WAIVER
THIS
WAIVER
(this
“Waiver”),
is
entered into by and between OPEN
ENERGY CORPORATION,
a
Nevada corporation (the “Company”),
and
Cornell Capital Partners, LP (“Cornell”).
WHEREAS:
A. The
Company, pursuant to that certain Securities Purchase Agreement by and between
the Company and Cornell, dated as of March 30, 2006 (the "Securities Purchase
Agreement"), previously executed and delivered certain Transaction Documents,
Convertible Debentures and Warrants (each of such terms as defined in the
Securities Purchase Agreement) (the Transaction Documents, Convertible
Debentures and Warrants, being collectively referred to herein as, the
"Applicable Documents").
B. On
August
8, 2006, the Company filed with the Securities and Exchange Commission an
amended Current Report on Form 8-K/A disclosing certain tax liabilities to
which
the Company is subject as a result of a failure to withhold and pay taxes in
connection with certain grants of equity compensation to Company officers and
employees (the "Tax Liabilities").
C. The
Company and Cornell have agreed that, notwithstanding certain restrictions
contained in the Applicable Documents, the Company shall be permitted to take
certain actions to remedy the Tax Liabilities that might otherwise be restricted
under the Applicable Documents.
NOW,
THEREFORE,
in
consideration of the promises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Company and Cornell hereby agree as
follows:
1. WAIVER
OF CERTAIN APPLICABLE DOCUMENT RESTRICTIONS.
Notwithstanding anything to the contrary set forth in any Applicable Document,
whether delivered on, prior to or following the date hereof, the Company shall
be permitted to take any of the following actions solely as a means to satisfy
in whole or in part its Tax Liabilities:
(A) Repurchase
any vested shares of Common Stock of the Company ("Common Stock") previously
granted to any officer or other employee of the Company at prevailing fair
market value (as determined by the Board of Directors of the Company, in good
faith), solely for the purpose of enabling the Company to satisfy the portion
of
the Tax Liabilities for which such officer or other employee is
responsible.
(B) Cancel
any unvested shares of Common Stock previously granted to any officer or other
employee of the Company.
(C) Grant
substitute equity awards, including one or more of substitute restricted stock
awards, stock options, which may be issued at a discount to fair market value,
restricted stock units or stock appreciation rights, in replacement of shares
of
Common Stock cancelled pursuant to the immediately preceding
paragraph.
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(D) If
approved by the Board of Directors of the Company, permit any officer or other
employee of the Company to sell, pledge or otherwise transfer a number of shares
of Common Stock held by such person to third parties.
2. EFFECT
ON OTHER TERMS.
This
Waiver shall be deemed effective as of August 17, 2006. All other terms set
forth in the Applicable Documents shall remain unchanged.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
the
parties have caused this Waiver to be duly executed as of day and year first
above written.
OPEN
ENERGY CORPORATION
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By:
/s/
Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title:
President and Chief Executive Officer
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CORNELL
CAPITAL PARTNERS, LP
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By:
Yorkville Advisors, LLC
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Its:
General Partner
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By:
/s/
Xxxx Xxxxxx
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Name:
Xxxx Xxxxxx
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Title:
President and Portfolio Manager
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