AMENDMENT TO SECURITIES PURCHASE AGREEMENT
AMENDMENT TO SECURITIES PURCHASE
AGREEMENT
THIS AMENDMENT TO SECURITIES PURCHASE
AGREEMENT is dated as of December
24 ,
2010 (this “Amendment”), by and
among Emerald Dairy Inc., a Nevada
corporation (the “Company”), and the
investors set forth on the signature page hereto (each, an “Investor”, and
collectively, the “Investors”).
RECITALS:
A. On
December 24, 2009, the Company sold to the Investors, for an aggregate purchase
price of $1,750,000, (a) 10% promissory notes in the aggregate principal amount
of $1,750,000, due on December 24, 2010 (the “Notes”), and (b)
three-year warrants to purchase an aggregate of 536,809 shares of the Company’s
common stock, at an exercise price of $1.63 per share (the “Warrants”), pursuant
to the terms and conditions of a Securities Purchase Agreement (the “Purchase
Agreement”), Pledge Agreement, Irrevocable Payment Instruction, Put Agreement
and certain other papers, agreements, documents, instruments and certificates
necessary to carry out the purposes thereof (collectively, with the Notes and
Warrants, the “Transaction
Documents”).
B. The
parties desire to amend the Transaction Documents, in order to modify the terms
and conditions thereof upon the terms and subject to the conditions set forth in
this Amendment.
NOW, THEREFORE, in
consideration of the premises and the other mutual covenants contained herein,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Accuracy
of Recitals; Definitions. Each of the Company and the
Investors acknowledges and agrees that the foregoing Recitals are true and
accurate and are incorporated herein by reference. Capitalized terms
used and not otherwise defined herein are used as defined in the Transaction
Documents.
2. Amendments
to Transaction Documents.
2.1 Subject
to the satisfaction of the conditions set forth in Section 3 below, the Company
and Investors hereby agree as follows:
(a) the
Maturity Date of each Note is hereby extended from December 24, 2010 to February
22, 2011 (the “New
Repayment Date”); and
(b) on
or before December 24, 2010, the Company will pay the Investors an aggregate of
$43,150.68, by a single wire transfer of immediately available funds to a bank
account designated by the Investors, which represents the full amount of
interest payable through the New Repayment Date.
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3. Conditions
Precedent. The effectiveness
of this Amendment is subject to satisfaction of each of the following conditions
precedent:
3.1 The
representations and warranties made by the Company in this Amendment are
accurate in all respects.
3.2 No
Event of Default shall be in existence under the Notes.
3.3 No
Material Adverse Effect has occurred since the date of filing of the Company’s
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30,
2010.
3.4 No
suit, proceeding or action has been commenced against or involving the Company
which, if successful, would result in a Material Adverse Effect.
3.5 Each
Investor shall have received the following documents and other items from the
Company, duly executed by an authorized representative of the Company, as
necessary:
(a) An
executed copy of this Amendment.
(b) Evidence
that the execution, delivery and performance of this Amendment by the Company
has been duly authorized by all necessary corporate action.
3.6 The
Company shall have received the following documents and other items from each
Investor, duly executed by an authorized representative of such Investor, as
necessary:
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(a)
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An
executed copy of this Amendment.
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(b) Evidence
that the execution, delivery and performance of this Amendment by the Investor
has been duly authorized by all necessary corporate action.
4. Transaction
Documents in Full Force and Effect as Amended. Except as
specifically amended hereby, the Transaction Documents shall remain in full
force and effect and hereby are ratified and confirmed as so
amended. This Amendment shall not constitute a novation, satisfaction
and accord, cure, release and/or satisfaction of the Transaction Documents, but
shall constitute an amendment thereof. The parties hereto agree to be
bound by the terms and conditions of the Transaction Documents as amended by
this Amendment, as though such terms and conditions were set forth herein and
therein in full. Each reference in the Transaction Documents or any
other document or instrument to any Transaction Documents, or words of similar
import shall mean and be a reference to the Transaction Documents as amended
hereby.
