AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT
AMENDMENT
NO. 2 TO
THIS
AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT
(this
“Amendment”),
is
entered into by and between OPEN
ENERGY CORPORATION (formerly Barnabus Energy, Inc.),
a Nevada
corporation (the “Company”),
and
the undersigned Buyer (the “Buyer”).
WHEREAS:
A. The
parties hereto previously entered into that certain Securities Purchase
Agreement dated as of March 30, 2006 (the "Agreement")
which
was amended effective as of March 30, 2006 pursuant to Amendment No. 1 to
Securities Purchase Agreement (the “Amendment
No. 1”).
B. The
parties to the Agreement now desire to amend certain provisions set forth in
the
Agreement as more fully described herein.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Company and the Buyer hereby agree as
follows:
1. AMENDMENT
OF THE 2nd“WHEREAS”
CLAUSE.
The
2nd“WHEREAS”
Clause
of the Agreement is hereby amended and replaced in its entirety
with the following:
“WHEREAS,
the
parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Buyer, as provided herein,
and
the Buyer shall purchase up to Fifteen Million Dollars ($15,000,000) of secured
convertible debentures (the “Convertible
Debentures”),
which
shall be convertible into shares of the Company’s common stock, par value $0.001
(the “Common
Stock”)
(as
converted, the “Conversion
Shares”)
of
which Ten Million Dollars ($10,000,000) shall be funded on the fifth
(5th)
business day following the date hereof (the “First
Closing”)
provided however that Five Million Dollars ($5,000,000) shall be funded to
the
Company on the First Closing and Five Million Dollars shall be deposited in
escrow with Xxxxx Xxxxxxxx, Esq. and released to the Company on the date the
registration statement (the “Registration
Statement”),
pursuant to the Investor Registration Rights Agreement dated March 31, 2006,
is
filed with the United States Securities and Exchange Commission (the
“SEC”)
(the
“Escrowed
First Closing Amount”),
One
Million Five Hundred Thousand Dollars ($1,500,000) shall be funded on the date
hereof (the “Second
Closing”)
and
Three Million Five Hundred Thousand Dollars ($3,500,000) shall be funded on
the
date the registration statement filed pursuant to the Investor Registration
Rights Agreement (the “Registration
Statement”)
is
declared effective by the SEC (the “Third
Closing”)
(each
of the First Closing, the Second Closing and the Third Closing are referred
to
as a “Closing”
and
collectively referred to as the “Closings”),
for a
total purchase price of up to Fifteen Million Dollars ($15,000,000), (the
“Purchase
Price”
and/or
the “Subscription
Amount”);
and”
-1-
2. AMENDMENT
OF SECTION 1(b).
Section
1(b) of the Agreement is hereby amended and replaced in its entirety with the
following:
“(b) Closing
Date.
The
First Closing of the purchase and sale of the Convertible Debentures shall
take
place at 10:00 a.m. Eastern Standard Time on the fifth (5th)
business day following the date hereof, subject to notification of satisfaction
of the conditions to the First Closing set forth herein and in Sections 6 and
7
below (or such later date as is mutually agreed to by the Company and the Buyer)
(the “First
Closing Date”),
the
Second Closing of the purchase and sale of the Convertible Debentures shall
take
place at 10:00 a.m. Eastern Standard Time on the date hereof, subject to
notification of satisfaction of the conditions to the Second Closing set forth
herein and in Sections 6 and 7 below (or such later date as is mutually agreed
to by the Company and the Buyer) (the “Second
Closing Date”)
(and
the Third Closing of the purchase and sale of the Convertible Debentures shall
take place at 10:00 a.m. Eastern Standard Time on the date the Registration
Statement is declared effective by the SEC, subject to notification of
satisfaction of the conditions to the Third Closing set forth herein and in
Sections 6 and 7 below (or such later date as is mutually agreed to by the
Company and the Buyer) (the “Third
Closing Date”)
(collectively referred to a the “Closing
Dates”).
The
Closing shall occur on the respective Closing Dates at the offices of Yorkville
Advisors, LLC, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxx Xxxxxx 00000
(or
such other place as is mutually agreed to by the Company and the
Buyer).”
3. AMENDMENT
OF SECTION 4(g)(iv).
Section
4(g)(iv) of the Agreement is hereby amended and replaced in its entirety with
the following:
“(iv) The
Company shall issue to the Buyer warrants to purchase an aggregate of seven
million (7,000,000) shares of the Company’s Common Stock for a period of
five (5) years at an exercise price of $1.50 per share in substantially the
form
attached hereto as Exhibit F of which a warrant to purchase three million five
hundred thousand (3,500,000) shares of Common Stock shall be issued on the
First
Closing Date and a warrant to purchase three million five hundred thousand
(3,500,000) shares of Common Stock shall be issued on the release to the Company
of the Escrowed First Closing Amount. Furthermore a warrant to purchase an
aggregate of six million two hundred fifty thousand (6,250,000) shares of the
Company’s Common Stock for a period of five (5) years at an exercise price
of $0.80 per share in substantially the form attached hereto as Exhibit F shall
be issued to the Buyer on the Second Closing Date (all warrants issued hereunder
are collectively referred to as the “Warrants”).
The
shares of Common Stock issuable under the Warrants shall collectively be
referred to as the “Warrant
Shares”.”
