AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
AMENDMENT
NO. 1 TO
THIS
AMENDMENT NO. 1 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").
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 SECTION 7(b)(xiv).
Section
7(b)(xiv) of the Agreement is hereby amended and replaced in its entirety with
the following:
"(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, which Convertible Debentures shall be in the form
attached hereto as Exhibit G."
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2. AMENDMENT
OF SECTION 4(l).
Section
4(l) of the Agreement is hereby amended and replaced in its entirety with the
following:
"(l) Notwithstanding
the foregoing, the Company shall be entitled to issue, provided that such
issuances do not result in an Organizational Change or a Change of Control
Transaction (as this term is defined in the Convertible Debentures), and
provided further that, in the case of items (1) through (5) and (7) and (8)
below, the Company shall deliver written notice to the Buyer at least ten (10)
calendar days prior to the occurrence of any such items (and the Buyer hereby
agrees to retain the confidentiality of such information until such time as
the
Company shall publicly disclose the same): (1) shares of Common Stock
or rights,
warrants, options or other securities or debt that are convertible into or
exchangeable for shares of Common Stock ("Common
Stock Equivalents”)
issued
to financial institutions or lessors in connection with commercial credit
arrangements, equipment financings, commercial property lease transactions
or
similar transactions; (2) Common Stock Equivalents of the Company disclosed
on the Disclosure Schedule attached hereto issued prior to, and outstanding
on,
the Initial Closing Date and Common Stock issuable on exercise or conversion
of
such Common Stock Equivalents, provided such Common Stock Equivalents are not
materially amended after the Initial Closing Date; (3) securities to an
entity which is not an “Affiliate” of the Company (as defined in Rule 144
of the Securities Act) as a component of any business relationship with such
entity for the purpose of (x) joint venture, technology licensing, or
development activities, (y) distribution, supply or manufacture of the
Company’s products or services, or (z) any other arrangement involving corporate
partners that are primarily for purposes other than to raise equity capital;
(4) securities as consideration for a merger or consolidation or the
acquisition of a business, product, license, or other assets of another person
or entity which is not an “Affiliate” of the Company; (5) any issuance as a
result of any stock split or stock dividend applicable to all holders of Common
Stock; (6) Common Stock or Common Stock Equivalents issued for compensatory
purposes pursuant to any of the Company's equity compensation plans, or as
inducement grants to directors and officers in accordance with Section 4(k)
herein; (7) issuances of securities in connection with the transactions pursuant
to or contemplated by the Solar Purchase Agreement or the CRE Merger Agreement;
and (8) shares of Common Stock issued upon conversion of, or as interest or
liquidated damages in respect of, Convertible Debentures, or upon exercise
of
the Warrants."
3. EFFECT
ON OTHER TERMS.
This
Amendment shall be deemed effective as of March 30, 2006, as if entered into
on
such date. All other terms set forth in the Agreement shall remain unchanged
and
this Amendment and the Agreement shall be deemed a single integrated agreement
for all purposes.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
the
parties have caused this Amendment No. 1 to Securities Purchase Agreement to
be
duly executed as of day and year first above written.
COMPANY:
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OPEN
ENERGY CORPORATION
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By: /s/ Xxxxx Xxxxxxx | |
Name:
Xxxxx Xxxxxxx
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Title:
President
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BUYER:
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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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