FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT, SECURED TERM NOTE AND REGISTRATION RIGHTS AGREEMENT
Exhibit 10.33
FIRST
AMENDMENT TO
SECURITIES
PURCHASE AGREEMENT, SECURED TERM NOTE
AND
REGISTRATION RIGHTS AGREEMENT
THIS
FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT, SECURED TERM NOTE AND
REGISTRATION RIGHTS AGREEMENT (this “Amendment” or “First Amendment”) is entered
into as of November2, 2007, to be effective as of May 1, 2007 (the “Effective
Date”), by and between Texhoma Energy, Inc., a Nevada corporation (“Texhoma”)
and its wholly owned subsidiary, Texaurus Energy, Inc. a Delaware corporation
(“Texaurus” and collectively with Texhoma, each a “Corporation” and collectively
the “Corporations”), and Laurus Master Fund, Ltd. (“Laurus”).
BACKGROUND
Texaurus
and Laurus are parties to: (a) a Securities Purchase Agreement dated as of
March
28, 2006 (as amended, restated, supplemented or otherwise modified from time
to
time, the “SPA”); and (b) a Secured Term Note in the original amount of
$8,500,000 issued on March 28, 2006 (as amended, restated, supplemented or
otherwise modified from time to time, the “Note”).
Texhoma
and Laurus entered into a Registration Rights Agreement dated as of March 28,
2006 (as amended, restated, supplemented or otherwise modified from time to
time, the “Registration Rights Agreement”); pursuant to which Texhoma, among
other things, has agreed to file a registration statement covering the
Registrable Securities (as therein defined).
The
Corporation has requested that Laurus amend the SPA, the Registration Rights
Agreement and the Note, and Laurus is willing to do so on the terms and
conditions hereafter set forth.
NOW,
THEREFORE, in consideration of the agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Current
Reporting Requirements. So long as the Corporation shall
have delivered to Laurus, on or prior to December 15, 2007, evidence reasonably
satisfactory to Laurus that Texhoma is then current on all of Texhoma’s
Securities and Exchange Commission filings (the “SEC Filing Deliverable”),
Laurus hereby waives any Event of Default (as defined under the Note)
occurring through and including December 15, 2007 or such earlier date as Laurus
shall have received evidence of the SEC Filing Deliverable, but such waiver
shall only extend to an Event of Default arising solely from Texhoma’s failure
to be current on its filings with the Securities and Exchange
Commission.
2. Amendments
to Note. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the following Section 2.1(i),
Change in Control, of the Note is hereby amended in its entirety to provide
as
follows:
“(i) Change
of Control. A Change of Control (as defined below) shall occur
with respect to the Company, unless Holder shall have expressly consented to
such Change of Control in writing. A “Change of
Control” shall mean any event or circumstance as a result of which (i)
any “Person” or “group” (as such terms are
defined in Sections 13(d) and 14(d) of the Exchange Act, as in effect on the
date hereof), other than the Holder, is or becomes the “beneficial
owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of 35% or more on a fully diluted basis of the
then outstanding voting equity interest of the Company (other than a
“Person” or “group” that beneficially owns 35%
or more of such outstanding voting equity interests of the Company on the date
hereof), (ii) unless the Holder provides its written consent thereto (which
shall not be unreasonably withheld), the Board of Directors of the Company
shall
cease to include each of ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or (iii) the
Company or any of its Subsidiaries merges or consolidates with, or sells all
or
substantially all of its assets to, any other person or entity;”
3. .Amendments
to the Registration Rights
Agreement. Subject to satisfaction of
the conditions precedent set forth in Section 4 below, the following defined
term set forth in Section 1 of the Registration Rights Agreement is hereby
amended in its entirety to provide as follows:
“Effectiveness
Date” means (i) with respect to the initial Registration Statement required
to be filed hereunder, a date no later than April 30, 2008; and (ii) with
respect to each additional Registration Statement required to be filed
hereunder, if any, a date no later than thirty (30) days following the
applicable Filing Date.”
4. Conditions
of Effectiveness. This Amendment shall
become effective upon satisfaction of the following conditions
precedent: Laurus shall have received (i) a copy of this Amendment
executed by Texhoma and Texaurus, (ii) all such certificates of insurance and
evidence of property insurance (naming Laurus as additional insured, mortgagee
and lenders’ loss payee, and (iii) all such other certificates, instruments,
documents, agreements and opinions of counsel as may be required by Laurus
or
its counsel, if any, each of which shall be in form and substance satisfactory
to Laurus and its counsel.
5. Representations
and Warranties of the Corporation. Each Corporation
hereby represents and warrants as follows:
(a) This
Amendment, the SPA, Registration Rights Agreement, and the Note, as amended
hereby, constitute legal, valid and binding obligations of the companies party
thereto and are enforceable against such companies in accordance with their
respective terms.
(b) Upon
the effectiveness of this Amendment, each Corporation, hereby reaffirms all
covenants, representations and warranties made in the SPA and the Related
Agreements (as defined in the SPA), as applicable, to the extent the same are
not amended hereby
and agree that all such covenants, representations and warranties shall be
deemed to have been remade as of the effective date of this
Amendment.
(c) No
event of default has occurred and is continuing or would exist under any
document, instrument or agreement by and between any Corporation and Laurus
after giving effect to this Amendment.
(d) No
Corporation has any defense, counterclaim or offset with respect to the SPA
or
any other Related Agreement (as defined in the SPA).
6. Effect
on the Registration Rights Agreement.
(a) Except
as specifically amended herein, the SPA, the Registration Rights Agreement,
the
Note, the other Related Agreements (as defined in the SPA) and all other
documents, instruments and agreements executed and/or delivered in connection
therewith, shall remain in full force and effect, and are hereby ratified and
confirmed.
(b) The
execution, delivery and effectiveness of this Amendment shall not operate as
a
waiver of any right, power or remedy of Laurus, nor constitute a waiver of
any
provision of the SPA, the Registration Rights Agreement, the Note, any Related
Agreement (as defined in the SPA) or any other documents, instruments or
agreements executed and/or delivered under or in connection
therewith.
7. Governing
Law. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns and shall be governed by and construed in accordance
with
the laws of the State of New York.
8. Headings. Section
headings in this Amendment are included herein for convenience of reference
only
and shall not constitute a part of this Amendment for any other
purpose.
9. Counterparts;
Facsimile. This Amendment may be
executed by the parties hereto in one or more counterparts, each of which shall
be deemed an original and all of which when taken together shall constitute
one
and the same agreement. Any signature delivered by a party by
facsimile transmission shall be deemed to be an original signature
hereto.
[Remainder
of page left intentionally blank. Signature Pages to Follow.]
IN
WITNESS WHEREOF, this Amendment has been duly executed as of the day and year
first written above to be effective as of the Effective Date set forth
above.
TEXHOMA
ENERGY, INC.
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By:
/s/ ▇▇▇▇▇▇
Vesco____________________
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇
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Title: CEO
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TEXAURUS
ENERGY, INC.
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By:/s/
▇▇▇▇▇▇
Vesco____________________
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Name: ▇▇▇▇▇▇
▇▇▇▇▇
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Title: CEO
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LAURUS
MASTER FUND, LTD.
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By:/s/
▇▇▇▇▇▇
Grin_____________________
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Name: ▇▇▇▇▇▇
Grin
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Title:
Director
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