MEMORANDUM OF UNDERSTANDING
Exhibit
10.12
XXXX WIND |
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MEMORANDUM OF UNDERSTANDING |
April 13,
2009
Re: Xxxx
Wind, Inc. Stock – Registration Statement
To: Purchaser
(each a signatory hereto):
In
connection with the Registration Rights Agreement, dated as of June 24, 2008,
entered into by and between Xxxx Wind, Inc. (the “Company”) and the Purchasers
(as defined therein), this letter agreement confirms the
understanding of the parties with respect to the registration of Holder
Registrable Securities.
Capitalized
terms used and not defined herein shall have the meanings ascribed to them in
the Registration Rights Agreement, as applicable.
The
Company and each Purchaser confirms, acknowledges and agrees to the
following:
1. SEC
GUIDANCE. The Securities and Exchange Commission (“SEC”) has
provided guidance to the Company with respect to the number of Registrable
Securities permitted to be registered on the Company’s Form S-1 Registration
Statement filed on October 22, 2008, and subsequently amended (the “Juhl
Registration Statement”). Thus, the Company has determined pursuant
to the SEC guidance that it is eligible to register up to 1,700,000 Registrable
Securities, which it will seek to register on its amended Juhl Registration
Statement.
2. SECTION 2(a) REGISTRATION
RIGHTS AGREEMENT. Section 2(a) of the Registration Rights Agreement
addresses how to reduce Registrable Securities pro rata between the Holder
Registrable Securities and the Greenview Capital Registrable
Securities. Further, the Holder Registrable Securities are to be
reduced (for registration purposes) in a specified order set forth therein,
whereby 75% of the Conversion Shares (which are shares of common stock issuable
upon conversion of shares of Series A preferred stock (the “Dividend Shares”))
are to be reduced first, while, the remaining 25% of the Dividend Shares contain
no reference for the potential for reduction, thus are to be registered first
(and thus included in the Registrable Securities to be registered on the Juhl
Registration Statement).
3. REGISTRABLE
SECURITIES. Notwithstanding Section 2(a) of the Registration Rights
Agreement, the Company will not register any Dividend
Shares. Further, the Company will only register the shares underlying
the Series A Warrant on the Juhl Registration Statement. After the
pro-rata reduction to 1,700,000 Registrable Shares, such shares have been
reduced as follows: (i) Holder Registrable Shares equal 1,452,100 shares (or
85.42%) and (ii) the Greenview Capital Registrable Securities equal 247,900
shares (or 14.58%). The Holder Registrable Securities are allocated
per Purchaser, in accordance with the following table:
Purchaser
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Holder
Registrable Shares (prior to pro-rata reduction =
8,023,120)
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Holder
Registrable Shares
(after
pro-rata reduction = 1,452,100)*
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Percentage
Allocation between Purchaser
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Vision
Opportunity Master Fund, Ltd.
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7,090,201 | 1,283,300 | 88.37 | % | ||||||||
Daybreak
Special Situations Master Fund, Ltd.
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777,434 | 140,700 | 9.69 | % | ||||||||
Xxxxx
Xxxxxx
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93,921 | 16,800 | 1.16 | % | ||||||||
Xxxxxx
Xxxx
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62,194 | 11,300 | .775 | % |
*There
are a total of 2,580,000 shares of common stock underlying the Series A
Warrant. After the pro-rata reduction in shares between the Greenview
Capital Registrable Shares and the Holder Registrable Shares, a total of
1,452,100 shares of common stock underlying the Series A Warrant shall be
included in the Juhl Registration Statement. Further, the calculation
of Holder Registrable Shares includes rounding up to the nearest 100
shares.
Please
indicate your agreement by signing below and returning this letter agreement to
the Company at your earliest convenience.
Very truly yours,
Xxxx
Wind, Inc.
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By:
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/s/ Xxxx
Xxxxxx
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Its:
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President
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Agreed to
and accepted this 13th day of
April, 2009.
Vision
Opportunity Master Fund, Ltd.
By:
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/s/
Xxxx Xxxxxxxx
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Its:
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Director
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Daybreak
Special Situations Master Fund, Ltd.
By:
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/s/
Xxxxx Xxxx
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Its:
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Managing
Partner
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Xxxxxx Xxxx | ||||
/s/ Xxxxxx
Xxxx
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Xxxxx Xxxxxx | ||||
/s/ Xxxxx
Xxxxxx
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