ex_10-2.htm


     

    EXHIBIT 10.2


    


      AMENDMENT
AGREEMENT

      
 

      THIS AMENDMENT AGREEMENT
(the “Agreement”),
dated as of June 1, 2009, is by and among Akeena Solar, Inc., a Delaware
corporation (the “Company”)
and the investors signatory hereto (each, a “Purchaser”
and collectively, the “Purchasers”).

       

      WHEREAS, the Company and the
Purchasers are parties to that certain Securities Purchase Agreement (the “Purchase
Agreement”), dated February 26, 2009, pursuant to which the Company
issued to the Purchasers common stock, preferred stock and common stock purchase
warrants, including, the Series G Common Stock Purchase Warrants to purchase up
to 2,196,400 shares of Common Stock, in the aggregate, in the individual amounts
set forth on Schedule
A attached hereto (the “February
Series G Warrants”).

       

      WHEREAS, the Company and the
Purchasers are parties to that certain Amendment Agreement (the “April
Amendment”), dated April 20, 2009, pursuant to which, among other things,
the Company issued to the Purchasers additional Series G Common Stock Purchase
Warrants to purchase up to 1,275,000 shares of Common Stock, in the aggregate
(the “April
Series G Warrants” and together with the outstanding February Series G
Warrants, the “Outstanding
Series G Warrants”).

       

      WHEREAS, the parties wish to
amend certain terms of the Outstanding Series G Warrants, provide for the
current exercise of a portion of the Outstanding Series G Warrants, and provide
for the issuance to the Purchases of new warrants, all pursuant to the terms
hereof.

       

      WHEREAS, capitalized terms
used herein, but not otherwise defined, shall have the meanings ascribed to such
terms as set forth in the Purchase Agreement, the April Amendment or the
Outstanding Series G Warrants, as applicable.

       

      NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and
for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Purchasers and the Company agree as
follows:

       

      1. Exercise
of Outstanding Series G Warrants.  Each Purchaser hereby
agrees, severally and not jointly with the other Purchasers, to exercise the
number of such Purchaser’s Outstanding Series G Warrants set forth on Schedule
B attached hereto simultaneously with or prior to the Closing, at an
exercise price equal to $1.12 per share, for
aggregate gross cash proceeds to be received by the Company simultaneously with
or prior to the Closing from all Purchasers of $700,000, otherwise pursuant
to the terms of the Outstanding Series G Warrants.  The cash exercise
price to be paid by each Purchaser shall be referred to as such Purchaser’s
“Exercise
Amount” and shall be as set forth on Schedule
B.  Each Purchaser shall execute and deliver such Purchaser’s
Exercise Amount to the bank account designated in writing by the Company set
forth on Schedule
C attached hereto; provided,
however,
that a Purchaser shall not be required to exercise such certain portion of its
Outstanding Series G Warrant to the extent that Section 2(e) of the Outstanding
Series G Warrant is violated by the resulting Common Stock issuance of such
certain portion. Immediately upon delivery of the Exercise Amount, the Company
shall instruct the Transfer Agent to deliver, on an expedited basis, a
certificate for the shares purchased hereunder by crediting the account of such
Purchaser’s prime broker with the Depository Trust Company through its Deposit
Withdrawal Agent Commission system, as set forth on each Purchaser’s signature
page hereto.

       

      2. Amendments
to the Outstanding Series G Warrants.

       

      (a) Term.
The term of the Outstanding Series G Warrants shall be extended such that the
Termination Date thereof shall be on or prior to November 6,
2009.

       

      (b) Adjustments
for Subsequent Rights Offerings and Pro Rata Distributions. Section 3(c)
and Section 3(d) of the Outstanding Series G Warrants shall each be deleted in
its entirety.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (c) Adjustments
for Fundamental Transaction. The option for the Purchaser to receive the
Black Scholes Value upon a Fundamental Transaction shall be deleted from the
Outstanding Series G Warrants. As such, Section 3(e) of the Outstanding
Series G Warrants shall be amended and restated in its entirety with the
following:

       

