AMENDMENT AGREEMENT
THIS
AMENDMENT AGREEMENT (this “Amendment”)
is
entered into as of May 2, 2007, by and among Xxxxxx Equipment, Inc., a Delaware
corporation (“Xxxxxx
Equipment”),
Xxxxxx Ventures, Inc., a Delaware corporation (“Xxxxxx
Ventures”
and
together with Xxxxxx Equipment, each a “Company”
and
collectively the “Companies”),
and
Laurus Master Fund, Ltd. (“Laurus”).
BACKGROUND
Companies
and Laurus are parties to a Security and Purchase Agreement dated as of November
9, 2004 (as amended, restated, supplemented or otherwise modified from time
to
time, the “Security
and Purchase Agreement”)
pursuant to which Laurus provides Companies with certain financial
accommodations.
In
connection with the Security and Purchase Agreement, Xxxxxx Equipment and Laurus
are parties to (a) a Registration Rights Agreement dated as of November 8,
2006
(as amended, restated, supplemented or otherwise modified from time to time,
the
“2006
RRA”)
pursuant to which Xxxxxx Equipment, among other things, has agreed to file
a
registration statement covering the Registrable Securities (as therein defined)
and (b) a Registration Rights Agreement dated as of January 11, 2007 (as
amended, restated, supplemented or otherwise modified from time to time, the
“2007
RRA”
together with the 2006 RRA, each a “Registration
Rights Agreement”
and
collectively, the “Registration
Rights Agreements”)
pursuant to which Xxxxxx Equipment, among other things, has agreed to file
a
registration statement covering the Registrable Securities (as therein
defined).
Pursuant
to that certain Default Notice dated August 17, 2006 from Laurus to the
Companies and certain other parties listed therein, Laurus notified Companies
that various Events of Default have occurred and are continuing under the
Agreement (the “Existing
Defaults”).
The
Companies have requested that Laurus amend each Registration Rights Agreement
and, notwithstanding the occurrence and continuance of the Existing Defaults,
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. Definitions.
All
capitalized terms not otherwise defined herein shall have the meanings given
to
them in the Security and Purchase Agreement.
2. Amendments
to Registration Rights Agreement.
Subject
to satisfaction of the conditions precedent set forth in Section 3 below, the
following defined terms set forth in Section 1 of each Registration Rights
Agreement are hereby amended in their entirety to provide as
follows:
“Effectiveness
Date”
means,
(i) with respect to the Registration Statement required to be filed in
connection with the shares of Common Stock issuable upon exercise of the
Warrants issued on the date hereof, December 24, 2007 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.”
“Filing
Date”
means,
with respect to (1) the Registration Statement required to be filed in
connection with the shares of Common Stock issuable to the Holder upon exercise
of a Warrant, October 24, 2007, and (2) the Registration Statement required
to
be filed in connection with the shares of Common Stock issuable to the Holder
as
a result of adjustments to the Exercise Price made pursuant to Section 4 of
the
Warrant or otherwise, thirty (30) days after the occurrence of such event or
the
date of the adjustment of the Exercise Price.
3. 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
Companies and consented and agreed to by each Guarantor, and (ii) all such
other
certificates, instruments, documents, agreements and opinions of counsel as
may
be required by Laurus or its counsel, each of which shall be in form and
substance satisfactory to Laurus and its counsel.
4. Representations
and Warranties.
Each
Company hereby represents and warrants as follows:
(a) This
Amendment, the Security and Purchase Agreement and each Registration Rights
Agreement, as amended hereby, constitute legal, valid and binding obligations
of
Companies and are enforceable against Companies in accordance with their
respective terms.
(b) Upon
the
effectiveness of this Amendment, each Company hereby reaffirms all covenants,
representations and warranties made in the Security and Purchase Agreement
and
each Registration Rights Agreement, 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) Companies
have no defense, counterclaim or offset with respect to the Security and
Purchase Agreement, each Registration Rights Agreement or any Ancillary
Agreement.
5. Effect
on the Registration Rights Agreements.
(a) Upon
the
effectiveness of Section
2
hereof,
each reference in each Registration Rights Agreement to “this Agreement,”
“hereunder,” “hereof,” “herein” or words of like import shall mean and be a
reference to each Registration Rights Agreement, as applicable, as amended
hereby.
(b) Except
as
specifically amended herein, the Security and Purchase Agreement, each
Registration Rights Agreement, 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.
(c) 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 Security and Purchase Agreement, each Registration Rights
Agreement, any Ancillary Agreement or any other documents, instruments or
agreements executed and/or delivered under or in connection
therewith.
6. Waiver
of Liquidated Damages under Registration Rights Agreements.
Laurus
hereby waives all liquidated damages which would otherwise have been payable
by
Xxxxxx Equipment to Laurus through the date hereof under and in accordance
with
Section 2(b) of each Registration Rights Agreement.
7. Existing
Defaults.
(a) Each
Company acknowledges that (a) the occurrence and continuance of the Existing
Defaults entitles Laurus to exercise its rights and remedies under the Security
and Purchase Agreement, the Ancillary Agreements and applicable law including,
without limitation, (i) the right to declare all Obligations due and payable
and
(ii) the right to enforce and exercise any and all of its rights, remedies,
Liens and security interests under the Security and Purchase Agreement and
the
Ancillary Agreements and (b) Laurus’ (i) entering into this Amendment, (ii)
continuing to provide financial accommodations to the Companies and (iii)
voluntary forbearance, if any, from exercising any of its rights or remedies
is
not intended (and should not be construed) as a waiver of the Existing Defaults
or Laurus’ rights and remedies with respect thereto, all of which are reserved
and preserved by Laurus. Any waiver of any Existing Default shall only be
effective if set forth in a written instrument executed and delivered in
accordance with the terms of the Security and Purchase Agreement.
(b) Nothing
contained herein shall (a) limit in any manner whatsoever each Company’s, each
guarantor’s and each other Person’s obligation to comply with, and Laurus’ right
to insist on such Company’s, such guarantor’s and such other Person’s compliance
with, each and every term of the Security and Purchase Agreement and the
Ancillary Agreements, or (b) constitute a waiver of any Event of Default
(including, without limitation, any Existing Default) or any right or remedy
available to Laurus, or of any Company’s, any guarantor’s or any other Person’s
obligation to pay and perform all of its obligations, in each case whether
arising under the Security and Purchase Agreement, the Ancillary Agreements,
applicable law and/or in equity, all of which rights and remedies howsoever
arising are hereby expressly reserved, are not waived and may be exercised
by
Laurus at any time.
8. 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.
9. 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.
10. 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 or electronic transmission shall be deemed to be an original
signature hereto.
[Signature
Pages to Follow]
IN
WITNESS WHEREOF, this Amendment has been duly executed as of the day and year
first written above.
XXXXXX
EQUIPMENT, INC.
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By: | /s/ XXXXXXX XXXXXX | |
Name:
Xxxxxxx Xxxxxx
Title:
CRO
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XXXXXX
VENTURES, INC.
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By: | /s/ XXXXXXX XXXXXX | |
Name:
Xxxxxxx Xxxxxx
Title:
CRO
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LAURUS
MASTER FUND, LTD.
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By: | /s/ XXXXX GRIN | |
Name:
Xxxxx Grin
Title:
Fund Manager
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