FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO
This
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this “First
Amendment”)
is
entered into as of October 31, 2008 (the “Effective
Date”)
by and
between Premier Power Renewable Energy, Inc., a Delaware corporation (the
“Company”),
Genesis Capital Advisors, LLC, a Nevada limited liability company (“Genesis”)
and
Vision Opportunity Master Fund, Ltd., a Cayman Islands limited company
(“Vision”
and
together with Genesis, are collectively referred to hereinafter as “Securityholders”).
RECITALS
WHEREAS,
the Company and the Securityholders executed that certain Securities Purchase
Agreement dated September 9, 2008 (the “Purchase
Agreement”),
and a
certain Registration Rights Agreement dated September 9, 2008 (the “Original
RRA”);
and
WHEREAS,
each Securityholder is the holder and beneficial owner (within the meaning
of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of certain
Registrable Securities; and
WHEREAS,
pursuant to Section 6(f) of the Original RRA, the Original RRA may be
amended by the Company and the Holders holding at least a majority of the
then-outstanding Registrable Securities; and
WHEREAS,
Vision is the Holder of the majority of the currently outstanding Registrable
Securities and the parties desire to amend the Original RRA as more particularly
described herein.
NOW,
THEREFORE , in consideration of the above premises and the mutual covenants
contained below and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
1.
Definitions.
As used
in this First Amendment, each of the terms defined in the opening paragraph
and
the Recitals above shall have the meanings assigned to such terms therein.
Each
term defined in the Original RRA and used herein without definition shall have
the meaning assigned to such term in the Original RRA, unless expressly provided
to the contrary.
2.
Amendment
to Section 1 of the Original RRA.
The
definition of “Registrable Securities”, as set forth in Section 1 of the
Original RRA, shall be amended and replaced in its entirety with the following
definition of “Registrable Securities”:
“Registrable
Securities”
means
(a) all of the shares of Common Stock issuable upon conversion in full of the
Preferred Stock (assuming on the date of determination the shares of Preferred
Stock are converted in full without regard to any conversion limitations
therein) or shares of Common Stock owned by Genesis Capital Advisors, LLC,
pari
passu, (b) all Warrant Shares (assuming on the date of determination the
Warrants are exercised in full without regard to any exercise limitations
therein) and all shares of Common Stock issuable upon exercise of warrants
held
by Private Investor, and by Genesis Capital Advisors, LLC pari passu with the
Warrant Shares, (c) additional shares of Common Stock issuable in connection
with any anti-dilution provisions in the Preferred Stock or the Warrants (in
each case, without giving effect to any limitations on conversion set forth
in
the Certificate of Designation or limitations on exercise set forth in the
Warrants), (d) any securities issued or issuable upon any stock split, dividend
or other distribution, recapitalization or similar event with respect to the
foregoing, (e) all of the shares of Common Stock issuable upon conversion in
full of the Preferred Stock and all shares of Common Stock issuable upon
exercise of warrants issued along with the sale of such Preferred Stock up
to
$3,000,000 worth that may be sold (subject to Vision Capital Advisors, LLC’s
approval and consent) to additional accredited investors after this transaction
under at least the same terms as the Purchase Agreement, (f) 1,600,000 shares
of
Common Stock, sold by the Company’s management to Vision pursuant to the Stock
Purchase and Option Agreement, and (g) 1,600,000 shares of Common Stock issuable
upon exercise of an option to purchase such Common Stock issued to Vision under
the Stock Purchase and Option Agreement; provided, however,
that
the Company shall not be required to maintain the effectiveness, or file another
Registration Statement hereunder with respect to any Registrable Securities
that
are not subject to the current public information requirement under Rule 144
and
that are eligible for resale without volume or manner-of-sale restrictions
without current public information pursuant to Rule 144 promulgated by the
Commission pursuant to a written opinion letter to such effect, addressed,
delivered and acceptable to the Transfer Agent and the affected
Holders.
3.
Amendment
to Section 1 of the Original RRA.
The
following definition of “Stock Purchase and Option Agreement” shall be inserted
in Section 1 of the Original RRA:
“Stock
Purchase and Option Agreement”
means
the agreement entered into by and between Vision Opportunity Master Fund, Ltd.
and the Company’s management on October 31, 2008.
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4.
Amendment
to Section 2(a) of the Original RRA.
The
following language shall be added after the sentence “Failure
to so notify the Holder within two (2) Trading Days of such notification of
effectiveness or failure to file a final Prospectus as foresaid shall be deemed
an Event under Section 2(b)” within Section 2(a)
and
shall replace the remainder of such Section:
“Notwithstanding
any other provision of this Agreement and subject to the payment of liquidated
damages pursuant to Section 2(b), if any SEC Guidance sets forth a limitation
on
the number of Registrable Securities permitted to be registered on a particular
Registration Statement (and notwithstanding that the Company used diligent
efforts to advocate with the Commission for registration for all or a greater
portion of Registrable Securities), the number of Registrable Securities to
be
registered on such Registration Statement will be reduced pro
rata among
the
Holders with regard to the aggregate number of unregistered Registrable
Securities held by such Holder as of the time of filing of the Registration
Statement. The Company shall give the Holder the opportunity to specify which
of
its Registrable Securities shall be registered and in what order they shall
be
cut back.”
5.
Further
Assurances.
The
parties hereto hereby agree to execute and deliver such additional documents,
instruments or agreements as may be necessary and appropriate to effectuate
the
purposes of this First Amendment.
6.
Successors
and Assigns.
This
First Amendment is binding upon and shall inure to the benefit of the successors
and permitted assigns of the parties hereto.
7.
Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this First Amendment shall be determined in accordance with the provisions
of
the Purchase Agreement.
8.
Counterparts.
This
First Amendment 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..
9.
Effectiveness
of Original RRA.
Except
as otherwise amended or revised pursuant to this First Amendment, the terms,
conditions, and provisions of the Original RRA shall be in full force and
effect.
[Remainder
of Page Intentionally Left Blank.]
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IN
WITNESS WHEREOF, the undersigned have executed this First Amendment as of the
date first above written.
| PREMIER POWER RENEWABLE ENERGY, INC. | ||
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| By: | /s/ Xxxx Xxxxx | |
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| Xxxx
Xxxxx Chief Executive Officer |
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| VISION OPPORTUNITY MASTER FUND, LTD. | ||
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| By: | /s/ Xxxx Xxxxxxxx | |
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| Xxxx
Xxxxxxxx Portfolio Manager |
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| GENESIS CAPITAL ADVISORS, LLC | ||
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| By: | /s/ Xxxxxxx Xxxxxxxx | |
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| Xxxxxxx
Xxxxxxxx Managing Member |
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