      “(e)           Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the
Company, directly or indirectly, in one or more related transactions effects any
merger or consolidation of the Company with or into another Person, (ii) the
Company, directly or indirectly, effects any sale, lease, license, assignment,
transfer, conveyance or other disposition of all or substantially all of its
assets in one or a series of related transactions, (iii) any, direct or
indirect, purchase offer, tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common Stock are
permitted to sell, tender or exchange their shares for other securities, cash or
property and has been accepted by the holders of 50% or more of the outstanding
Common Stock, (iv) the Company, directly or indirectly, in one or more related
transactions effects any reclassification, reorganization or recapitalization of
the Common Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other securities, cash or
property, (v) the Company, directly or indirectly, in one or more related
transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with another Person whereby such other Person
acquires more than 50% of the outstanding shares of Common Stock (not including
any shares of Common Stock held by the other Person or other Persons making or
party to, or associated or affiliated with the other Persons making or party to,
such stock or share purchase agreement or other business combination) (each a
“Fundamental
Transaction”), then, upon any subsequent exercise of this Warrant, the
Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such
Fundamental Transaction, at the option of the Holder (without regard to any
limitation in Section 2(e) on the exercise of this Warrant), the number of
shares of Common Stock of the successor or acquiring corporation or of the
Company, if it is the surviving corporation, and any additional consideration
(the “Alternate
Consideration”) receivable as a result of such Fundamental Transaction by
a holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such Fundamental Transaction (without regard to
any limitation in Section 2(e) on the exercise of this Warrant).  For
purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration.  If holders of Common Stock are given any choice as to
the securities, cash or property to be received in a Fundamental Transaction,
then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental
Transaction.  The Company shall cause any successor entity in a
Fundamental Transaction in which the Company is not the survivor (the “Successor
Entity”) to assume in writing all of the obligations of the Company under
this Warrant and the other Transaction Documents in accordance with the
provisions of this Section 3(e) pursuant to written agreements in form and
substance reasonably satisfactory to the Holder and approved by the Holder
(without unreasonable delay) prior to such Fundamental Transaction and shall, at
the option of the holder of this Warrant, deliver to the Holder in exchange for
this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant which is
exercisable for a corresponding number of shares of capital stock of such
Successor Entity (or its parent entity) equivalent to the shares of Common Stock
acquirable and receivable upon exercise of this Warrant (without regard to any
limitations on the exercise of this Warrant) prior to such Fundamental
Transaction, and with an exercise price which applies the exercise price
hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and
the value of such shares of capital stock, such number of shares of capital
stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental
Transaction), and which is reasonably satisfactory in form and substance to the
Holder. Upon the occurrence of any such Fundamental Transaction, the Successor
Entity shall succeed to, and be substituted for (so that from and after the date
of such Fundamental Transaction, the provisions of this Warrant and the other
Transaction Documents referring to the “Company” shall refer instead to the
Successor Entity), and may exercise every right and power of the Company and
shall assume all of the obligations of the Company under this Warrant and the
other Transaction Documents with the same effect as if such Successor Entity had
been named as the Company herein.”

       

      (d) Adjustments
for Variable Rate Transaction. The option for the Purchaser to receive an
adjustment upon a Variable Rate Transaction shall be deleted from the
Outstanding Series G Warrants. As such, Section 3(g)(i) of the Outstanding
Series G Warrants shall be amended and restated in its entirety with the
following:

       

      “i.           Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to
any provision of this Section 3, the Company shall promptly mail to the Holder a
notice setting forth the Exercise Price after such adjustment and setting forth
a brief statement of the facts requiring such adjustment.”

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      3. No
Variable Rate Transactions. From the date hereof until the 12 month
anniversary of the date hereof, the Company agrees that it shall not effect or
enter into an agreement to effect any issuance by the Company or any of its
Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration
involving a Variable Rate Transaction, as defined below; provided,
however, that from and after December 1, 2009, the Company is
permitted to enter into, put into effect and draw upon an equity line of credit,
so long as any sales of Common Stock by the Company thereunder are at prices per
share not less than $2.68 (as appropriately adjusted for stock splits,
recapitalizations, and like events).  “Variable
Rate Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are convertible
into, exchangeable or exercisable for, or include the right to receive
additional shares of Common Stock either (A) at a conversion price, exercise
price or exchange rate or other price that is based upon and/or varies with the
trading prices of or quotations for the shares of Common Stock at any time after
the initial issuance of such debt or equity securities, or (B) with a
conversion, exercise or exchange price that is subject to being reset at some
future date after the initial issuance of such debt or equity security or upon
the occurrence of specified or contingent events directly or indirectly related
to the business of the Company or the market for the Common Stock or
(ii) enters into any agreement, including, but not limited to, an equity
line of credit, whereby the Company may sell securities at a future determined
price.  Any Purchaser shall be entitled to obtain injunctive relief
against the Company to preclude any such issuance, which remedy shall be in
addition to any right to collect damages.

