FIRST AMENDMENT AGREEMENT
This
First Amendment Agreement (this “Agreement”),
is
made and entered into as of August 24, 2007, by and among Solomon Technologies,
Inc., a Delaware corporation (the “Company”)
and
each of the investors signatory hereto (each, a “Holder”
and
collectively, the “Holders”).
Capitalized terms not defined in this Agreement shall have the meanings ascribed
to such terms in the Purchase Agreement (as defined below).
WHEREAS,
the Company and each of the Holders are parties to that certain Securities
Purchase Agreement (the “Purchase
Agreement”),
dated
as of January 17, 2007, pursuant to which the Company issued to the Holders
its
Variable Rate Self-Liquidating Senior Secured Convertible Debentures with an
aggregate principal amount of $5,350,000 (the “Debentures”),
and
Common Stock Purchase Warrants to purchase up to, in the aggregate, 2,006,250
shares of Common Stock (the “Warrants”);
WHEREAS,
the Company has made the first required Monthly Redemption payment that was
due
on June 1, 2007, and has paid all interest due on the Debentures through May
31,
2007, but to date has not made the Monthly Redemption payment due on July 1,
2007, or August 1, 2007, or paid the interest due on the Debentures for the
period June 1, 2007, through July 31, 2007;
WHEREAS,
the Company is seeking at least $1,000,000 in new debt or equity financing
from
existing or new investors and upon terms that are not yet determined (the
“New
Financing”),
and
has requested that the Holders waive certain provisions of the Transaction
Documents in connection with such New Financing; and
WHEREAS,
the parties desire to amend certain provisions of the Debentures and other
Transaction Documents pursuant to the terms hereof.
NOW
THEREFORE, in consideration of the terms and conditions contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
Section
1. Amendment
to Purchase Agreement, Debentures, Warrants, Registration Rights
Agreement.
(a) Effective
as of August 1, 2007, the definition of “Monthly Redemption Date” in Section 1
of each Debenture is hereby deleted and replaced in its entirety with the
following:
““Monthly
Redemption Date”
means the 1st of each month, commencing on the first such day following the
earlier of (i) the date the Second Registration Statement (as defined in the
Registration Rights Agreement, as amended) is declared effective by the
Commission and (ii) December 1, 2007, and ending upon the full redemption of
this Debenture.”
(b) Effective
as of August 1, 2007, the definition of “Monthly Redemption Amount” in Section 1
of each Debenture is hereby deleted and replaced in its entirety with the
following:
““Monthly
Redemption Amount”
means an amount equal to the then outstanding principal amount of this Debenture
on the first Monthly Redemption Date following August 24,
20071 multiplied
by a fraction, the numerator of which is 1 and the denominator of which is
the
number of months between such first Monthly Redemption Date and April 17,
2009.”
(c) The
Conversion Price of each Debenture is hereby reduced to equal $0.35 per share,
subject to further adjustment pursuant to the terms of the
Debentures.
(d) The
definition of “Maturity Date” in the second paragraph of each of the Debentures
is hereby amended as follows:
“,…April
17, 2009 (the “Maturity
Date”).”
(e) The
Exercise Price (as defined in the Warrants) of each of the Warrants is hereby
reduced to equal $0.35 per share (such reduction, the “$0.35
Adjustment”,
subject to further adjustment pursuant to the terms of the Warrants. Such
adjustment shall be to the Exercise Price per Warrant Share only and shall
not
increase the number of Warrant Shares issuable pursuant to the Warrants. For
clarity and avoidance of doubt, it is agreed and understood that nothing herein
shall prevent the number of Warrant Shares issuable pursuant to the Warrants
from being increased in accordance with the terms of the Warrants upon any
adjustment to the Exercise Price other than the “$0.35 Adjustment”.
