AMENDMENT No. 1 TO ASSET PURCHASE AGREEMENT AND PROMISSORY NOTE
EXHIBIT 10.1
This Amendment No. 1 (the “Amendment No. 1”) to the Asset Purchase Agreement and the
Promissory Note is made and entered into between World Energy Solutions, Inc., a Delaware
corporation (the “Buyer”), and Northeast Energy Solutions, LLC, a Connecticut limited liability
company (the “Seller”) (together with World Energy, the “Parties”) as of October 20, 2011.
Capitalized terms used herein have the respective meanings ascribed thereto in the Asset Purchase
Agreement dated October 13, 2011 unless otherwise defined herein.
A. | The Buyer and the Seller previously entered into the Asset Purchase Agreement effective
October 13, 2011. |
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B. | The Buyer issued a Promissory Note to the order of the Seller pursuant to the terms and
conditions of the Asset Purchase Agreement. |
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C. | The Parties wish to modify certain terms of the Asset Purchase Agreements and the
Promissory Note, subject to conditions set forth in this Amendment No. 1. |
NOW THEREFORE, in consideration of mutual covenants, agreements and representations contained
in this Amendment No. 1, the Asset Purchase Agreement, and the Promissory Note, the Parties hereto
agree as follows:
1. | The last paragraph of Section 1.6 of the Asset Purchase Agreement shall be amended to
read as follows: |
“Upon attainment of the 2011 and/or 2012 earnout goals, the Seller will receive
payment in the form of cash.”
2. | The third paragraph on the first page of the Promissory Note shall be removed in its
entirety and replaced as follows: |
“Except as otherwise provided below, on each of, July 2, 2012, October 1, 2012, and
December 28, 2012 (each, a “Payment Date”), the Maker shall pay Payee, in lawful money of
the United States by check payable to Payee and delivered to the Payee’s address stated
above or at such other place as the Payee may designate, $1,000,000 of the unpaid
principal amount of this Note, together with the accrued but unpaid interest on the
unpaid principal balance of this Note (each such payment of principal and interest, a
“Cash Payment”).”
3. | Conflict. In the event of any conflict between the provisions of this Amendment
No. 1 and the provisions of the Asset Purchase Agreement and/or the Promissory Note, the
provisions of this Amendment No. 1 shall prevail and the provisions of the Asset Purchase
Agreement and/or the Promissory Note shall be deemed modified by this Amendment No. 1 as
necessary to resolve such conflict. |
4. | Effect of Amendment. Except as expressly amended by this Amendment No. 1 and/or
by the preceding sentence, the terms and provisions of the Asset Purchase Agreement and the
Promissory Note shall continue in full force and effect. |
[SIGNATURE PAGE FOLLOWS]
WORLD ENERGY SOLUTIONS, INC. | ||||
By: |
/s/ Xxxxxx X. Xxxxx | |||
Title: President and COO | ||||
Address: World Energy Solutions, Inc. 000 Xxxx Xxxxxx Xxxxxxxxx, XX 00000 Attention: General Counsel |
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With a copy to (which shall not constitute notice): | ||||
Xxxxxxx Xxxxx, Esq. Xxxxxx X’Xxxxxxx 000 Xxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
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NORTHEAST ENERGY SOLUTIONS, LLC | ||||
By: |
/s/ Xxxxxx Xxxxxxxxxxxxx | |||
Title: Managing Member | ||||
Members: | ||||
/s/ Xxxxxx Xxxxxxxxxxxxx | ||||
/s/ Xxxxxxx Xxxxxxxxxx | ||||
/s/ Xxxx Xxxxxxxx | ||||
Address: Northeast Energy Solutions LLC | ||||
0 Xxxxx Xxxxx Xxxxxxxx, XX 00000 |
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With a copy to (which shall not constitute notice): | ||||
Xxxxxxx Xxxxxxx, Esq. | ||||
Xxxxx and Carrier, LLP | ||||
00 Xxxxx Xxxxxx | ||||
Xxx Xxxxxxx, XX 00000 |