AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
Exhibit
10.1
AMENDMENT
TO
AND
REGISTRATION
RIGHTS AGREEMENT
This
Amendment (the “Amendment”), dated as
of February 9, 2010, is made to the Securities Purchase Agreement, dated as of
January 26, 2010 (the “Purchase Agreement”),
between Worldwide Energy and Manufacturing USA, Inc., a Colorado corporation
(the “Company”)
and the purchasers identified on the signatures pages thereto (the “Holders”), and to the
Registration Rights Agreement, dated as of January 26, 2010 (the “Registration Rights
Agreement”), between the Company and the Holders. Terms used
as defined terms herein and not otherwise defined shall have the meanings
provided therefor in the Purchase Agreement.
WHEREAS, Section 2.1 of the Purchase
Agreement provides that the Company shall sell, and the Holders, severally and
not jointly, shall purchase, up to an aggregate of $8,000,000 of Shares and
Warrant;
WHEREAS, in connection with the
transactions contemplated in the Purchase Agreement, Section 2(a) of the
Registration Rights Agreement provides that, pursuant to the terms and
conditions therein, the Company shall prepare and file with the United States
Securities and Exchange Commission (“SEC”) a registration
statement covering the resale of all or such maximum portion of the Registrable
Securities (as such term is defined in the Registration Rights Agreement) as
permitted pursuant to the guidance of the SEC;
WHEREAS, on January 26, 2010, the
Company sold, and the Holders, severally and not jointly, purchased, an
aggregate of $7,987,227 of Shares and Warrants pursuant to the terms and
conditions of the Purchase Agreement;
WHEREAS, clause (d) in the definition
of “Exempt Issuance” in Section 1.1 of the Purchase Agreement provides that
Exempt Issuance shall include the issuance, with the consent of Ladenburg
Xxxxxxxx & Co., Inc., of up to an amount of Common Stock and warrants equal
to the difference between $8,000,000 and the aggregate Subscription Amounts
under the Purchase Agreement on the same terms and conditions and price as under
the Purchase Agreement, with investors executing definitive agreements for the
purchase of such securities and such transactions having closed on or before
January 29, 2010;
WHEREAS, the definition of “Transaction
Documents” in Section 1.1 of the Purchase Agreement includes the Purchase
Agreement, the Registration Rights Agreement and the other documents entered
into or provided in connection with the transactions contemplated in the
Purchase Agreement;
WHEREAS,
Section 5.5 of the Purchase Agreement provides that no provision of the Purchase
Agreement may be modified, supplemented or amended except in a written
instrument signed by the Company and the Holders holding at least 67% in
interest of the Shares then outstanding;
WHEREAS,
Section 6(f) of the Registration Rights Agreement provides that no provision of
the Registration Rights Agreement may be modified, supplemented or amended
unless such shall be in writing and signed by the Company and the Holders of 67%
or more of the then outstanding Registrable Securities (including any
Registrable Securities issuable upon exercise of any security); and
WHEREAS,
the Company and the Holders signatory hereto (the “Signatory Holders”),
which Signatory Holders (a) hold at least 67% in interest of the Shares
currently outstanding and (b) hold 67% or more of the then outstanding
Registrable Securities, wish (i) to amend Section 2.1 of the Purchase Agreement
to increase the aggregate dollar amount of Shares and Warrants that the Company
may sell, and the Holders, severally and not jointly, may purchase, pursuant to
the Purchase Agreement from $8,000,000 to $9,000,000, (ii) to amend and restate
clause (d) in the definition of Exempt Issuance in Section 1.1 of the Purchase
Agreement to permit the issuance of up to an amount of Common Stock and warrants
equal to the difference between $9,000,000 and the aggregate Subscription
Amounts under the Purchase Agreement on the substantially same terms and
conditions and at the same prices in transactions having closed on or before
February 9, 2010, (iii) to amend the definition of Transaction Documents in
Section 1.1 of the Purchase Agreement to include this Amendment and (iv) to
amend the definition of Registrable Securities in the Registration Rights
Agreement to include the securities issued (and issuable upon exercise of such
securities or otherwise) in transactions contemplated by clause (d) in the
definition of Exempt Issuance in Section 1.1 of the Purchase
Agreement.
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NOW,
THEREFORE, in consideration of the terms and conditions contained in this
Amendment, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
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1.
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Amendment to Section
2.1 of Purchase Agreement. Section 2.1 of the Purchase
Agreement is hereby amended by deleting the term “$8,000,000” and
inserting in its place the term
“$9,000,000”.
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2.