(f) The
definition of “Effectiveness Date” in Section 1 of the Registration Rights
Agreement is hereby deleted in its entirety and replaced with the
following:
““Effectiveness
Date”
means, (a) with respect to the initial Registration Statement required to be
filed hereunder, the 120th
calendar day following the date hereof, (b) with respect to the second
Registration Statement required to be filed hereunder (the “Second
Registration Statement”),
January 22, 20082 and,
(c) with respect to any additional Registration Statements which may be required
pursuant to Section 3(c), the 60th
calendar day following the date on which the Company first knows, or reasonably
should have known, that such additional Registration Statement is required
hereunder; provided,
however,
that in the event the Company is notified by the Commission that one of the
above Registration Statements will not be reviewed or is no longer subject
to
further review and comments, the Effectiveness Date as to such Registration
Statement shall be the fifth Trading Day following the date on which the Company
is so notified if such date precedes the dates required above.”
1
The date
of this Agreement.
2 The
151st
calendar
day following the date of this Agreement.
2
(g)
The
definition of “Filing Date” in Section 1 of the Registration Rights Agreement is
hereby deleted in its entirety and replaced with the following:
““Filing
Date”
means, (a) with respect to the initial Registration Statement required
hereunder, the 30th calendar day following the date hereof and, (b) with respect
to the Second Registration Statement, October 1, 2007 (the “Second Filing
Date”), and (c) with respect to any additional Registration Statements which may
be required pursuant to Section 3(c), the 30th calendar day following the date
on which the Company first knows, or reasonably should have known, that such
additional Registration Statement is required hereunder.”
Notwithstanding
the foregoing amendments in Section 1(f) and 1(g) hereof, the Company shall
be
obligated to pay liquidated damages pursuant to the terms of the Registration
Rights Agreement for failure of the Second Registration Statement to be timely
filed by the Second Filing Date or declared effective by the Effectiveness
Date
as defined immediately prior to the date hereof through the date hereof, which
damages shall be paid in the manner set forth in Section 2 herein. The
Company and the Holders hereby agree that, notwithstanding Section 2(b) of
the
Registration Rights Agreement, no partial liquidated damages or other amounts
shall accrue under such Section 2(b) in respect of any default occurring under
the Registration Rights Agreement for any Registrable Securities not subject
to
a currently effective registration statement from and between the date hereof
and the 151st
calendar day following the date hereof,
except that liquidated damages shall accrue under Section 2(b) in respect of
any
default related to the Company’s failure to file the Second Registration
Statement by the Second Filing Date.
(h) The
definition of “Exempt Issuance” in Section 1.1 of the Purchase Agreement is
hereby deleted in its entirety and replaced with the following:
““Exempt
Issuance”
means the issuance of (a) shares of Common Stock or options to employees,
officers or directors of the Company pursuant to any stock or option plan duly
adopted for such purpose by a majority of the non-employee members of the Board
of Directors of the Company or a majority of the members of a committee of
non-employee directors, (b) up to, in the aggregate, 250,000 shares of Common
Stock or options (subject to reverse and forward stock splits and the like)
during any 12 month period issued to the officers, directors or employees of
the
Company or its Subsidiaries and approved by a majority of the members the Board
of Directors of the Company, (c) up to, in the aggregate, $200,000 of Common
Stock during any 6 month period approved by a majority of the members the Board
of Directors of the Company, (d) securities upon the exercise or exchange of
or
conversion of any Securities issued hereunder and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement (“Derivative
Securities”),
provided that the issuance of any additional securities as a result of any
amendment, reset or adjustment (including resets and adjustments required
pursuant to the terms of the Derivative Securities as in existence on the date
hereof) of such Derivative Securities (other than pursuant to reverse and
forward stock splits and the like) since the date of this Agreement shall not
be
exempt, (e) securities issued pursuant to acquisitions or strategic transactions
approved by a majority of the disinterested directors of the Company, provided
that any such issuance shall only be to a Person which is, itself or through
its
subsidiaries, an operating company in a business synergistic with the business
of the Company and in which the Company receives benefits in addition to the
investment of funds, but shall not include a transaction in which the Company
is
issuing securities primarily for the purpose of raising capital or to an entity
whose primary business is investing in securities, (f) up to 160,000 shares
of
Common Stock to be issued to Ardour Capital Investments LLC or its designees
in
partial consideration for its services to the Company in connection with the
transactions contemplated by this Agreement,
(g) up to $375,000 of Common Stock to be issued to JMC Venture Partners LLC
(“JMC”)
or its assigns as a commitment fee for a $15 million acquisition line of credit
to be entered into between the Company and JMC and an additional $100,000 of
Common Stock per quarter to be issued to JMC as a monitoring fee, which shares
shall be issued for an effective per share price of at least the fair market
value of the Common Stock on the date of issuance of the applicable
share
as determined by the Company’s board of directors in good faith.
