EXHIBIT 10.78
TIMECAPITAL SECURITIES CORPORATION
ONE ROOSEVELT AVENUE
PORT JEFFERSON STATION, NEW YORK 11776
PHONE (516) 331-1400 FAX (516) 331-1407
July 15, 1996
Nova Technologies, Inc.
89 Cabot Court, Unit L
Hauppauge, New York 11788
Attn: Stephen M. Fisher
President
Dear Sirs:
We are parties to two recently executed agreements with respect to our
performing certain investment banking services on behalf of Nova Technologies,
Inc. ("Nova"): the agreement dated April 19, 1996 engaging TimeCapital
Securities Corporation ("TimeCapital") as Nova's exclusive, private placement
agent (the "Placement Agreement") and the agreement engaging TimeCapital as
Nova's exclusive agent to arrange for an underwriter (the "Underwriter
Agreement"). Both the Placement Agreement and the Underwriter Agreement were
amended by executed agreements dated April 26, 1996 (the "April Amendment") and
dated May 21, 1996 (the "May Amendment"), respectively. All of the foregoing
are referred to herein collectively as the "Agreements".
The Agreements contemplated the completion of a private placement of
500,000 shares of Nova's Common Stock at $2.00 per share and provided Nova with
certain rights if such event did not occur within the agreed time. In
consideration for the services of TimeCapital and its principals in arranging
for a $250,000 secured loan to Nova and other valuable consideration, it is
agreed as follows:
The introductory paragraph of the Placement Agreement, as heretofore amended, is
hereby further amended by deleting therefrom the words "the private placement of
500,000 shares of its Common Stock at a price of two dollars ($2.00) per share"
and substituting therefore the words "the placement of such number as shall be
mutually agreed but in no event less than 500,000 shares of its Common Stock
duly registered under the Securities Act of 1933, as amended or unregistered as
TimeCapital may elect, as shall result in gross proceeds of $1,000,000."
Section V of the Placement Agreement, as heretofore amended, is hereby
further amended to read in its entirety as follows:
"Section V. Terms of Engagement, Survival, etc.
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The Agreement is exclusive and will be in effect for an initial period ending on
the ninety first (91st) day after Nova gives TimeCapital written notice that it
has at least 500,000 shares of its Common Stock duly registered under the
Securities Act of 1933, as amended, available for placement to or through
TimeCapital pursuant to this Agreement, and may be extended by the mutual
written consent of Nova and TimeCapital. Notwithstanding any termination of
TimeCapital's engagement hereunder, TimeCapital will be entitled to its full
fees under Section II hereof in the event that at any time within twelve (12)
months from the date of termination, a transaction is consummated with sources
of capital introduced to Nova or contacted by TimeCapital. The provisions of
Section III, IV and V hereof shall survive any termination of TimeCapital's
engagement hereunder. Anything in this Section V to the contrary
notwithstanding, Nova shall have the right to privately place such number of
shares of its Common Stock, in unregistered form, as shall be necessary to
provide net proceeds to Nova for the full payment, when due, of its indebtedness
to Northern Associates, L.P. to or through a party other than TimeCapital if,
and only if, TimeCapital shall have first refused to do so on like terms and
conditions."
Paragraph 1 of the Underwriters Agreement, as heretofore amended, is
hereby further amended by deleting therefrom the last word "thereafter" and
substituting therefore the words "from July 15, 1996".
Paragraph 4 of the Underwriters Agreement, as heretofore amended, is
hereby further amended to read in its entirety as follows:
"4. Anything in this Agreement to the contrary notwithstanding, Nova may
terminate this Agreement without payment of the Buy Out Price described in
paragraph 7 if, and only if, Nova fails to receive a loan in the principal
amount of $250,000 from the placement to its secured promissory note on or
before July 15, 1996.
Paragraph 7 of the Underwriters Agreement, as heretofore amended, is
hereby further amended to read in its entirety as follows:
"7. Nova shall have the right to terminate this Agreement at any time upon the
payment of Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars to
TimeCapital (the "Buy Out Price"). The Buy Out Price shall be paid in the
combination of $100,000 cash and in 150,000 shares of Common Stock of Nova,
which Common Stock shall be deemed to have a value of $1.00 per share (subject
to equitable adjustments for stock splits, stock dividends and other such
transactions). The 150,000 shares of such Common Stock shall be registered
under the Securities Act of 1933, as amended to the maximum extent that such
shares are then available to Nova and, to the extent not available, in
unregistered shares subject to full piggyback registration rights. However,
TimeCapital's rights to compensation as provided in paragraph 5 shall survive
any such termination if a transaction is consummated with or through a party
introduced to Nova or contacted by TimeCapital prior to TimeCapital's receipt of
the Buy Out Price."
Please confirm the foregoing amendments by executing the counterpart
of this letter and returning it to TimeCapital.
Very truly yours,
ACCEPTED AND AGREED TO:
TimeCapital Securities Corporation
By:___________________________________
Richard G. Rohman
Vice President
ACCEPTED AND AGREED TO:
Nova Technologies, Inc.
By:___________________________________
Stephen M. Fisher
President