AMENDMENT AGREEMENT
Exhibit
10.1
THIS AMENDMENT AGREEMENT (the
“Agreement”),
dated as of April 20, 2009, is by and among Akeena Solar, Inc., a Delaware
corporation (the “Company”) and the
investors signatory hereto (each, a “Purchaser” and
collectively, the “Purchasers”).
WHEREAS, the Company and the
Purchasers are parties to that certain Securities Purchase Agreement (the “Purchase Agreement”),
dated February 26, 2009, pursuant to which the Company issued to the Purchasers
common stock, preferred stock and common stock purchase warrants, including, the
Series G Common Stock Purchase Warrants to purchase up to 2,196,400 shares of
Common Stock, in the aggregate, in the individual amounts set forth on Schedule A attached
hereto (the “Existing
Warrants”).
WHEREAS, the parties wish to
amend certain terms of the Existing Warrants, provide for the current exercise
of a portion of the Existing Warrants, and provide for the issuance to the
Purchases of additional warrants based on the terms of the Existing Warrants,
all pursuant to the terms hereof.
WHEREAS, capitalized terms
used herein, but not otherwise defined, shall have the meanings ascribed to such
terms as set forth in the Purchase Agreement.
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and
for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Purchasers and the Company agree as
follows:
1. Exercise of Existing
Warrants. Each Purchaser hereby agrees, severally and not
jointly with the other Purchasers, to exercise the number of such Purchaser’s
Existing Warrants set forth on Schedule B attached
hereto simultaneously with or prior to the Closing, at an exercise price equal
to $1.12 per share, for aggregate gross cash proceeds to be received by the
Company simultaneously with or prior to the Closing from all Purchasers of
$476,000, otherwise pursuant to the terms of the Existing
Warrants. The cash exercise price to be paid by each Purchaser shall
be referred to as such Purchaser’s “Exercise Amount” and
shall be as set forth on Schedule
B. Each Purchaser shall execute and deliver such Purchaser’s
Exercise Amount to the bank account designated in writing by the Company set
forth on Schedule
C attached hereto; provided, however, that a
Purchaser shall not be required to exercise such certain portion of its Existing
Warrant to the extent that Section 2(e) of the Existing Warrant is violated by
the resulting Common Stock issuance of such certain portion. Immediately upon
delivery of the Exercise Amount, the Company shall instruct the Transfer Agent
to deliver, on an expedited basis, a certificate for the shares purchased
hereunder by crediting the account of such Purchaser’s prime broker with the
Depository Trust Company through its Deposit Withdrawal Agent Commission system,
as set forth on each Purchaser’s signature page hereto.
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2. Issuance of New
Warrants. Each Purchaser shall be issued new Series G Common
Stock Purchase Warrants, which shall be identical in form to the Existing
Warrants but shall have a Termination Date on August 10, 2009 and shall be
registered in the name of such Purchaser to purchase up to a number of shares of
Common Stock as set forth on Schedule D hereto
(the “New Series G
Warrants”). The shares of Common Stock underlying such New
Series G Warrants shall be referred to herein as the “Warrant
Shares”. The date of the closing of the exercise of the
Existing Warrants and other transactions contemplated hereunder shall be
referred to as the “Closing”.
3. Registration Statement and
Prospectus Supplement. The New Series G Warrants and the
Warrant Shares shall be issued pursuant to the effective Registration Statement
(as defined in the Purchase Agreement), including the Prospectus Supplement
(which may be delivered in accordance with Rule 172 under the Securities Act) to
be filed in connection herewith.
4. Amendment to the Term of the
Existing Warrants. The term of the Existing Warrants shall be
extended such that the Termination Date thereof shall be on or prior to
August 10, 2009.
5. Effect on
Transaction Documents. Except
as expressly set forth herein, all of the terms and conditions of the
Transaction Documents shall continue in full force and effect after the
execution of this Agreement, and shall not be in any way changed, modified or
superseded by the terms set forth herein. This Agreement shall not constitute a
novation or satisfaction
and accord of any Transaction Document.
6. Filing of Form
8-K. On or before 8:30 am (NY time) on the Trading Day
immediately following the date hereof, the Company shall file a Current Report
on Form 8-K, reasonably acceptable to the Holders disclosing the material terms
of the transactions contemplated hereby and attaching this Agreement as an
exhibit thereto.