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5. Representations. The Company
hereby represents and warrants to the Investors as follows: (a) it is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; (b) the execution, delivery and performance by it
of this Amendment are within its powers, have been duly authorized, and do not
contravene (i) its articles of incorporation, bylaws or other organizational
documents, or (ii) any applicable law, statute, regulation, ordinance, tariff or
order; (c) no consent, license, permit, approval or authorization of, or
registration, filing or declaration with any governmental authority or other
person is required in connection with the execution, delivery, performance,
validity or enforceability of this Amendment by or against it; (d) this
Amendment has been duly executed and delivered by it; (e) this Amendment
constitutes its legal, valid and binding obligations enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally or by general principles of equity; (f) to the best of its knowledge, it is in compliance with all covenants and
agreements in the Transaction Documents and it is not in default under the
Transaction Documents, and no Event of Default exists, has occurred and is
continuing or would result by the execution, delivery or performance of this
Amendment; and (g) the representations and warranties contained in the
Transaction Documents are true and correct in all material respects as of the
date hereof as if made on the date hereof.
6. Miscellaneous.
6.1 The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
be deemed to be an amendment or
modification of, or operate as a waiver of, any provision of the
Transaction Documents, or any right, power or remedy of the Investors, nor
constitute a waiver of any provision of the Transaction Documents, or any other
document, instrument and/or agreement executed or delivered in connection
therewith or of any Event of Default under any of the foregoing, in each case
whether arising before or after the date hereof or as a result of performance
hereunder or thereunder. This Amendment shall not preclude the future
exercise of any right, remedy, power or privilege available to the parties
whether under the Transaction Documents,
at law, or otherwise.
6.2 This
Amendment may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto or thereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement. Each party agrees that it will be bound by its own
facsimile signature and that it accepts the facsimile signature of
each other party. The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction
of any of the provisions hereof or thereof. Whenever the context and
construction so require, all words herein in the singular number herein shall be
deemed to have been used in the plural, and vice
versa, and the masculine gender shall
include the feminine and neuter and the neuter shall include the masculine and
feminine.
6.3 This
Amendment may not be changed, amended, restated, waived, supplemented,
discharged, canceled, terminated or otherwise modified
orally or by any course of dealing or in any manner other
than as provided in the applicable Transaction Documents. This
Amendment shall be considered part of the Transaction Documents for all purposes
under the Transaction Documents. In the event of any inconsistency
between this Amendment and any of the other Transaction Documents, the terms of
this Amendment shall control.
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6.4 The
Transaction Documents constitute the final, entire agreement and understanding
between the parties with respect to the subject matter hereof and thereof and
may not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements between the parties, and shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto and
thereto. There are no unwritten oral agreements between the parties
with respect to the subject matter hereof and thereof. If any
provision of this Amendment is adjudicated to be invalid under applicable laws
or regulations, such provision shall be inapplicable to the extent of such
invalidity without affecting the validity or enforceability of the remainder of
this Amendment which shall be given effect so far as possible.
6.5 THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW
PROVISIONS SET FORTH IN THE TRANSACTION DOCUMENTS, AS AMENDED BY THIS
AMENDMENT.
6.6 Each
party shall execute and deliver such other documents, certificates and/or
instruments and
take such other actions as reasonably requested by the other party in
order more effectively to consummate the transactions contemplated
hereby.
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IN
WITNESS WHEREOF,
the parties have caused this Amendment to be executed under seal
by their respective
officers thereunder duly authorized, as of the date first above
written.
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COMPANY:
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By:
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/s/ Xxx Xxxxxx
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Name:
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Xxx Xxxxxx
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Title:
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Chief Financial Officer
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INVESTORS:
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XXXXXX
INVESTMENT COMPANY, L.P.
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By:
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/s/ Xxx Xxxxxx
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Name:
Xxx Xxxxxx
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Title:
Owner
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KNIGHT
INSURANCE COMPANY, LTD.
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By:
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/s/ Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
President
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XXXXXX,
LLC
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By:
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/s/ Xxx Xxxxxx
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Name:
Xxx Xxxxxx
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Title:
Owner
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ACKNOWLEDGED:
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AFH
HOLDING AND ADVISORY LLC
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By:
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/s/ Xxxx X. Xxxxxxxxxxx
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Name:
Xxxx X. Xxxxxxxxxxx
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Title:
Chairman, Managing Director
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