to Common Stock Purchase Agreement
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Gentlemen:
Reference is made to that certain Common Stock Purchase Agreement (the
"Purchase Agreement"), dated May 31, 2000, between First Priority Group, Inc.
(the "Company") and Suerez Enterprises Limited (the "Purchaser"). In order to
register for resale the Common Stock to be purchased pursuant to the Purchase
Agreement, certain provisions of the Purchase Agreement must be deleted or
revised.
In consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree to
restate the following section of the Purchase Agreement as follows:
Section 5.2 (f) Warrants. In lieu of a minimum Draw Down
commitment by the Company, the Purchaser shall receive a warrant
certificate at the initial closing to purchase up to a number of shares
of Common Stock equal to $100,000 divided by the VWAP on the Trading
Day immediately prior to the date of the Closing (the "Initial
Warrant"). One half of such Warrants shall be exercisable immediately
and the other half shall be exercisable six months thereafter. As to
any Draw Downs or any portion of a Draw Down made by the Company after
the Company has drawn down in excess of Five Million Dollars
($5,000,000) in the aggregate under this Agreement, the Purchaser shall
also receive, at each applicable Draw Down closing, a warrant
certificate representing 4% warrant coverage (using the same formula
set forth above) of any such Draw Down or portion thereof (each, a
"Draw Down Warrant" and collectively with the Initial Warrant, the
"Warrants"). The term of the Warrants shall be three (3) years from the
date of their issuance. The Strike Price of the Warrants shall be 150%
of the VWAP on the Trading Days immediately prior to the applicable
closing date. The Common Stock underlying the Warrants will be
registered in the Registration Statement referred to in Section 4.3
hereof. The Warrants shall be in the form of Exhibit E hereto.
Conditions Precedent to the Obligation of the Purchaser to
Accept a Draw Down and Purchase the Shares. The obligation hereunder of
the Purchaser to accept a Draw Down request and to acquire and pay for
the Shares is subject to the satisfaction or waiver, at or before each
Draw Down Exercise Date, of each of the conditions set forth below.
Section 6.1. (b) Only one Draw Down shall be allowed in each
Draw Down Pricing Period. The price per share paid by the Purchaser
shall be based on the
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Average Daily Price on each separate Trading Day during the Draw Down
Pricing Period. The number of shares of Common Stock purchased by the
Purchaser with respect to each Draw Down shall be determined on a daily
basis during each Draw Down Pricing Period and settled on a weekly
basis (each date of settlement a "Draw Down Exercise Date"). In
connection with each Draw Down Pricing Period, the Company may set an
Average Daily Price below which the Company will not sell any Shares
(the "Threshold Price"). If the Average Daily Price on any day within
the Draw Down Pricing Period is less than the Threshold Price, the
Company shall not sell and the Purchaser shall not be obligated to
purchase the Shares otherwise to be purchased for such day.
Section 7.1. Termination by Mutual Consent. The term of this
Agreement shall be twelve (12) months.
Section 7.2. Other Termination. The Purchaser may terminate
this Agreement upon one (1) Trading Day's notice if (i) an event
resulting in a Material Adverse Effect has occurred, (ii) the Common
Stock is de-listed from the Principal Market unless such de-listing is
in connection with the listing of the Common Stock on the Nasdaq
National Market, Nasdaq SmallCap Market, the American Stock Exchange or
the New York Stock Exchange, or (iii) the Company files for protection
from creditors under any applicable law.
Additionally, the parties hereby agree to amend the address
for the Purchaser in Section 9.4 of the Purchase Agreement as follows:
Except as specifically amended by the terms of this letter, the
Purchase Agreement shall remain unmodified and in full force and effect, and
shall not be in any way changed, modified or superseded by the terms set forth
herein. All terms used but not defined in this letter shall have the meanings
set forth in the Purchase Agreement.
If the foregoing correctly sets forth our understanding and agreement,
please so indicate by signing where indicated below.
FIRST PRIORITY GROUP, INC.
By: __________________________
Name:
Title:
ACCEPTED AND AGREED TO:
SUEREZ ENTERPRISES LIMITED
By: _________________________________
Name:
Title:
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