PURCHASE AND AMENDMENT AGREEMENT
EXHIBIT
10.2
This
Purchase and Amendment Agreement (this “Agreement”),
dated
as of February 20, 2007 (the “Amendment
Agreement Date”),
is
entered into by and among ZAP, a California corporation (the “Company”),
and
each of the entities whose names appear on the signature pages hereof (each,
an
“Investor”
and,
collectively, the “Investors”).
R
E C I T A L S:
WHEREAS,
the Company and certain Investors (the “Original
Investors”)
are
parties to that certain Securities Purchase Agreement, dated as of December
5,
2006 (the “Purchase
Agreement”),
and
that certain Registration Rights Agreement, dated as of December 5, 2006 (the
“Registration
Rights Agreement”);
capitalized terms used in this Agreement and not otherwise defined have the
respective meanings ascribed thereto in the Purchase Agreement.
WHEREAS,
pursuant to the Purchase Agreement, the Company issued 8% Senior Convertible
Notes (the “Original
Notes”)
and
Warrants (the “Original
Warrants”)
to the
Original Investors;
WHEREAS,
Grey K Offshore Leveraged Fund, Ltd. (“Grey
K Fund”
and,
collectively with the Original Investors, the “Investors”)
was
not an Original Investor but wishes to participate in the transactions
contemplated by this Agreement on the terms and conditions set forth
below;
WHEREAS,
the Company wishes to issue and sell to the Investors, and the Investors wish
to
purchase from the Company, upon the terms and subject to the conditions set
forth in the Purchase Agreement and in this Agreement, additional 8% Senior
Convertible Notes with terms substantially similar to the Original Notes and
in
the form attached hereto as Exhibit
A
(the
“Additional
Notes”)
and
warrants with terms (other than the exercise price, which shall be $1.32)
substantially similar to the Original Warrants and in the form attached hereto
as Exhibit
B
(the
“Additional
Warrants”
and,
together with the Additional Notes, the “Additional
Securities”);
and
WHEREAS,
the parties wish to include the shares of the Company’s common stock issuable
under the Additional Notes and Additional Warrants as “Registrable Securities”
under the Registration Rights Agreement;
A
G R E E M E N T:
NOW,
THEREFORE, in consideration of the foregoing and subject to the terms and
conditions herein contained, the parties hereto agree as follows:
Section
1 Purchase
and Sale.
1.1 Closing.
Upon
the terms and subject to the satisfaction or waiver of the conditions set forth
herein and in the Purchase Agreement, the Company agrees to sell and each
Investor agrees to purchase (i) an Additional Note with a principal amount
equal
to the amount set forth
below
such Investor’s name on the signature pages hereof and (ii) an Additional
Warrant exercisable into the number of shares of Common Stock set forth below
such Investor’s name on the signature pages hereof. The closing of the purchase
and sale of the Additional Securities (the “Additional
Closing”)
will
occur on the date (the “Additional
Closing Date”)
on
which (A) this Agreement is executed and delivered by all of the parties hereto,
(B) each of the conditions to Closing described in Section 5 of the Purchase
Agreement has been satisfied or waived as specified therein, and (C) payment
of
each Investor’s Purchase Price payable with respect to the Additional Note and
Additional Warrant being purchased by such Investor at the Additional Closing
has been made by wire transfer of immediately available funds. At the Additional
Closing, the Company shall deliver to each Investor duly executed instruments
representing the Additional Note and Additional Warrant purchased by such
Investor at the Additional Closing.
1.2 Terms
and Conditions; Amendments to Purchase Agreement.
The
terms and conditions of the Purchase Agreement, as amended hereby, shall govern
the purchase and sale of the Additional Securities, as follows:
(a) The
provisions of Section 1 of the Purchase Agreement shall apply to the purchase
and sale of the Additional Securities, except that Section 1.1 of the Purchase
Agreement is hereby replaced by the new Section 1.1 to this Agreement.
(b) Each
party to this Agreement shall be deemed to have made, as of the Additional
Closing Date, each representation and warranty made by it in the Purchase
Agreement under Section 2 or 3 thereof, as applicable.
(c) The
Company and each Investor shall comply with the provisions of Section 4 of
the
Purchase Agreement applicable to it.