       

      4. Issuance
of New Series H Warrants.  Each Purchaser shall be issued new
Series H Common Stock Purchase Warrants, which shall (a) be exercisable at any
time after the 181st
day following the date hereof, (b) have a term of exercise equal to 6 months
following the initial date of exercise and an exercise price equal to $1.34, subject to adjustment
therein and (c) be registered in the name of such Purchaser to purchase up to a
number of shares of Common Stock as set forth on Schedule
D hereto (the “Series
H Warrants”). The Series H Warrants shall be the form attached hereto as
Exhibit
A.  The shares of Common Stock underlying such Series H
Warrants shall be referred to herein as the “Warrant
Shares” as defined pursuant to the Purchase
Agreement.

       

      5. Closing.
The date of the closing of the exercise of the Outstanding Series G Warrants,
the issuance of the New Series H Warrants and the other transactions
contemplated hereunder shall be referred to as the “Closing”.

       

      6. Registration
Statement and Prospectus Supplement.  The Series H Warrants and
the Warrant Shares shall be issued pursuant to the effective Registration
Statement (as defined in the Purchase Agreement), including the Prospectus
Supplement (which may be delivered in accordance with Rule 172 under the
Securities Act) to be filed in connection herewith.

       

      7. Effect
on Transaction Documents. Except as expressly
set forth herein, all of the terms and conditions of the Transaction Documents
shall continue in full force and effect after the execution of this Agreement,
and shall not be in any way changed, modified or superseded by the terms set
forth herein.  This
Agreement shall not constitute a novation or satisfaction and accord of any
Transaction Document.

       

      8. Filing
of Form 8-K.  On or before 8:30 am (NY time) on the Trading Day
immediately following the date hereof, the Company shall file a Current Report
on Form 8-K, reasonably acceptable to the Holders disclosing the material terms
of the transactions contemplated hereby and attaching this Agreement as an
exhibit thereto.

       

      9. Conditions
to Purchasers’ Obligations.  The respective obligations of the
Purchasers hereunder in connection with the Closing are subject to the following
conditions being met:

       

      (a) the
accuracy in all material respects on the date of the Closing of the
representations and warranties of the Company contained
herein;

       

      (b) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing shall have been performed;

       

      (c) all
Purchasers that are party to the Purchase Agreements shall have agreed to the
terms and conditions of this Agreement, including exercising their respective
Outstanding Series G Warrants on a pro-rata basis pursuant to the terms
hereunder;

       

      (d) the
delivery of an opinion of Company Counsel regarding this Agreement and the
issuance and delivery of the Series H Warrants hereunder, in form and substance
reasonably acceptable to the Purchasers;

       

      (e) there
shall have been no Material Adverse Effect with respect to the Company since the
date hereof; and

       

      (f) from
the date hereof to the Closing, trading in the Common Stock shall not have been
suspended by the Commission (except for any suspension of trading of limited
duration agreed to by the Company, which suspension shall be terminated prior to
the Closing), and, at any time prior to the Closing, trading in securities
generally as reported by Bloomberg Financial Markets shall not have been
suspended or limited, or minimum prices shall not have been established on
securities whose trades are reported by such service, or on any Trading Market,
nor shall a banking moratorium have been declared either by the United States or
New York State authorities nor shall there have occurred any material outbreak
or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial
market which, in each case, in the reasonable judgment of each Purchaser, makes
it impracticable or inadvisable to consummate the transactions
hereunder.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      10. Conditions
to Company’s Obligations. The obligations of the Company hereunder in
connection with the Closing as to each Purchaser are subject to the following
conditions being met:

       

      (a) the
accuracy in all material respects on the date of the Closing of the
representations and warranties of such Purchaser contained
herein;

       

      (b) all
obligations, covenants and agreements of such Purchaser required to be performed
at or prior to the Closing shall have been performed; and

       

      (c) receipt
by the Company of the proceeds from exercise of the Outstanding Series G
Warrants by such Purchaser, in the amount set forth on Schedule
B.