4. AMENDMENT
OF SECTION 7(b). Section
7(b) is hereby amended and replaced in its entirety with the following:
(b) The
obligation of the Buyer hereunder to accept the Convertible Debentures at the
Second Closing is subject to the satisfaction, at or before the Second Closing
Date, of each of the following conditions:
-2-
(xii) The
Common Stock shall be authorized for quotation on the OTCBB, trading in the
Common Stock shall not have been suspended for any reason.
(xiii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 above, in which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Second Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date) and the Company shall have performed, satisfied
and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Second Closing Date. If requested by the Buyer,
the
Buyer shall have received a certificate, executed by two officers of the
Company, dated as of the Second Closing Date, to the foregoing effect and as
to
such other matters as may be reasonably requested by the Buyer including,
without limitation an update as of the Second Closing Date regarding the
representation contained in Section 3(c) above.
(xiv) The
Company shall have executed and delivered to the Buyer the Convertible
Debentures in the respective amounts set forth opposite the Buyer’s name on
Schedule I attached hereto.
(xv) The
Company shall have delivered subsidiary Security Agreements for 2093603 Ontario,
Inc. and Barnabus/CRE Acquisition Corp.
(xvi) The
Company shall have filed a form UCC-1 as well as registering in Ontario Personal
Property Registry a financing statement or such other forms as may be required
to perfect the Buyer’s interest in the Pledged Property as detailed in the
subsidiary Security Agreement dated the date hereof and provided proof of such
filing to the Buyer(s).
(xvii) The
Company shall have certified that all conditions to the Second Closing have
been
satisfied. If requested by the Buyer, the Buyer shall have received a
certificate, executed by the two officers of the Company, dated as of the Second
Closing Date, to the foregoing effect.
5. ADDITION
OF NEW SECTION 7(c). A
new
subsection (c) is added to Section 7 as follows:
(c) The
obligation of the Buyer hereunder to accept the Convertible Debentures at the
Third Closing is subject to the satisfaction, at or before the Third Closing
Date, of each of the following conditions:
(xviii) The
Common Stock shall be authorized for quotation on the OTCBB, trading in the
Common Stock shall not have been suspended for any reason.
-3-
(xix) The
representations and warranties of the Company shall be true and correct in
all
material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 above, in which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Second Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date) and the Company shall have performed, satisfied
and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Third Closing Date. If requested by the Buyer, the
Buyer shall have received a certificate, executed by two officers of the
Company, dated as of the Third Closing Date, to the foregoing effect and as
to
such other matters as may be reasonably requested by the Buyer including,
without limitation an update as of the Third Closing Date regarding the
representation contained in Section 3(c) above.
(xx) The
Company shall have executed and delivered to the Buyer the Convertible
Debentures in the respective amounts set forth opposite the Buyer’s name on
Schedule I attached hereto.
(xxi) The
Company shall have certified that all conditions to the Second Closing have
been
satisfied and that the Registration Statement filed with the SEC has been
declared effective. If requested by the Buyer, the Buyer shall have received
a
certificate, executed by the two officers of the Company, dated as of the Third
Closing Date, to the foregoing effect.
-4-
6. WAVIER. Buyer
acknowledges that it has reviewed and understands the disclosures set forth
in
the Company's Current Report on Form 8-K/A Amendment No. 2, filed with the
SEC
on August 8, 2006 (the "Form 8-K"). Buyer hereby waives the effect, if any,
of
the matters disclosed in the Form 8-K on the truth or correctness of the
representations and warranties in the Agreement, whether set forth under Section
3 or otherwise, or in any other Transaction Document, Convertible Debenture,
Warrant or certificate or document delivered by the Company pursuant to any
Transaction Document, Convertible Debenture or Warrant as of the date of the
Agreement, any Closing Date or as of any other applicable date. Buyer further
waives the effect, if any, of the matters disclosed in the Form 8-K on the
compliance or lack thereof with any covenant or agreement set forth in any
Transaction Document, Convertible Debenture or Warrant. In addition, Buyer
and
the Company agree that the matters disclosed in the Form 8-K shall be deemed
to
be an acceptable exception to the condition set forth in Sections 7(b)(xiii)
and
7(c)(xix) of the Agreement and the truth and correctness of the representations
and warranties described therein, whether or not such exception is expressly
stated in any applicable certificate.
7. CONFIRMATION
OF INTERPRETATION.
For the
avoidance of doubt, Buyer and the Company agree that the issuances of any
Warrants or Convertible Debentures following the First Closing Date, regardless
of the conversion or exercise price thereof, do not and shall not result in
any
adjustment to the exercise or conversion price of any prior issued Warrants
or
Convertible Debentures pursuant to Section 8 of any such prior issued Warrant
or
Section 3(c) of any such prior issued Convertible Debenture.
8. EFFECT
ON OTHER TERMS.
This
Amendment shall be deemed effective as of August 17, 2006. All other terms
set
forth in the Agreement shall remain unchanged and this Amendment, Amendment
No.
1 and the Agreement shall be deemed a single integrated agreement for all
purposes.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-5-
IN
WITNESS WHEREOF,
the
parties have caused this Amendment No. 2 to Securities Purchase Agreement to
be
duly executed as of day and year first above written.
COMPANY:
|
|
OPEN
ENERGY CORPORATION
|
|
By:
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
|
|
Title:
President and Chief Executive Officer
|
|
BUYER:
|
|
CORNELL
CAPITAL PARTNERS, LP
|
|
By:
Yorkville Advisors, LLC
|
|
|
Its:
General Partner
|
By:
/s/
Xxxx Xxxxxx
|
|
Name:
Xxxx Xxxxxx
|
|
Title:
President and Portfolio Manager
|
-6-