AMENDMENT AGREEMENT
EXHIBIT
10.10
This
Amendment Agreement is by and between Xxxx Wind, Inc. (the “Company”) and those
purchasers (the “Purchasers” and together with the Company, the “Parties”) of
Series A Preferred Shares pursuant to that certain Securities Purchase Agreement
dated as of June 24, 2008 (the “SPA”).
WHEREAS,
in connection with the SPA, the Company and the Purchasers entered into that
certain Registration Rights Agreement dated as of June 24, 2008 (the “RRA”),
whereby the Company covenanted to perform certain obligations by certain
deadlines;
WHEREAS,
pursuant to Section 2(b)(iii) of the RRA, the Company covenanted to respond to
SEC comments within 10 business days of the receipt thereof;
WHEREAS,
the Company received comments from the SEC on November 28, 2008 and was
obligated to respond by December 8, 2008;
WHEREAS,
the Company did not respond to the SEC until January 21, 2009 and the Purchasers
are entitled to liquidated damages from the period through December 8, 2008
through January 21, 2009 (the “RRA Liquidated Damages”);
WHEREAS,
these liquidated damages were not paid and have accrued interest pursuant to
Section 2(b) of the RRA (the “RRA Interest” and together with the RRA Liquidated
Damages, the “RRA Amount Owed”);
WHEREAS,
in connection with the issuance of the Series A Preferred Shares, the Company
also undertook certain obligations set forth in the Certificate of Designation
of Preferences, Rights and Limitations of Series A 8% Convertible Preferred
Stock (the “Certificate of Designations”);
WHEREAS,
pursuant to Section 3(a) of the Certificate of Designations, the Company was
required to pay quarterly dividends beginning on October 1, 2008 in cash or may
pay them in kind if certain conditions (the “Equity Conditions”) are
met;
WHEREAS,
the Company met the Equity Conditions for the October 1, 2008 Dividend Payment
Date, but did not pay the dividend within 3 Trading Days thereof, giving rise to
a late fee of 18% per annum until the dividend was paid (the “October Late
Fee”);
WHEREAS,
the Company did not meet the Equity Conditions for the January 1, 2009 Dividend
Payment Date and did not pay the dividend within 3 Trading Days thereof, giving
rise to a late fee of 18% per annum until the dividend was paid (the “January
Late Fee”);
WHEREAS,
the Company did pay the January 1, 2009 Dividend in kind, but pursuant to the
terms of the Certificate of Designations, should not have been able to do
so;
WHEREAS,
the Purchasers wish to amend the Certificate of Designation to allow the Company
to pay dividends in kind without regard to the Equity Conditions for all of 2009
in exchange for a discount to the VWAP used to calculate the number of shares
issuable;
WHEREAS,
the Company already paid the January 1, 2009 dividend in-kind, but without the
proper discount that the Parties have agreed upon;
NOW
THEREFORE, be it resolved that Purchasers hereby wish to waive certain terms in
the RRA and Certificates of Designation in consideration for certain covenants
of the Company.
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1.
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Capitalized
terms used and not defined herein shall have the meanings ascribed to them
in the SPA, the RRA or the Certificate of Designations, as
applicable.
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2.
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Amendment
to the Registration Rights
Agreement
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a.
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The
Company acknowledges that it owes the Purchasers the RRA Amount
Owed.
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b.
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The
Purchasers agree to accept payment of the RRA Amount Owed in duly
authorized, validly issued, fully paid and non-assessable shares of Common
Stock at a price equal to 72% of the average of the immediately preceding
20 day’s daily volume weighted average price for the Common Stock as
reported by Bloomberg Financial L.P. (the “72%, 20-Day
VWAP”).
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c.
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The
Purchasers agree to waive any liquidated damages which have accrued and
may accrue under the RRA through April 10, 2009 so long
as:
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i.
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The
Company responds to the current round of SEC Comments and files an amended
registration statement by April 10,
2009.
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ii.
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The
Company responds to any subsequent SEC comments within 10 days of receipt
thereof pursuant to Section 2(b)(iii) of the
RRA.
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iii.
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The
registration statement is declared effective by the SEC on or before
December 31, 2009. For the avoidance of doubt, the text through the
parenthetical in the definition of “Effectiveness Date” in Section 1 of
the RRA will be deleted in its entirety and replaced
with:
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““Effectiveness Date”
means, with respect to the Initial Registration Statement required to be filed
hereunder, December 31, 2009”
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d.