       

      11. Representations
and Warranties of the Company.  The Company hereby makes the
representations and warranties set forth below to the Purchasers, that as of the
date of its execution of this Agreement:

       

      (a) Authorization;
Enforcement.  The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder.  The
execution and delivery of this Agreement 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 other than in connection with the Required Approvals.  This
Agreement 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) No
Conflicts.  The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not: (i) conflict with or violate any
provision of the Company’s certificate of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the properties or
assets of the Company, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of,
any agreement, credit facility, debt or other material instrument (evidencing
Company debt or otherwise) or other understanding to which the Company is a
party or by which any property or asset of the Company is bound or affected, or
(iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the Company is
subject (including federal and state securities laws and regulations), or by
which any property or asset of the Company is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or reasonably be
expected to result in a Material Adverse Effect.

       

      (c) Capitalization.  The
capitalization of the Company is as set forth in the Registration Statement or
Prospectus Supplement.  The Series H Warrants and Warrant Shares, when
issued in accordance with the terms of this Agreement will be duly authorized,
validly issued, fully paid and nonassessable. Except as described in this
Section 11(c), the Registration Statement or Prospectus Supplement, or as set
forth on Schedule
11(c), there are no issued or outstanding securities and no issued or
outstanding options, warrants or other rights, or commitments or agreements of
any kind, contingent or otherwise, to purchase or otherwise acquire shares of
Common Stock or any issued or outstanding securities of any nature convertible
into shares of Common Stock.

       

      (d) Other
Representations, Warranties and Covenants. Except as set forth on Schedule
11(d), the representations, warranties and covenants of the Company with
respect to the Series H Warrants and Warrant Shares shall be identical in all
respects to the representations, warranties and covenants of the Company with
respect to the Outstanding Series G Warrants (and shares of Common Stock
underlying the Outstanding Series G Warrants) issued pursuant to the Purchase
Agreement and other Transaction Documents and the Company hereby makes such
representations, warranties and covenants as though fully set forth herein as of
the date hereof, and all such representations, warranties and obligations are
incorporated herein by reference.

       

      12. Representations
and Warranties of the Purchasers.  Each Purchaser, for itself
and for no other Purchaser, hereby makes the representations and warranties to
the Company that it made in the Purchase Agreement as though fully set forth
herein as of the date hereof (other than with respect to Section 3.2(e) thereof,
as to which no bring-down is given), and all such representations and warranties
are incorporated herein by reference including, without limitation, that (a) the
execution and delivery of this Agreement by it and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
action on its behalf and (b) this Agreement has been duly executed and delivered
by such Purchaser and constitutes the valid and binding obligation of such
Purchaser, enforceable against it in accordance with its
terms.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      13. Notices.  Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be delivered as set forth in the Purchase
Agreement.

       

      14. Survival;
Successors and Assigns. All warranties and representations (as of the
date such warranties and representations were made) made herein or in any
certificate or other instrument delivered by a party or on its behalf under this
Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the issuance of the Series H Warrants. This Agreement
shall inure to the benefit of and be binding upon the successors and permitted
assigns of each of the parties; provided,
however,
that no party may assign this Agreement or the obligations and rights of such
party hereunder without the prior written consent of the other parties
hereto.

       

      15. Execution
and Counterparts.  This Agreement 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.

       

      16. Governing
Law.  All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined pursuant to
the Governing Law provision of the Purchase Agreement.

       

      17. Severability.
If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.

       

      18. Construction.
The parties agree that each of them and/or their respective counsel has reviewed
and had an opportunity to revise this Agreement and, therefore, the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any amendments hereto. In addition, each and every reference to share prices
in this Agreement shall be subject to adjustment for reverse and forward stock
splits, stock dividends, stock combinations and other similar transactions of
the Common Stock that occur after the date of this
Agreement.

       

      19. Entire
Agreement.  This Agreement, together with the exhibits and
schedules hereto, contain the entire understanding of the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.

       

      20. Independent
Nature of Purchasers’ Obligations and Rights.  The obligations
of each Purchaser hereunder are several and not joint with the obligations of
any other Purchasers hereunder, and no Purchaser shall be responsible in any way
for the performance of the obligations of any other Purchaser hereunder. Nothing
contained herein or in any other agreement or document delivered at any closing,
and no action taken by any Purchaser pursuant hereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Purchaser shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to be joined as
an additional party in any proceeding for such purpose.

