AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT
NO. 1 TO REGISTRATION RIGHTS AGREEMENT
THIS
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (“Amendment
No. 1”)
is
entered into by and among CrossPoint Energy Company, a Nevada corporation (f/k/a
Electrum Mining Limited, the “Company”),
and
the several purchasers signatory hereto (each such purchaser is a “Purchaser”
and
collectively, the “Purchasers”)
as of
the date the last Purchaser signs this Amendment No. 1.
WITNESSETH:
WHEREAS,
the
Company and the Purchasers are parties to that certain Registration Rights
Agreement (the "Agreement")
entered
into as of June 30, 2006;
WHEREAS,
the
Company and the Purchasers each desire to amend certain provisions of the
Agreement to incorporate mutually agreed upon changes to the Agreement and
the
transactions contemplated thereby; and
WHEREAS,
Section
6(f) of the Agreement provides that any provision of the Agreement may be
amended by writing, signed by each party to be bound by the
amendment.
NOW,
THEREFORE,
the
Company and each of the Purchasers hereby agree as follows:
1. Definitions.
Terms
used herein and not otherwise defined shall have the meanings set forth in
the
Agreement.
2. Amendment.
Effective as of the date of the Agreement:
a. Section
1:
The
definition of “Effectiveness
Date”
under
Section 1 of the Agreement is hereby amended and restated in its entirety to
read as follows:
“Effectiveness
Date”
means,
with respect to the initial Registration Statement required to be filed
hereunder, the 120th
calendar
day following the date the Merger is consummated and, with respect to any
additional Registration Statements which may be required pursuant to Section
3(c), the 90th
calendar
day following the date on which the Company first knows, or reasonably should
have known, that such additional Registration Statement is required hereunder;
provided,
however,
in the
event the Company is notified by the Commission that one of the above
Registration Statements will not be reviewed or is no longer subject to further
review and comments, the Effectiveness Date as to such Registration Statement
shall be the fifth Trading Day following the date on which the Company is so
notified if such date precedes the dates required above.
b. Section
1:
The
definition of “Registrable
Securities”
under
Section 1 of the Agreement is hereby amended and restated in its entirety to
read as follows:
“Registrable
Securities”
means
all of (i) the Merger Stock, (ii) the shares of Common Stock underlying the
Merger Warrants, (iii) any additional shares issuable in connection with any
anti-dilution provisions in the Warrants (without giving effect to any
limitations on exercise set forth in the Warrant), (iv) any shares of Common
Stock issued or issuable upon the conversion of the Notes, (v) any shares of
Common Stock issued or issuable upon payment of any fees due and payable to
the
Purchasers under Section 2(b) of this Agreement; (vi) any shares of Common
Stock
issued or issuable as payment of interest on the Notes in accordance with the
terms and provisions of the Notes; and (vii) any shares of Common Stock issued
or issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing.
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1
c. Section
1:
The
following definitions are added to Section 1 of the Agreement as
follows:
“PIK
Payment”
means
the delivery of a number of shares of Common Stock equal to the quotient of
(i)
the amount under Section 2(b) then due and payable to the Purchaser, divided
by
(ii) PIK Price, rounded up to the next full share.
“PIK
Period”
means
the period during which the Common Stock is traded on a Stock Exchange beginning
on the November 28, 2006 and ending on April 28, 2007.
“PIK
Price”
means
the amount that is equal to 90% of the average of the VWAPs of the Common Stock
for the ten Trading Days immediately prior to Event Date.
“Stock
Exchange”
means,
in declining order of seniority, the New York Stock Exchange, the American
Stock
Exchange, the Nasdaq Stock Market, the OTC Bulletin Board System or the Pink
Sheets Quotation Service.
“Trading
Day”
means
any day upon which trades are processed on the New York Stock
Exchange.
“VWAP”
means,
for any date, the price determined by the first of the following clauses that
applies: (a) if the Common Stock is then listed or quoted on a Stock Exchange,
the daily volume weighted average price of the Common Stock for such date (or
the nearest preceding date) on the Stock Exchange on which the Common Stock
is
then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day
from
9:30 a.m. New York City time to 4:02 p.m. New York City time); or (b) in all
other cases, the fair market value of one share of Common Stock as determined
by
an independent appraiser selected in good faith by the Purchaser and reasonably
acceptable to the Company.
d. Section
2(b):
The
following sentence is added to the end of this Section 2(b) of the Agreement
as
follows:
During
the PIK Period, the Company may, upon receipt of confirmation by a Purchaser
substantially similar to the one attached hereto as Exhibit
A
and
incorporated herein by reference, make payments under this Section 2(b) by
delivery of a number of shares of Common Stock equal to the PIK
Payment.
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2
3. Continued
Validity.
This
Amendment No. 1 is intended to concern solely those matters set forth herein,
and the Agreement (including the provisions of the Agreement not modified
hereby), as modified by this Amendment No. 1, shall remain in full force and
effect following the execution of this Amendment No. 1.
4. Governing
Law.
This
Amendment No. 1 shall be construed and enforced in accordance with the laws
of
the State of New York.
[SIGNATURES
FOLLOW]
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3
IN
WITNESS WHEREOF,
the
parties hereto have executed this Amendment No. 1 as of the date and year set
forth below such party’s signature hereto.
CROSSPOINT
ENERGY COMPANY,
f/k/a,
Electrum
Mining Limited
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By: | ||
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Name: Xxxxxx X. Xxxxxxx Title:
President
Date:
January 9, 2007
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[SIGNATURE
PAGE OF PURCHASERS FOLLOWS]
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4
[SIGNATURE
PAGE OF PURCHASERS TO CROSSPOINT RRA]
AMENDMENT
NO. 1 TO REGISTRATION RIGHTS AGREEMENT
Name
of
Holder:
Signature
of Authorized Signatory of Holder:
Name
of
Authorized
Signatory:
Title
of
Authorized
Signatory:
Date:
[SIGNATURE
PAGES CONTINUE]
Page
5
EXHIBIT
A
ATTACHED
TO
AMENDMENT
NO. 1 TO REGISTRATION RIGHTS AGREEMENT
The
undersigned hereby agrees to have any payments owed to it by CrossPoint Energy
Company, a Nevada corporation (the “Company”) under Section 2(b) of the
Registration Rights Agreement dated June 30, 2006, by and among the Company
and
the Purchasers that are signatories thereto, as amended by Amendment No. 1
to
Registration Rights Agreement (the “Registration Rights Agreement”) paid by the
Company in the form of a PIK Payment during the PIK Period, as each such term
is
defined in the Registration Rights Agreement.
Name
of
Holder:
Signature
of Authorized Signatory of Holder:
Name
of
Authorized
Signatory:
Title
of
Authorized
Signatory:
Date:
Amendment
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6
Ex. A. Page 1