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The
definition of Holder Registrable Securities in Section 1 of the RRA will
be deleted in its entirety and replaced
with:
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““Holder Registrable
Securities” means in the order of priority for registration (i) those
Series A Warrants issued to the Purchasers pursuant to the SPA; (ii) those
Series B Warrants issued to the Purchasers pursuant to the SPA; (iii) those
Series C Warrants issued to the Purchasers pursuant to the SPA and (iv) the
Series A Effectiveness Warrants, if issued pursuant to Section 2(c). For the
avoidance of doubt, in the event of SEC cutbacks pursuant to Rule 415, each
successive class of security listed herein will be registered in full before the
next class is registered.”
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e.
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The
language before the first parenthetical in Section 3(c) of the RRA shall
be deleted in its entirety and replaced with the
following:
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“(c) If
all of the Registrable Securities are not registered for resale pursuant to one
or more effective Registration Statements, other than due to an Excusable Delay,
on or before December 31, 2009”
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3.
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Amendment
to the Certificate of Designations. By their execution hereof, each
Purchaser consents to the amendment of the Certificate of Designations
pursuant to the terms hereof.
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a.
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Section
3(a) of the Certificate of Designations shall be amended to include a
clause 3(a)(i) which shall state:
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“a)(i)
Dividends in Kind for
2009. The Holders shall be entitled to receive and the Corporation shall
pay, prior to the payment of any dividends or other cash or in-kind distribution
(other than a dividend payable solely in other shares of Common Stock) in
respect of Junior Securities, cumulative dividends at the rate per share (as a
percentage of the Stated Value per share) of 8% per annum (subject to increase
pursuant to Section 9(b)) payable quarterly on January 1, April 1, July 1 and
October 1, in shares of Common Stock which shall be valued solely for such
purpose at 72% of the average of the VWAPs for the 20 consecutive Trading Days
ending on the Trading Day that is immediately prior to the Dividend Payment Date
(the “72%, 20-Day VWAP”).
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b.
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The
heading of Section 3(a) shall be deleted in its entirety and replaced with
the following: “(ii) Dividends in Cash or
in Kind after 2009.” All other text of such section shall remain in
full force and effect for all Dividend Payment Dates occurring on or after
January 1, 2010.
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c.
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“Section
9, Redemption Upon Triggering Events” shall be and hereby is deleted in
its entirety.
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4.
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Past
Dividend Payments and Late Fees
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a.
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The
October 1, 2008 Dividend Payment. The Company shall pay to the Purchasers
the October Late Fee in shares of Common Stock, valued at the 72%, 20-Day
VWAP.
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b.
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The
Parties acknowledge that the Company paid the January 1, 2009 Dividend
using a 90% 20-Day VWAP before this Amendment Agreement was entered into.
In consideration for the waivers contained herein, at the time that the
Company issues its April 1, 2009 Dividend Payment, the Company shall also
issue to the Purchasers the difference between those shares issued as
partial payment of the January 1, 2009 Dividend and that number of shares
which would be issuable using the 72% 20-Day VWAP (the “January
Difference”).
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c.
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The
January 1, 2009 Dividend Payment and Late Fee. The Company
shall pay to the Purchasers the January Late Fee in shares of Common
Stock, valued at the 72%, 20-Day
VWAP.
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5.
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Agreement
regarding the 72% 20-Day VWAP. The Parties agree that the 72% 20-Day VWAP
shall be calculated using the 20 days immediately preceding April 1, 2009
in calculating the number of shares issuable pursuant to the (i) RRA
Amount Owed, (ii) October Late Fee, (iii) January Late Fee and (iv) the
January Difference.
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[signatures
to follow]
IN WITNESS WHEREOF, the Company and the
Purchasers have agreed to the terms herein and this Amendment Agreement is
effective as of March 27, 2009.
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THE
COMPANY:
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| XXXX WIND, INC. | ||
| /s/Xxxx X. Xxxxxx | ||
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By:
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Xxxx
X. Xxxxxx
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Title:
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President
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THE
PURCHASERS:
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| VISION OPPORTUNITY MASTER FUND, LTD. | ||
| /s/Xxxx Xxxxxxxx | ||
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By:
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Xxxx
Xxxxxxxx
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Title:
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Director
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| DAYBREAK SPECIAL SITUATIONS MASTER FUND, LTD. | ||
| /s/Xxxxx Xxxx | ||
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By:
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Xxxxx
Xxxx
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Title:
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Managing
Partner
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| XXXXXX XXXX | ||
| /s/Xxxxxx Xxxx | ||
| XXXXX XXXXXX | ||
| /s/ Xxxxx Xxxxxx | ||
