EX-10.38 9 dex1038.txt MODIFICATION AGREEMENT Exhibit 10.38 MODIFICATION AGREEMENT ---------------------- WHEREAS, as of October 26, 2000 and January 10, 2001, Kaire Holdings, Incorporated, a Delaware corporation (the "Company"), pursuant to Subscription Agreement dated October 26, 2000 ("Subscription Agreement") issued Convertible Notes ("Notes") to the Subscribers, and Warrants in connection with the initial funding (amounts designated on Schedule A hereto); and WHEREAS, the Company and Subscribers have determined that it is in the Company's best interests to modify the Subscription Agreement as to the amount of the funding and the nature and number of warrants issued pursuant to the Subscription Agreement. It is now therefore agreed by the Company and Subscribers for good and valuable consideration, receipt of which is hereby acknowledged, that: 1. Pursuant to the Subscription Agreement, specifically Sections 6, 11.2(e)ii, 11.2(e)iii and 11.4, the cumulative number of warrants (hereinafter referred to as "Cumulative Warrants") to be issued and registered shall be 10,409,836. Of this amount, 2,500,000 warrants have been previously issued (hereinafter referred to as "Initial Warrants"). The balance of the warrants to be issued, upon effectiveness of the Registration Agreement, is 7,909,836 (hereinafter referred to as "Remainder Warrants"). All warrants will have a cashless feature as specified in section 2.2 "Cashless Exercise" of the Common Stock Purchase Warrant agreements. 2. The Registration Statement contemplated under Section 10.1 of the Subscription Agreement, shall affect the registration of the Cumulative Warrants. 3. The Remainder Warrants shall be issued to: Talbiya B. Investments LTD ("Talbiya") and Libra Finance S.A. ("Libra"). Talbiya shall be issued 5,273,224 Remainder Warrants, and Libra shall be issued 2,636,612 Remainder Warrants. 4. The cumulative financing amount contemplated in the Subscription Documents is USD 8,000,000.00. The investors put obligations (remaining amounts to be funded) are as follows: Investor Put Amount -------- ---------- THE KESHET FUND L.P. $1,013,440 KESHET, L.P $3,486,650 BALMORE S.A. $2,249,910 5. All terms employed in this Modification Agreement, unless otherwise defined herein, shall have the same meanings attributed to them in the Subscription Agreement and Notes. 6. Except as modified herein, the Subscription Documents shall remain in full force and effect. 7. This Modification Agreement constitutes the binding obligation of the Company. [THIS SPACE INTENTIONALLY LEFT BLANK] Please acknowledge your acceptance of the foregoing Modification Agreement by signing and returning a copy to the undersigned whereupon it shall become a binding agreement between us. Kaire Holdings, Incorporated By: ________________________________ Name: Title: Dated: March 6, 2001 PUT --- Put Note Purchase Price (including Section 11.2(e) Put Amount): $1,013,440 ACCEPTED: Dated as of March 6, 2001 THE KESHET FUND L.P. - Subscriber 135 West 50/th/ Street, Suite 1700 New York, NY 10020 Fax: 212-541-4434 By:______________________________ Please acknowledge your acceptance of the foregoing Modification Agreement by signing and returning a copy to the undersigned whereupon it shall become a binding agreement between us. KAIRE HOLDINGS INCORPORATED A Delaware Corporation By:____________________________ Dated: March 6, 2001 PUT --- Put Note Purchase Price (including Section 11.2(e) Put Amount): $3,486,650 ACCEPTED: Dated as of March 6, 2001 KESHET, L.P.- Subscriber Ragnall House, 18 Peel Road Douglas, Isle of Man 1M1 4L2, United Kingdom Fax: 011-44-1624-661594 By:______________________________ Please acknowledge your acceptance of the foregoing Modification Agreement by signing and returning a copy to the undersigned whereupon it shall become a binding agreement between us. KAIRE HOLDINGS INCORPORATED A Delaware Corporation By:__________________________ Dated: March 6, 2001 PUT --- Put Note Purchase Price (including Section 11.2(e) Put Amount): $2,249,910 ACCEPTED: Dated as of March 6, 2001 BALMORE S.A. - Subscriber P.O. Box 4603 Zurich, Switzerland Fax: 011-411-201-6262 By:_______________________