Notwithstanding anything herein or in any other Transaction Document to the
contrary and consistent with clause (d) above, it is expressly agreed that
any
amendments, adjustments or resets that result in future issuances of Common
Stock or Common Stock Equivalents pursuant to that certain Securities Purchase
Agreement, dated August 17, 2006, by and among the Company, Integrated Power
Systems LLC, Power Designs Inc., The Vantage Partners LLC, Technipower LLC
and
the other parties listed on the signature pages thereto, or pursuant to any
other agreements or documents entered into or issued in connection therewith,
shall not be an Exempt Issuance.”
3
(i) Section
6(b) of the Registration Rights Agreement is hereby deleted in its entirety
and
replaced with the following:
““(b)No
Piggyback on Registrations.
Except as set forth in the registration rights agreements listed on
Schedule
6(b)
attached hereto, neither the Company nor any of its security holders (other
than
the Holders in such capacity pursuant hereto) may include securities of the
Company in the Registration Statements other than the Registrable Securities.
The Company shall not file any other registration statements until all
Registrable Securities are registered pursuant to a Registration Statement
that
is declared effective by the Commission, provided that this Section 6(b) shall
not prohibit the Company from filing (i) amendments to registration statements
filed prior to the date of this Agreement, (ii) registration statement(s)
required to be filed by the Company under that certain Registration Rights
Agreement entered into in connection with the New Financing, (iii) registration
statement(s) registering securities issued to JMC Venture Partners LLC (“JMC”)
or assigns in connection with and pursuant to the acquisition line of credit
to
be made available to the Company by JMC and that qualify as Exempt Issuances
or
(iv) a registration statement on Form S-8 covering no more than 1,250,000 shares
of Common Stock and Common Stock Equivalents, in the aggregate, issued to
members of the Company’s senior management that qualify as Exempt
Issuances.”
4
Section
2. Satisfaction
of Liquidated Damages under the Registration Rights Agreement.
In lieu
of the payment of accrued but unpaid liquidated damages under the Registration
Rights Agreement accrued through the date hereof in the amounts set forth on
Schedule
1
hereto,
the Company shall issue each Holder, and each Holder agrees to accept, a
Debenture, in the form of the Debentures issued pursuant to the Purchase
Agreement, as amended (the “Additional
Debentures”,
and
the shares of Common Stock underlying the Additional Debentures, the
“Additional
Underlying Debenture Shares”),
with
a principal amount equal to the amounts set forth on Schedule 1
hereto.
Section
3. Waivers
with respect to the New Financing.
Subject
to the terms and conditions hereunder, each Holder hereby
(a)
waives the restrictions set forth in Section 4.13(a) of the Purchase Agreement
and Sections 7(a), 7(b), 7(d) and 7(g) of the Debentures with respect to the
New
Financing and the securities that may be issued therein and agrees that such
restrictions shall not apply to the New Financing or the securities issued
therein;
(b)
agrees that any debt securities sold in the New Financing shall be payable
pari
passu
with the
Debentures;
(c)
waives the restrictions set forth in Sections 4(l) and 4(bb) of the Security
Agreement with respect to the New Financing and consents and agrees that the
Company may enter into a security agreement with the investors in the New
Financing pursuant to which such investors will receive a security interest
in
the Company’s assets that is pari
passu
with
that enjoyed by the Holders;
(d)
waives the restrictions set forth in Section 4(b) of the Subsidiary Guarantee
with respect to the New Financing and agrees that any Guarantor (as defined
therein) may enter into a security or guarantee agreement with the investors
in
the New Financing pursuant to which such investors will receive a security
interest in the Guarantor’s assets that is pari
passu
with
that enjoyed by the Holders; and
(e)
waives the restrictions set forth in Section 6(b) and 6(i) of the Registration
Rights Agreement with respect to the New Financing and consents to the grant
of
registration rights to the investors in the New Financing, provided that such
registration rights shall be no more favorable to such investors than the
registration rights granted to the Holders in the Registration Rights Agreement
are to the Holders.