7. Conditions to Purchasers’
Obligations. The respective obligations of the Purchasers
hereunder in connection with the Closing are subject to the following conditions
being met:
(a) the
accuracy in all material respects on the date of the Closing of the
representations and warranties of the Company contained herein;
(b) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing shall have been performed;
(c) all
Purchasers that are party to the Purchase Agreements shall have agreed to the
terms and conditions of this Agreement, including exercising their respective
Existing Warrants on a pro-rata basis pursuant to the terms
hereunder;
(d) the
delivery of an opinion of Company Counsel regarding this Agreement and the
issuance and delivery of the New Series G Warrants hereunder, in form and
substance reasonably acceptable to the Purchasers;
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(e) there
shall have been no Material Adverse Effect with respect to the Company since the
date hereof; and
(f) from
the date hereof to the Closing, trading in the Common Stock shall not have been
suspended by the Commission (except for any suspension of trading of limited
duration agreed to by the Company, which suspension shall be terminated prior to
the Closing), and, at any time prior to the Closing, trading in securities
generally as reported by Bloomberg Financial Markets shall not have been
suspended or limited, or minimum prices shall not have been established on
securities whose trades are reported by such service, or on any Trading Market,
nor shall a banking moratorium have been declared either by the United States or
New York State authorities nor shall there have occurred any material outbreak
or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial
market which, in each case, in the reasonable judgment of each Purchaser, makes
it impracticable or inadvisable to consummate the transactions
hereunder.
8. Conditions to Company’s
Obligations. The obligations of the Company hereunder in connection with
the Closing as to each Purchaser are subject to the following conditions being
met:
(a) the
accuracy in all material respects on the date of the Closing of the
representations and warranties of such Purchaser contained herein;
(b) all
obligations, covenants and agreements of such Purchaser required to be performed
at or prior to the Closing shall have been performed; and
(c) receipt
by the Company of the proceeds from exercise of Existing Warrants by such
Purchaser, in the amount set forth on Schedule
B.
9. Representations and
Warranties of the Company. The Company hereby makes the
representations and warranties set forth below to the Purchasers, that as of the
date of its execution of this Agreement:
(a) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by
the Company, the Board of Directors or the Company’s stockholders in connection
therewith other than in connection with the Required Approvals. This
Agreement has been duly executed by the Company and, when delivered in
accordance with the terms hereof will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
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(b) No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not: (i) conflict with or violate any
provision of the Company’s certificate of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the properties or
assets of the Company, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of,
any agreement, credit facility, debt or other material instrument (evidencing
Company debt or otherwise) or other understanding to which the Company is a
party or by which any property or asset of the Company is bound or affected, or
(iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the Company is
subject (including federal and state securities laws and regulations), or by
which any property or asset of the Company is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or reasonably be
expected to result in a Material Adverse Effect.
(c) Capitalization. The
capitalization of the Company is as set forth in the Registration Statement or
Prospectus Supplement. The New Series G Warrants and Warrant Shares,
when issued in accordance with the terms of this Agreement will be duly
authorized, validly issued, fully paid and nonassessable. Except as described in
this Section 9(c), the Registration Statement or Prospectus Supplement, or as
set forth on Schedule
9(c), there are no issued or outstanding securities and no issued or
outstanding options, warrants or other rights, or commitments or agreements of
any kind, contingent or otherwise, to purchase or otherwise acquire shares of
Common Stock or any issued or outstanding securities of any nature convertible
into shares of Common Stock.
(d) Other Representations,
Warranties and Covenants. Except as set forth on Schedule 9(d), the
representations, warranties and covenants of the Company with respect to the New
Series G Warrants and Warrant Shares shall be identical in all respects to the
representations, warranties and covenants of the Company with respect to the
Existing Warrants (and shares of Common Stock underlying the Existing Warrants)
issued pursuant to the Purchase Agreement and other Transaction Documents and
the Company hereby makes such representations, warranties and covenants as
though fully set forth herein as of the date hereof, and all such
representations, warranties and obligations are incorporated herein by
reference.
10. Representations and
Warranties of the Purchasers. Each Purchaser, for itself and
for no other Purchaser, hereby makes the representations and warranties to the
Company that it made in the Purchase Agreement as though fully set forth herein
as of the date hereof (other than with respect to Section 3.2(e) thereof, as to
which no bring-down is given), and all such representations and warranties are
incorporated herein by reference including, without limitation, that (a) the
execution and delivery of this Agreement by it and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
action on its behalf and (b) this Agreement has been duly executed and delivered
by such Purchaser and constitutes the valid and binding obligation of such
Purchaser, enforceable against it in accordance with its terms.
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11. Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be delivered as set forth in the Purchase
Agreement.
