AMENDMENT TO THE SERIES A, SERIES B AND SERIES C WARRANTS
AMENDMENT
TO THE SERIES A, SERIES B AND SERIES C WARRANTS
This AMENDMENT TO THE SERIES A, SERIES
B AND SERIES C WARRANTS (this “Amendment”) is made and
entered into as of January 7, 2010 (the “Effective Date”), by and among
Solar EnerTech Corp., a Delaware corporation (the “Company”), the holders of at
least a majority of the common stock underlying the Company’s outstanding Series
A Warrants (the “Series A
Required Holders”), the holders of at least a majority of the common
stock underlying the Company’s outstanding Series B Warrants (the “Series B Required Holders”),
and the holders of at least a majority of the common stock underlying the
Company’s outstanding Series C Warrants (the “Series C Required Holders”,
and together with the Series A Required Holders and the Series B Required
Holders, the “Consenting
Holders”).
RECITALS
WHEREAS, the Company entered
into a Securities Purchase Agreement, dated March 7, 2007, pursuant to which the
Company issued and sold to certain investors Series A Convertible Notes (each a
“Series A Note,” and
collectively, the “Series A
Notes”), Series B Convertible Notes (each a “Series B Note,” and collectively, the
“Series B Notes”, and
together with the Series A Notes, the “Notes”), Series A Warrants to
Purchase Common Stock (the “Series A Warrants”) and Series
B Warrants to Purchase Common Stock (the “Series B
Warrants”).
WHEREAS, the exercise price of
the Series A Warrant is $1.21 per share (the “Series A Warrant Exercise Price”) and
the exercise price of the Series B Warrants is $0.90 per share (the “Series B Warrant Exercise
Price”).
WHEREAS, the Company entered
into a Securities Purchase Agreement, dated January 11, 2008, pursuant to which
the Company issued and sold to certain investors shares of the Company’s Common
Stock and Series C Warrants to Purchase Common Stock (the “Series C Warrants,” and
together with the Series A Warrants and the Series B Warrants, collectively, the
“Warrants”).
WHEREAS, the exercise price of
the Series C Warrants is $1.00 per share (the “Series C Warrant Exercise
Price”).
WHEREAS, the Company and the
Series A Required Holders and Series B Required Holders are parties to a Series
A and Series B Notes Conversion Agreement dated January 7, 2010 (the
“Conversion Agreement”),
pursuant to which the Company will adjust the conversion price of the Series A
and Series B Notes in consideration for the conversion of all of the outstanding
amounts owed under the Notes.
WHEREAS, in connection with
the Conversion Agreement, the Company and the Consenting Holders each desire to
enter into this Amendment to reduce the Series A Warrant Exercise Price, the
Series B Warrant Exercise Price and the Series C Warrant Exercise Price to
$0.15.
WHEREAS, Section 9 of each of
the Warrants provides that each Warrant may be amended by written consent of the
requisite Consenting Holders.
AGREEMENT
NOW, THEREFORE, the Company
and the Consenting Holders hereby agree as follows:
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1.
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Amendment of Series A
Warrant and Series B Warrant. As of the Effective Date,
the Series A Required Holders having the power to amend the Series A
Warrants and the Series B Required Holders having the power to amend the
Series B Warrants hereby amend each Series A Warrant and Series B Warrant
as follows:
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(a)
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Section
(1)(b) of each Series A Warrant and Series B Warrant is hereby amended in
its entirety to read as follows:
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“Exercise
Price. For purposes of this Warrant, “Exercise Price” means
$0.15.”
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(b)
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Section
(1)(f)(1) of each Series A Warrant and Series B Warrant is hereby amended
in its entirety to read as follows:
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“[Intentionally
Omitted.]”
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(c)
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Section
(2)(a) of each Series A Warrant and Series B Warrant is hereby amended in
its entirety to read as follows:
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“[Intentionally
Omitted.]”
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2.
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The
remainder of each Series A Warrant and Series B Warrant remains
unchanged.
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3.
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Amendment of Series C
Warrant. As of the Effective Date, the Series C Required
Holders having the power to amend the Series C Warrants, hereby amend each
Series C Warrant as follows:
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(a)
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Section
(1)(b) of each Series C Warrants is hereby amended in its entirety to read
as follows:
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“Exercise
Price. For purposes of this Warrant, “Exercise Price” means
$0.15.”
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(b)
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Section
(1)(e) of each Series C Warrants is hereby amended in its entirety to read
as follows:
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“[Intentionally
Omitted.]”
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4.
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The
remainder of each Series C Warrant remains
unchanged.
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5.
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Counterparts. This
Amendment may be executed in any number of counterparts, each of which
shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one
instrument. The exchange of a fully executed signature page to
this Amendment (in counterparts or otherwise) by facsimile or by
electronic delivery in PDF format shall be sufficient to bind the parties
to the terms and conditions of this
Amendment.
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6.
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Attorney’s
Fees. In the event that any suit or action is instituted
under or in relation to this Amendment, including without limitation to
enforce any provision in this Amendment, the prevailing party in such
dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Amendment, including without limitation, such reasonable
fees and expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expenses of
appeals.
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[Signature Pages
Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this AMENDMENT TO THE SERIES A,
SERIES B AND SERIES C WARRANTS to be duly executed by their respective
authorized signatories as of the date first indicated above.
COMPANY
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By:
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/s/ Xxx Xxx
Xxxxx
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Name: Xxx
Xxx Young
Title:
Chief Executive Officer
Address
for Notice:
000
Xxxxxx Xxxxxx, Xxxxx# 000
Xxxxxxxx
Xxxx, XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxx Xxx Young,
Chief
Executive Officer
With a
copy to (which shall not constitute notice):
Xxxx
Xxxx
DLA Xxxxx
LLP (US)
0000
Xxxxxxxxxx Xxx
Xxxx Xxxx
Xxxx, XX 00000
Facsimile:
(000) 000-0000
IN
WITNESS WHEREOF, the undersigned has caused this AMENDMENT TO THE SERIES A,
SERIES B AND SERIES C WARRANTS to be duly executed by its authorized signatory
as of the date first indicated above.
SERIES
A REQUIRED HOLDER, SERIES B REQUIRED HOLDER AND
SERIES
C REQUIRED HOLDER
The
Quercus Trust
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By:
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/s/ Xxxxx
Xxxxxxx
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Name:
Xxxxx Xxxxxxx
Title:
Trustee
Address
for Notice:
0000
Xxxxxxx Xxxx.
A109 -
PMB 467
Xxxxx
Xxxx, XX 00000
With a
copy to (which shall not constitute notice):
Xxxxxx X.
Xxxxxxxx, Esq.
The Law
Offices of Xxxxxx X. Xxxxxxxx
00000
Xxxxxx Xxxx. #X
Xxxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
