Exhibit 10.4
AMENDMENT TO PLACEMENT AGENT AGREEMENT
THIS AMENDMENT TO PLACEMENT AGENT AGREEMENT (this "Agreement") is dated
this 16th day of January, by and among New Frontier Energy, Inc., a Colorado
corporation ("New Frontier") and Westminster Securities Corp., a Delaware
corporation (the "Placement Agent"). New Frontier and the Placement Agent are
referred to herein collectively as the "Parties."
RECITALS
WHEREAS, New Frontier and the Placement Agent are parties to that certain
Placement Agent Agreement dated November 14, 2006 (the "November 2006 Placement
Agent Agreement"); and
WHEREAS, New Frontier and the Placement Agent desire to amend certain terms
of the November 2006 Placement Agent Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and agreements set forth herein, the Parties hereto
agree as follows:
1. Amendment to Section 3(c) of the November 2006 Placement Agent
Agreement. Section 3(c) of the November 2006 Placement Agent Agreement is hereby
deleted in its entirety and replaced with the following:
(c)
(1) Except as set forth in this Agreement, as its basic compensation
(collectively, "Basic Compensation"), the Placement Agent (or its
designees) shall receive (i) cash compensation equal to eight percent (8%)
of the gross proceeds received by the Company from the sale of Units which
were sold directly by the Placement Agent, due at each Closing, as
commission; and (ii) additional compensation in the form of warrants
("Placement Agent Warrants") to purchase (1) 10% of the number of Shares
underlying the Preferred Stock sold by the Placement Agent in the Offering
(assuming the initial conversion rate of $1.05), at an exercise price of
$1.05 per share, (2) 10% of the number of Warrant Shares underlying AC
Warrants sold in the Offering by the Placement Agent, at an exercise price
of $1.50 per share and (3) 10% of the number of Warrant Shares underlying
BC Warrants sold in the Offering by the Placement Agent, at an exercise
price of $2.00 per share.
(2) The Company and the Placement Agent expressly agree that the Placement
Agent will not be compensated for the sale of Units to the following
investors: (i) Iris Energy Holdings Limited, (ii) Xxxxx X. May, (iii)
Xxxxxxx X. Xxxxxxxxx, and (iv) Xxxxxx X. Xxxx and Xxxxx X. Xxxx.
(3) It is expressly agreed that the Placement Agent shall only be entitled
to the following compensation based upon the investment in the Offering by
the Vision Opportunity Master Fund, Ltd.: (i) cash compensation of a flat
fee in the amount of $65,000 and (ii) additional compensation in the form
of warrants (the "Vision Investment Warrants") to purchase (1) 142,857
shares of Common Stock at a price of $1.05 per share, (2) 142,857 shares of
Common Stock at a price of $1.50 per share and (3) 71,428 shares of Common
Stock at a price of $2.00 per share. The Vision Investment Warrants shall
be included in the definition of Placement Agent Warrants as used in the
November 2006 Placement Agent Agreement.
(4) It is expressly agreed that the Placement Agent shall only be entitled
to cash compensation of $20,000 as a result of the investment in the
Offering by Xxxxx Xxxxxx. The Placement Agent shall receive no warrants as
a result of the investment by Xxxxx Xxxxxx.
(5) The Placement Agent Warrants, and the shares of Common Stock issuable
upon exercise of the Placement Agent Warrants shall have registration,
anti-dilution and other rights identical to the Warrants and Shares
included in or issuable upon sale of the Units, and shall be exercisable
any time from the Issuance Date through the last expiration date of any of
the Warrants. In the event that any payment due the Placement Agent
hereunder shall not be made when due, interest shall accrue on the unpaid
balance of such overdue payments at the rate of twelve percent (12%) per
annum until paid.
2. Amendment to Section 5(c) of the November 2006 Placement Agent
Agreement. Section 5(c) of the November 2006 Placement Agent Agreement is hereby
deleted in its entirety and replaced with the following:
(c) In order to provide for just and equitable contribution in any case in
which (i) any person entitled to indemnification under this Section 5 makes
claim for indemnification pursuant hereto but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
person in circumstances for which indemnification is provided under this Section
5, then and in each such case, the Company and the Placement Agent shall
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after any contribution from others) in such proportion so that
the Placement Agent is responsible for an aggregate of the actual cash
commission received by Placement Agent with respect to the gross proceeds
received by the Company on account of the sale of Units by the Placement Agent
(which commission ranges from 0% to 8% of the gross proceeds on account of the
sale of Units, as further set forth in Section 3(c) above), and the Company is
responsible for the remaining portion; provided however, that in any such case,
no person guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
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3. No Other Effect. Except as expressly amended by the terms of this
Agreement, the terms of the November 2006 Placement Agent Agreement shall remain
in full force and effect.
4. Conflicts in Terms. In the event of any conflict between the terms of
the November 2006 Placement Agent Agreement and the terms of this Agreement, the
terms of this Agreement shall control and take precedence.
5. Words and Phrases. The meanings of words and phrases used in this
Agreement shall have the same meaning as when they are used in the November 2006
Placement Agent Agreement.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the day and year first above written.
NEW FRONTIER ENERGY, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx, President
WESTMINSTER SECURITIES CORP.
By: /s/ Xxxx X. X'Xxxx
--------------------------------
Xxxx X. X'Xxxx, Chairman and CEO
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