The
foregoing waivers shall not be effective unless and until all Holders shall
have
agreed to the terms and conditions hereunder. The Company shall offer each
Holder the opportunity to purchase, at the same price and on the same terms
as
are offered to other investors, a portion of the securities sold in such New
Financing at least equal to the proportion that the principal amount of the
Debentures purchased by such Holder bears to the aggregate principal amount
of
the Debentures purchased by all of the Holders.
5
Section
4. July
1, 2007 Monthly Redemption Payments under the Debentures.
Subject
to the terms and conditions herein, each Holder hereby waives any Events of
Default arising under Section 8(a) of each of the Debentures as a result of
the
Company’s failure to make timely payment of the Monthly Redemption Amounts due
on July 1, 2007. Notwithstanding anything herein to the contrary, the Company
hereby agrees to pay, contemporaneously with the effectiveness of this
Agreement, and each Holder agrees to accept, in partial satisfaction of the
Monthly Redemption Amounts owed on July 1, 2007, the dollar amounts set forth
on
Schedule
2
attached
hereto, which payments shall be made in registered shares of Common Stock at
an
effective price per share equal to $0.2797603
such
that the aggregate number of shares issued shall be equal to the lesser of
(i)
that number of shares that would be issued in order to pay all of the amounts
set forth on Schedule 2 in full and (ii) the maximum number of shares remaining
available as of the date hereof for conversion of Debentures on the currently
effective registration statement (SEC File No. 333-140618). All other unpaid
Monthly Redemption Amounts (or portions thereof) that accrued and were payable
prior to August 1, 2007 shall be included in the principal balance when
calculating the Monthly Redemption Amounts payable after August 1,
2007.
Section
5. Conditions
to Obligations.
(a) The
respective obligations of the Holders hereunder are subject to the following
conditions being met:
(i) the
accuracy in all material respects of the representations and warranties of
the
Company contained herein;
(ii) all
obligations, covenants and agreements of the Company required to be performed
pursuant to this Agreement at or prior to the date hereof shall have been
performed;
(iii) there
shall have been no Material Adverse Effect with respect to the Company since
the
date hereof; and
(iv) trading
in the Common Stock shall not have been suspended by the Commission (except
for
any suspension of trading of limited duration agreed to by the Company, which
suspension shall be terminated prior to the Closing), and, at any time prior
to
the Closing, trading in securities generally as reported by Bloomberg Financial
Markets shall not have been suspended or limited, or minimum prices shall not
have been established on securities whose trades are reported by such service,
or on any Trading Market, nor shall a banking moratorium have been declared
either by the United States or New York State authorities nor shall there have
occurred any material outbreak or escalation of hostilities or other national
or
international calamity of such magnitude in its effect on, or any material
adverse change in, any financial market which, in each case, in the reasonable
judgment of each Holder, makes it impracticable or inadvisable to consummate
the
transactions hereunder.
3 This
is
the Monthly Redemption Price applicable to the July 1, 2007, Monthly
Redemption.
6
(b)
The
obligations of the Company hereunder are subject to the following conditions
being met:
(i) the
accuracy in all material respects of the representations and warranties of
each
of the Holders contained herein; and
(ii) all
obligations, covenants and agreements of the Holders required to be performed
pursuant to this Agreement at or prior to the date hereof shall have been
performed.
Section
6. Effect on Transaction Documents. The
foregoing amendments, waivers and consent and agreements are given solely in
respect of the transactions described herein. Except as expressly set forth
herein, all of the terms and conditions of the Transaction Documents shall
continue in full force and effect after the execution of this Agreement, and
shall not be in any way changed, modified or superseded by the terms set forth
herein. This Agreement shall not constitute a novation or accord and
satisfaction of any such Transaction Document.