       

      21. Fees
and Expenses.  Except as expressly set forth herein, each party
will be responsible for its own fees and expenses incurred in connection with
the preparation, execution, delivery and performance of this Agreement,
including payment of the fees and expenses of its advisers, counsel, accountants
and other experts, if any.

       

      22. Termination. 
This Agreement may be terminated by any Purchaser, as to such Purchaser’s
obligations hereunder only and without any effect whatsoever on the obligations
between the Company and the other Purchasers, by written notice to the other
parties, if the Closing has not been consummated on or before June 15, 2009;
provided,
however,
that no such termination will affect the right of any party to sue for any
breach by the other party (or parties) which occurred prior to such date of
termination.


    

    


    ***********************

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

     

    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.

     

    


    
      	
              AKEENA
      SOLAR, INC.

               

               

            
	
              By:__________________________________________

                   Name:  Gary
      Effren

                   Title:  Chief
      Financial Officer

               

            


    

    


    


    


    


    


    


    


    


    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    [PURCHASER
SIGNATURE PAGES TO AKNS AMENDMENT AGREEMENT]

     

    IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
by their respective authorized signatories as of the date first indicated
above.

     

    Name of
Purchaser: ALPHA
CAPITAL ANSTALT

    Signature of Authorized Signatory of
Purchaser: __________________________________

    Name of
Authorized Signatory:
____________________________________________________

    Title of
Authorized Signatory:
_____________________________________________________

    Email
Address of
Purchaser:________________________________________________

    


    Address
for Notice of Purchaser:

    


    


    


    


    Address
for Delivery of Securities for Purchaser (if not same as above):

    


    


    


    


    The
Warrant Shares shall be delivered to the following DWAC Account
Number:

    


    Account
Number

    Clearing
Firm:

    


    


    


    


    Outstanding
Series G Warrants to be exercised: 500,000

    Total
Exercise Price: $560,000

    Series H
Warrants: 500,000

    


    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    [PURCHASER
SIGNATURE PAGES TO AKNS AMENDMENT AGREEMENT]

     

    IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
by their respective authorized signatories as of the date first indicated
above.

     

    Name of
Purchaser: WHALEHAVEN
CAPITAL FUND LTD.

    Signature of Authorized Signatory of
Purchaser: __________________________________

    Name of
Authorized Signatory:
____________________________________________________

    Title of
Authorized Signatory:
_____________________________________________________

    Email
Address of
Purchaser:________________________________________________

    


    Address
for Notice of Purchaser:

    


    


    


    


    Address
for Delivery of Securities for Purchaser (if not same as above):

    


    


    


    


    


    The
Warrant Shares shall be delivered to the following DWAC Account
Number:

    


    


    


    


    


    Outstanding
Series G Warrants to be exercised: 125,000

    Total
Exercise Price: $140,000

    Series H
Warrants: 125,000

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    SCHEDULE
A

    OUTSTANDING
Series G WARRANTS

    


    
      	
              NAME
      OF PURCHASER

            	
              TOTAL
      NUMBER OF OUTSTANDING Series G WARRANTS

            
	
              Alpha
      Capital Anstalt

            	 
      
	
              Whalehaven
      Capital Fund Ltd.

            	 
      
	
              TOTAL

            	 
      


    

    


    


    SCHEDULE
B

    OUTSTANDING
SERIES G WARRANTS TO BE EXERCISE AT CLOSING

    


    
      	
              NAME
      OF PURCHASER

            	
              NUMBER
      OF OUTSTANDING SERIES G WARRANTS TO BE EXERCISED

            	
              EXERCISE
      AMOUNT ($1.12 per share)

            
	
              Alpha
      Capital Anstalt

            	
              500,000

            	
              $560,000

            
	
              Whalehaven
      Capital Fund Ltd.

            	
              125,000

            	
              $140,000

            
	
              Total

            	
              625,000

            	
              $700,000

            


    

    


    


    


    SCHEDULE
C

    WIRE
INSTRUCTIONS FOR COMPANY

    


    


    


    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    


    SCHEDULE D

    SERIES
H WARRANTS

    


    
      	
              NAME
      OF PURCHASER

            	
              NUMBER
      OF SERIES H WARRANTS

            
	
              Alpha
      Capital Anstalt

            	
              500,000

            
	
              Whalehaven
      Capital Fund Ltd.

            	
               

              125,000

            
	
              Total

            	
              625,000