(d) The
Additional Closing shall be subject to the satisfaction (or waiver by the
appropriate party) of the conditions set forth in Section 5 of the Purchase
Agreement.
(e) The
provisions of Section 6 of the Purchase Agreement shall apply to the purchase
and sale of the Additional Securities, except that the amount specified in
Section 6.10 shall be changed from $25,000 to $15,000.
(f) For
purposes of the purchase and sale of the Additional Securities, all references
in the Purchase Agreement to the term (i) “Execution Date” shall be deemed to
mean the Amendment Agreement Date; (ii) “Closing” shall mean the Additional
Closing; (iii) “Closing Date” shall mean the Additional Closing Date; and (iv)
“Agreement” shall include this Agreement.
(g) The
Purchase Agreement, the Original Notes and the Original Warrants are each hereby
amended so that (i) the term a “Note” or the “Notes” shall include the
Additional Notes; and (ii) a “Warrant” or the “Warrants” shall include the
Additional Warrants.
Section
2 Registration
Rights Agreement. The
Registration Rights Agreement is hereby amended so that (i) the term a “Note” or
the “Notes” shall include the Additional Notes; and (ii) a “Warrant” or the
“Warrants” shall include the Additional Warrants. The Company acknowledges that
the shares of Common Stock issuable under the Additional Notes and Additional
Warrants will be included as Registrable Securities (as defined in the
Registration Rights Agreement) in the initial Registration Statement filed
pursuant to the Registration Rights Agreement.
Section
3 Miscellaneous.
3.1 Except
as
amended hereby and for the purposes described herein, the Purchase Agreement
and
the Registration Rights Agreement shall remain in full force and effect in
accordance with their respective terms.
3.2 Notwithstanding
anything contained in the Purchase Agreement, the Original Notes or the Original
Warrants to the contrary, the Original Investors consent to the issuance of
an
Additional Note and Additional Warrant to Grey K Fund pursuant to the terms
hereof.
3.3 This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California applicable to contracts made and to be performed within
such
state.
[Signature
Pages Following]
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
By:
/s/ Xxxxxx Xxxxxxxxx
Name:
Xxxxxx Xxxxxxxxx
Title:
Chief Executive Officer
GEMINI
MASTER FUND, LTD.
By:
Gemini
Strategies, LLC
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
President
Principal
Amount of Additional Note Purchased at Additional Closing:
$500,000
|
|
Number of Shares into which Additional Warrant
Exercisable: 150,000
|
ADDRESS:
c/o
Gemini Strategies, LLC
00000
Xx
Xxxxxx Xxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000-0000
Attn: Xxxxxx
Xxxxxxx
Tel:
(000)
000-0000
Fax:
(000)
000-0000
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
By:
Name:
Title:
GREY
K
OFFSHORE FUND, LTD.
By:
RNK
Capital LLC
By:
/s/ Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Managing Partner
Principal
Amount of Additional Note Purchased at Additional Closing:
$380,800
|
|
Number of Shares into which Additional Warrant
Exercisable: 114,240
|
ADDRESS:
c/o
RNK
Capital LLC
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn: Xxxxxx
Xxxxxx
Tel:
(000)
000-0000
Fax:
(000)
000-0000
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
By:
Name:
Title:
GREY
K
FUND, LP
By:
RNK
Capital LLC
By:
/s/ Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Managing Member
Principal
Amount of Additional Note Purchased at Additional Closing:
$165,200
|
|
Number of Shares into which Additional Warrant
Exercisable: 49,560
|
ADDRESS:
c/o
RNK
Capital LLC
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn: Xxxxxx
Xxxxxx
Tel:
(000)
000-0000
Fax:
(000)
000-0000
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
By:
Name:
Title:
GREY
K
OFFSHORE LEVERAGED FUND, LTD.
By:
RNK
Capital LLC
By:
/s/ Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Managing Member
Principal
Amount of Additional Note Purchased at Additional Closing:
$154, 000
|
|
Number of Shares into which Additional Warrant
Exercisable: 46,200
|
ADDRESS:
c/o
RNK
Capital LLC
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn: Xxxxxx
Xxxxxx
Tel:
(000)
000-0000
Fax:
(000)
000-0000