Section
7. Filing
of 8-K.
Within
2 Trading Days of the date hereof, the Company shall issue a Current Report
on
Form 8-K, reasonably acceptable to each Holder disclosing the material terms
of
the transactions contemplated hereby, which shall include this Agreement as
an
attachment thereto.
Section
8. Representations
and Warranties of the Company.
The
Company hereby makes the following representations and warranties to each
Holder:
(a) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder and thereunder. The execution and delivery
of this Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company, its board
of directors or its stockholders in connection therewith. This Agreement has
been duly executed by the Company and, when delivered in accordance with the
terms hereof will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may
be
limited by applicable law.
(b) No
Conflicts.
The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not
and
will not: (i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become
a
default) under, result in the creation of any Lien upon any of the properties
or
assets of the Company or any Subsidiary, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any material agreement, credit facility, debt or
other material instrument (evidencing a Company or Subsidiary debt or otherwise)
or other material understanding to which the Company or any Subsidiary is a
party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with
or
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which
the
Company or a Subsidiary is subject (including federal and state securities
laws
and regulations), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of clauses (ii)
and
(iii), such as could not have or reasonably be expected to result in a Material
Adverse Effect.
7
(c) Equal
Treatment of Holders.
Except
as set forth in this Agreement, and except to the extent that amounts offered
and paid to the Holders vary in proportion to the principal amount of and
accrued interest on each Holder’s Debenture, no consideration has been or will
be paid to any person to amend or consent to a waiver, modification, forbearance
or otherwise of any provision of any of the Transaction Documents that has
not
been or will be paid to each of the Holders.
(d) No
Material Adverse Effect.
Except
as disclosed in the Company’s reports filed with the Securities and Exchange
Commission, since the Closing Date there has been no Material Adverse Effect
with respect to the Company.
Section
9. Representations
and Warranties of the Holders.
Each
Holder hereby, for itself and for no other Holder, represents and warrants
as of
the date hereof to the Company as follows:
(a) Authority.
The
Holder has the requisite corporate or partnership authority to enter into and
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The execution, delivery and performance
by
such Holder of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate or similar action on the part of such
Holder, its board of directors or its stockholders or partners. This Agreement
has been duly executed by such Holder, and when delivered by such Holder in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Holder, enforceable against it in accordance with its terms,
except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
8
(b) No
Conflicts.
The
execution, delivery and performance of this Agreement by the Holder and the
consummation by the Holder of the transactions contemplated hereby do not and
will not: (i) conflict with or violate any provision of the Holder’s certificate
or articles of incorporation, bylaws or other organizational or charter
documents, or (ii) subject to the Required Approvals, conflict with or result
in
a violation of any law, rule, regulation, order, judgment, injunction, decree
or
other restriction of any court or governmental authority to which the Holder
is
subject (including federal and state securities laws and
regulations).
(c) Own
Account.
Such
Holder understands that the Additional Debentures are “restricted securities”
and have not been registered under the Securities Act or any applicable state
securities law and is acquiring the Additional Debentures as principal for
its
own account and not with a view to or for distributing or reselling such
Additional Debentures or any part thereof in violation of the Securities Act
or
any applicable state securities law, has no present intention of distributing
any of such Securities in violation of the Securities Act or any applicable
state securities law and has no arrangement or understanding with any other
persons regarding the distribution of such Additional Debentures (this
representation and warranty not limiting such Holder’s right to sell the
Additional Underlying Debenture Shares pursuant to the Registration Statement
or
otherwise in compliance with applicable federal and state securities laws)
in
violation of the Securities Act or any applicable state securities law. Such
Holder is acquiring the Additional Debentures hereunder in the ordinary course
of its business. Such Holder does not have any agreement or understanding,
directly or indirectly, with any Person to distribute any of the Additional
Debentures.
(c) Holder
Status.
Such
Holder is, and on each date on which it converts any Additional Debentures
will
be, an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7) or (a)(8) under the Securities Act. Such Holder is not registered or
required to be registered as a broker-dealer under Section 15 of the Exchange
Act.
Section
10. Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and Holders holding at least 67% of the then outstanding
Securities.