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Amendment and
Restatement to Clause (d) in the Definition of Exempt Issuance in Section
1.1 of Purchase Agreement. Clause (d) in the definition
of Exempt Issuance in Section 1.1 of the Purchase Agreement is hereby
amended and restated to read in entirety: “(d) with the prior written
consent of Ladenburg Xxxxxxxx & Co., Inc., up to an amount of Common
Stock and warrants equal to the difference between $9,000,000 and the
aggregate Subscription Amounts hereunder, on the substantially same terms
and conditions and at the same prices as hereunder, with investors
executing definitive agreements for the purchase of such securities and
such transactions having closed on or before February 9,
2010”.
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3.
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Amendment to
Definition of Transaction Documents in Section 1.1 of the Purchase
Agreement. The definition of Transaction Documents in
Section 1.1 of the Purchase Agreement is hereby amended by inserting,
immediately following the term “the Funds Escrow Agreement”, as follows:
“, the Amendment”.
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4.
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Amendment to
Definition of Registrable Securities in Section 1 of Registration Rights
Agreement. The definition of Registrable Securities in
Section 1 of the Registration Rights Agreement is hereby amended by
inserting, immediately following the word “foregoing” in clause (d) of
such definition, as follows: “and (e) securities issued (and issuable upon
exercise of such securities or otherwise) in transactions contemplated by
clause (d) in the definition of Exempt
Issuance”.
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5.
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Representations and
Warranties of the Company. The Company hereby makes the
representations and warranties set forth below to the Signatory Holders as
of the date of this Amendment:
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(a) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into this Amendment and otherwise to carry out its
obligations hereunder. The execution and delivery of this Amendment
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. This Amendment
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.
(b) Bring
Down. The Company expressly reaffirms that each of the
representations and warranties set forth in the Purchase Agreement (as
supplemented or qualified by the disclosures in any disclosure schedule to
Purchase Agreement), continues to be true, accurate and complete in all material
respects as of the date hereof, and except for any representation and warranty
made as of a certain date, in which case such representation and warranty shall
be true, accurate and complete as of such date, and the Company hereby remakes
and incorporates herein by reference each such representation and warranty as
though made on the date of this Amendment.
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6.
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Fees and
Expenses. At the closing of the Additional Financing,
the Company agrees to reimburse Ladenburg Xxxxxxxx & Co., Inc. $7,500
for its legal fees and expenses in connection herewith. “Additional
Financing” means the issuance by the Company of Common Stock and
warrants pursuant to clause (d) in the definition of Exempt Issuance in
Section 1.1 of the Purchase Agreement. Except as expressly set
forth in the Transaction Documents to the contrary, each party shall pay
the fees and expenses of its advisors, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this
Amendment.
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2
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7.
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Public
Disclosure. On or before 9:30 am (New York City time) on
the first Trading Day immediately following the date hereof, the Company
shall file a Current Report on Form 8-K, reasonably acceptable to the
Signatory Holders disclosing the material terms of the transactions
contemplated hereby and attaching this Amendment as an exhibit
thereto.
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8.
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Effect on Transaction
Documents. Except as
expressly set forth above, all of the terms and conditions of the Purchase
Agreement and the Transaction Documents shall continue in full force and
effect after the execution of this Amendment and shall not be in any way
changed, modified or superseded by the terms set forth herein.
Notwithstanding the foregoing, this Amendment shall be deemed for all
purposes as an amendment to the Purchase Agreement as required to serve
the purposes hereof, and in the event of any conflict between the terms
and provisions of the Purchase Agreement, on the one hand, and the terms
and provisions of this Amendment, on the other hand, the terms and
provisions of this Amendment shall
prevail.
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9.
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Amendments and
Waivers. The provisions of this Amendment can be amended or waived
in the manner permitted under the Purchase
Agreement.
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10.
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Execution. This
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.
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11.
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Governing
Law. All questions concerning the construction,
validity, enforcement and interpretation of this Amendment shall be
determined pursuant to the Governing Law provision of the Purchase
Agreement.
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12.
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Entire
Agreement. This Amendment contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged
into this Amendment.
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[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above.
| WORLDWIDE ENERGY AND MANUFACTURING USA, INC. | |||
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By:
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/s/ | |
| Name | |||
| Title | |||
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
[SIGNATURE
PAGE OF HOLDERS TO WEMU AMENDMENT]
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Name of
Holder: _____________________________________________________
Signature of Authorized Signatory of
Holder: ______________________________
Name of
Authorized Signatory: ___________________________________________
Title of
Authorized Signatory: ____________________________________________
[SIGNATURE
PAGES CONTINUE]
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