WARRANT AMENDMENT
This
WARRANT AMENDMENT (this “Amendment”) is dated as of April 30, 2010 by and among
Shengkai Innovations, Inc., a Florida corporation and formerly known as
“Southern Sauce Company, Inc.” (the “Company”), and Blue Ridge
Investments, LLC. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Warrant (as
defined below).
RECITALS
WHEREAS,
the Company entered into a Securities Purchase Agreement (as amended, the
“Securities Purchase Agreement”), dated as of July 18, 2008, pursuant to which
the Company conducted a private offering solely to accredited investors pursuant
to Rule 506 of Regulation D of the Securities Act of 1933, as amended, of its
series A preferred stock and series A warrants; and
WHEREAS,
pursuant to Sections 4(d), (e) and (f) of the Series A Warrant to Purchase
Shares of Common Stock of the Company that were delivered to the Purchaser (as
defined in the Securities Purchase Agreement) pursuant to the Securities
Purchase Agreement (the “Warrant”), the Purchaser had certain anti-dilution
protection in the event the Company issues any Additional Shares of Common Stock
or Common Stock Equivalents at a price per share less than the Warrant Price
then in effect; and
WHEREAS,
the Company has requested that the Majority Holders (as such term is defined in
the Warrant) amend the Warrant to delete Sections 4(d), (e) and (f) thereof; and
agree that in lieu of such provisions the Majority Holders of the Warrant shall
have a right to pre-approve any issuance of Additional Shares of Common Stock
and Common Stock Equivalents at a price less than the Warrant Price then in
effect and give retroactive effect to such amendment; and
WHEREAS,
pursuant to Section 11 of the Warrant, no provision of the Warrant may be
amended without the written consent of the Company and the Majority Holders;
and
WHEREAS,
Blue Ridge Investments, LLC constitutes the Majority Holders.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Amendment. Pursuant
to Section 11 of the Warrant, the parties hereto hereby amend the Warrant, as of
the date hereof, by:
(a) deleting Sections 4(d), (e) and
(f);
(b) replacing Section 4(d) with the
following:
“Issuance of Additional
Shares of Common Stock and Common Stock Equivalents.
Until the
expiration of this Warrant, Issuer shall not issue any Additional Shares of
Common Stock or Common Stock Equivalents (otherwise than as provided in the
foregoing subsections (a) through (c) of this Section 4), at a price per share
less than the Warrant Price then in effect or without consideration, without the
prior written consent of the Majority Holders; it being acknowledged and agreed
that such consent may be withheld, delayed or conditioned by the Majority
Holders in their sole discretion.”
2. Company Representations and
Obligations. The Company hereby represents and warrants to the
Purchaser, as of the date hereof, and agrees as follows:
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a.
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The
Company has the requisite corporate power and authority to enter into this
Warrant Amendment and to perform its obligations under the Warrant, as
amended hereby. The execution, delivery and performance of the Warrant
Amendment (and the Warrant, as amended hereby) by the Company have been
duly and validly authorized by all necessary corporate action, and no
further consent or authorization of the Company or its Board of Directors
or stockholders is required. This Warrant Amendment has been duly executed
and delivered by the Company and, together with the Warrant, as amended
hereby, constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of,
creditor’s rights and remedies or by other equitable principles of general
application. The execution and delivery of this Warrant
Amendment, and the performance of the Warrant, as amended, in each case by
the Company do not and will not (i) violate any provision of the Company’s
Articles or Bylaws, (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any material agreement, mortgage, deed of
trust, indenture, note, bond, license, lease agreement, instrument or
obligation to which the Company is a party or by which it or its
properties or assets are bound, (iii) create or impose a lien, mortgage,
security interest, charge or encumbrance of any nature on any property of
the Company under any material agreement or any commitment to which the
Company is a party or by which the Company is bound or by which any of its
respective properties or assets are bound, or (iv) result in a violation
of any federal, state, local or foreign statute, rule, regulation, order,
judgment or decree (including federal and state securities laws and
regulations) applicable to the Company or any of its subsidiaries or by
which any property or asset of the Company or any of its subsidiaries are
bound or affected.
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b.
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Except
as expressly set forth in Section 1 above, the Securities Purchase
Agreement, the Warrant and any other documents related thereto, shall
remain unmodified and in full force and effect and are hereby ratified and
confirmed.
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3. Effective Date of Warrant
Amendment. The parties agree that this Warrant Amendment shall be
effective retroactively to the date of the Warrant was first issued (i.e. July
18, 2008).
4. Governing Law;
Jurisdiction. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York.
5. Counterparts. This
Amendment may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party.
A facsimile signature shall be
deemed to be an original signature for purposes of this
Amendment.
6. Severability. If any
provision of this Amendment shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Amendment or the validity or
enforceability of this Amendment in any other jurisdiction.
[REMAINDER
OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGES TO FOLLOW]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
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By:
____________________________
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Name:
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Title:
Chief Executive Officer
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BLUE
RIDGE INVESTMENTS, LLC
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By:
____________________________
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Name:
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Title:
Authorized Signatory
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