Section
11. Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the applicable Transaction
Document.
Section
12. Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties. The Company may not assign (except
by
merger) its rights or obligations hereunder without the prior written consent
of
all of the Holders of the then-outstanding Securities. Each Holder may assign
their respective rights hereunder in the manner and to the Persons and extent
as
permitted under the applicable Transaction Document.
9
Section
13. Execution
and Counterparts.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement, it being understood
that both parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
Section
14. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined in accordance with the provisions of
the
Purchase Agreement.
Section
15. Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
Section
16. Headings.
The
headings in this Agreement are for convenience only, do not constitute a part
of
the Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
Section
17. Fees
and Expenses.
The
Company has agreed to reimburse the Truk Opportunity Fund, LLC the sum of
$10,000, for its out-of-pocket legal fees and expenses, none of which has been
paid prior to the date hereof. Except as expressly set forth herein, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to
the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all transfer agent fees, stamp taxes and other taxes
and
duties levied in connection with the delivery of any Additional Debentures
or
Additional Underlying Debenture Shares.
Section
18. Independent
Nature of Holders’ Obligations and Rights.
The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holders hereunder, and no Holder shall be responsible
in any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered at
any
closing, and no action taken by any Holder pursuant hereto, shall be deemed
to
constitute the Holders as a partnership, an association, a joint venture or
any
other kind of entity, or create a presumption that the Holders are in any way
acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Holder shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of
this
Agreement, and it shall not be necessary for any other Holder to be joined
as an
additional party in any proceeding for such purpose.
10
[SIGNATURE
PAGES FOLLOW]
11
IN
WITNESS WHEREOF, and intending to be legally bound hereby, the parties have
executed this Agreement as of the date first set forth above.
|
SOLOMON
TECHNOLOGIES, INC.
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
12
[SIGNATURE
PAGE OF HOLDERS TO SOLM AMENDMENT]
Name
of
Holder: __________________________
Signature
of Authorized Signatory of Holder:
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
[SIGNATURE
PAGES CONTINUE]
13
Schedule
1
|
Holder
|
Principal
Amount of
Additional
Debenture
|
|
Cornix
Management LLC
|
$3,000.00
|
|
Double
U Master Fund LP
|
$12,000.00
|
|
Nite
Capital LP
|
$7,500.00
|
|
Iroquois
Master Fund Ltd.
|
$30,000.00
|
|
Truk
Opportunity Fund, LLC
|
$22,950.00
|
|
Truk
International Fund, LP
|
$4,050.00
|
|
Shelter
Island Opportunity Fund, LLC
|
$15,000.00
|
|
Xxxxxxxx
Investment Fund Ltd
|
$4,500.00
|
|
BridgePointe
Master Fund Ltd.
|
$45,000.00
|
|
Alpha
Capital Anstalt
|
$9,000.00
|
|
Harborview
Master Fund L.P.
|
$7,500.00
|
|
Total
|
$160,500.00
|
Schedule
2
|
Holder
|
7/1/07
Partial Redemption
Share
Delivery
|
Dollar
Value
|
|
Cornix
Management LLC
|
32,660
|
$9,136.97
|
|
Double
U Master Fund LP
|
130,636
|
$36,546.75
|
|
Nite
Capital LP
|
81,648
|
$22,841.86
|
|
|
||
|
Iroquois
Master Fund Ltd.
|
326,592
|
$91,367.43
|
|
Truk
Opportunity Fund, LLC
|
249,843
|
$69,896.11
|
|
Truk
International Fund, LP
|
44,090
|
$12,334.62
|
|
Shelter
Island Opportunity Fund, LLC
|
163,296
|
$45,683.71
|
|
Xxxxxxxx
Investment Fund Ltd
|
48,988
|
$13,704.89
|
|
BridgePointe
Master Fund Ltd.
|
489,888
|
$137,051.14
|
|
Alpha
Capital Anstalt
|
97,978
|
$27,410.34
|
|
Harborview
Master Fund L.P.
|
81,648
|
$22,841.86
|
|
Total
|
1,747,267
|
$488,815.67
|