12. Survival; Successors and
Assigns. All warranties and representations (as of the date such
warranties and representations were made) made herein or in any certificate or
other instrument delivered by a party or on its behalf under this Agreement
shall be considered to have been relied upon by the other parties hereto and
shall survive the issuance of the New Series G Warrants. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted assigns
of each of the parties; provided, however, that no
party may assign this Agreement or the obligations and rights of such party
hereunder without the prior written consent of the other parties
hereto.
13. Execution and
Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together 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, it being understood that both
parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
14. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined pursuant to
the Governing Law provision of the Purchase Agreement.
15. Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
16. Construction. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise this Agreement and, therefore, the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments hereto. In addition, each and every reference to share prices in
this Agreement shall be subject to adjustment for reverse and forward stock
splits, stock dividends, stock combinations and other similar transactions of
the Common Stock that occur after the date of this Agreement.
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17. Entire
Agreement. This Agreement, together with the exhibits and
schedules hereto, contain the entire understanding of the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.
18. Independent Nature of
Purchasers’ Obligations and Rights. The obligations of each
Purchaser hereunder are several and not joint with the obligations of any other
Purchasers hereunder, and no Purchaser shall be responsible in any way for the
performance of the obligations of any other Purchaser hereunder. Nothing
contained herein or in any other agreement or document delivered at any closing,
and no action taken by any Purchaser pursuant hereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Purchaser shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to be joined as
an additional party in any proceeding for such purpose.
19. Fees and
Expenses. Except as expressly set forth herein, each party
will be responsible for its own fees and expenses incurred in connection with
the preparation, execution, delivery and performance of this Agreement,
including payment of the fees and expenses of its advisers, counsel, accountants
and other experts, if any.
20. Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s
obligations hereunder only and without any effect whatsoever on the obligations
between the Company and the other Purchasers, by written notice to the other
parties, if the Closing has not been consummated on or before April 30, 2009;
provided, however, that no such termination will affect the right of any party
to xxx for any breach by the other party (or parties) which occurred prior to
such date of termination.
***********************
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
| AKEENA SOLAR, INC. | |||
|
By:
|
|||
| Name | |||
| Title | |||
7
[PURCHASER
SIGNATURE PAGES TO AKNS AMENDMENT AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
by their respective authorized signatories as of the date first indicated
above.
| Name of Purchaser: | ALPHA CAPITAL ANSTALT |
| Signature of Authorized Signatory of Purchaser: | |
| Name of Authorized Signatory: | |
| Title of Authorized Signatory: | |
| Email Address of Purchaser |
Address
for Notice of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as above):
The
Warrant Shares shall be delivered to the following DWAC Account
Number:
Existing
Warrants to be exercised: __________
New
Warrants with an exercise price of $1.12, subject to adjustment therein:
________
8
[PURCHASER
SIGNATURE PAGES TO AKNS AMENDMENT AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
by their respective authorized signatories as of the date first indicated
above.
| Name of Purchaser: | WHALEHAVEN CAPITAL FUND LTD. |
| Signature of Authorized Signatory of Purchaser: | |
| Name of Authorized Signatory: | |
| Title of Authorized Signatory: | |
| Email Address of Purchaser |
Address
for Notice of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as above):
The
Warrant Shares shall be delivered to the following DWAC Account
Number:
Existing
Warrants to be exercised: __________
New
Warrants with an exercise price of $1.12, subject to adjustment therein:
________
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SCHEDULE
A
EXISTING
WARRANTS
|
NAME
OF PURCHASER
|
TOTAL
NUMBER OF EXISTING WARRANTS
|
|||
|
Alpha
Capital Anstalt
|
1,812,030 | |||
|
Whalehaven
Capital Fund Ltd.
|
384,370 | |||
|
TOTAL
|
2,196,400 | |||
SCHEDULE
B
EXISTING
WARRANTS TO BE EXERCISE AT CLOSING
|
NAME
OF PURCHASER
|
NUMBER
OF EXISTING WARRANTS TO BE EXERCISED
|
EXERCISE
AMOUNT ($1.12 per share)
|
||||||
|
Alpha
Capital Anstalt
|
$ | |||||||
|
Whalehaven
Capital Fund Ltd.
|
$ | |||||||
|
Total
|
425,000 | $ | 476,000 | |||||
SCHEDULE
C
WIRE
INSTRUCTIONS FOR COMPANY
Account
name: Akeena Solar
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SCHEDULE D
NEW
SERIES G WARRANTS
|
NAME
OF PURCHASER
|
NUMBER
OF NEW SERIES G WARRANTS
|
|||
|
Alpha
Capital Anstalt
|
||||
|
Whalehaven
Capital Fund Ltd.
|
||||
|
Total
|
1,275,000 | |||
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