SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIS SECOND AMENDMENT, dated as of October 7, 2005 (this "Second
Amendment") is entered into by and among the undersigned parties to amend the
Securities Purchase Agreement (the "Securities Purchase Agreement"), dated as of
September 23, 2005 by and among Composite Technology Corporation and the Buyers
party thereto, as amended on October 3, 2005. Capitalized terms used in this
Second Amendment without definition shall have the respective meanings given to
them in the Securities Purchase Agreement, as amended.
WHEREAS, Section 1 of the Amendment to Securities Purchase Agreement
entered into by the undersigned parties on October 3, 2005 provides that in the
event the parties cannot agree on a revised definition of Conversion Price, as
contained in the Form of Note, on or before 4pm Pacific Daylight Time on October
7, 2005, the Securities Purchase Agreement shall immediately terminate without
further action by any party;
WHEREAS, the undersigned parties have agreed on the Conversion Price, as
set forth herein; and
WHEREAS, the undersigned parties wish to set the Conversion Price at $1.55
and to move forward with closing the transaction contemplated by the Securities
Purchase Agreement, as amended.
NOW THEREFORE in consideration of valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned hereby
agrees as follows:
1. Agreement on Conversion Price. The undersigned parties hereby agree to
a Conversion price of $1.55 and that the condition set forth in Section 1 of the
Amendment to Securities Purchase Agreement with respect to agreement to a
definition of the term Conversion Price shall be deemed satisfied and the
parties hereby agree to close the transactions set forth in the Securities
Purchase Agreement, as amended, subject to such other conditions set forth in
the Securities Purchase Agreement, as amended.
2. Adjustment to Conversion Price. In the event the change in Conversion
Price from $1.60 to $1.55 would result in the inability of the Bankruptcy Court
to approve the Securities Purchase Agreement and the financing contemplated
therein on October 11, 2005, then the Conversion Price shall remain $1.60 to
enable the Bankruptcy Court to approve the Securities Purchase Agreement and the
financing contemplated therein on October 11, 2005.
3. Scope of Amendment. All other terms and provisions of the Securities
Purchase Agreement, as amended, not expressly modified by this Second Amendment
shall remain in full force and effect and are hereby expressly ratified and
confirmed; provided, that representations and warranties contained in the
Securities Purchase Agreement, as amended, that relate to the "date hereof"
shall continue to relate to September 23, 2005.
4. Section Headings; Construction. The headings of sections in this Second
Amendment are provided for convenience only and will not affect its construction
or interpretation. All words used in this Second Amendment will be construed to
be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding words or
terms.
5. Counterparts. This Second Amendment may be executed in counterparts,
each of which shall be deemed an original and each of which shall constitute one
and the same instrument.
6. Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Second Amendment
shall be governed by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Second Amendment and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS SECOND AMENDMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Second Amendment to
Securities Purchase Agreement to be duly executed as of the date first written
above.
Composite Technology Corporation
By: __________________________
Xxxxxx X Xxxxxxxx
Chief Executive Officer
