Exhibit 10.2
AMENDMENT TO EXCHANGE OF STOCK FOR ASSETS AGREEMENT
THIS AMENDMENT TO EXCHANGE OF STOCK FOR ASSETS AGREEMENT ("Amendment") is
made and entered into effective as of December 15, 2009, by and between
Ciralight Global, Inc., a Nevada limited liability company ("Ciralight Global"),
and ▇▇▇▇▇▇ ▇▇▇▇▇, Sr., an individual ("▇▇▇▇▇").
W I T N E S S E T H:
WHEREAS, Ciralight Global and ▇▇▇▇▇ entered into that certain Exchange of
Stock for Assets Agreement as of April 1, 2009 ("Agreement"), pursuant to the
terms and conditions of which Ciralight Global agreed to buy and ▇▇▇▇▇ agreed to
sell to Ciralight Global certain assets including, but not limited to, patents,
artwork, trademarks, equipment, furniture, trade fixtures, databases, technical
drawings, promotional materials, trade names and inventory parts related to the
Suntracker One, Suntracker Two and other daylighting products previously
distributed through Ciralight Global, Inc., a Utah corporation, which ▇▇▇▇▇
secured through a legal foreclosure against Ciralight, Inc. ("Assets");
WHEREAS, ▇▇▇▇▇ has previously sold, assigned and transferred all of the
Assets to Ciralight Global, except for the patents ("Patents");
WHEREAS, Ciralight Global and ▇▇▇▇▇ desire to amend the Agreement pursuant
to the terms of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Ciralight Global and ▇▇▇▇▇ do
hereby agree as follows:
1. Acceleration of Assignment of Title to Patents; Assginment of Promissory
Note. ▇▇▇▇▇ agrees to proceed with the immediate transfer and conveyance of
▇▇▇▇▇' title to the Patents and Ciralight Global agrees to proceed with the
issuance of the remaining 400,000 restricted shares of Ciralight Global common
stock due to ▇▇▇▇▇ under the Agreement. ▇▇▇▇▇ and Ciralight Global agree that
the Promissory Note in the principal amount of $250,000 to be issued to ▇▇▇▇▇ in
exchange for the patents shall be convertible into 1,000,000 shares of Ciralight
Global common stock at the request of the holder of such Promissory Note. This
conversion feature will allow Ciralight Global to reduce its indebtedness. Upon
receipt by ▇▇▇▇▇ of the 400,000 shares of common stock and the Promissory Note,
▇▇▇▇▇ will execute and deliver assignments necessary and in proper form so as to
make Ciralight Global the sole owner of the title to said Patents. Said
Promissory Note shall be in the form attached hereto as Exhibit "A" and
incorporated herein by reference.
2. Definitions. Unless otherwise defined in this Amendment or the context
otherwise requires, each term used in this Amendment with its initial letter
capitalized which has been specially defined in the Agreement shall have the
same meaning herein as given to such term in the Agreement.
3. Continuing Effect. Except as expressly modified by the terms and
provisions of this Amendment, each of the terms and provisions of the Agreement
are unchanged and continued in full force and effect.
4. Parties Bound. This Amendment shall be binding upon the parties hereto
and their respective successors and assigns.
5. Counterparts. To facilitate execution, this Amendment may be executed in
as many counterparts as may be convenient or required. It shall not be necessary
that the signature of, or on behalf of, each party, or that the signature of all
persons required to bind any party, appear on each counterpart. All counterparts
shall collectively constitute a single instrument. It shall not be necessary in
making proof of this Amendment to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, each of
the parties hereto. Any signature page to any counterpart may be detached from
such counterpart without impairing the legal effect of the signatures thereon
and thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages. Delivery of an executed counterpart
of this Amendment by facsimile transmission shall be binding upon the party
executing and delivering such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year set forth above.
CIRALIGHT GLOBAL:
Ciralight Global, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
▇▇▇▇▇:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇, Sr.
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, Sr.
2
Exhibit A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
CIRALIGHT GLOBAL, INC.
Prime Rate Plus 2% CONVERTIBLE NOTE DUE 2012
$250,000.00 December 15, 2009
1. Principal and Interest. CIRALIGHT GLOBAL, INC., a corporation duly organized
and existing under the laws of the State of Nevada ("Company"), for value
received, hereby promises to pay to the order of ▇▇▇▇▇▇ ▇▇▇▇▇, Sr., or any
successor in interest registered on the books of the Company ("Holder") in
lawful money of the United States at the address of the Holder set forth below,
the principal sum of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00)
on December 15, 2012 ("Maturity Date") (unless earlier converted into shares of
Common Stock (as hereinafter defined, as described in Section 2), together with
simple interest from the date hereof, computed on the basis of a 360-day year of
twelve 30-day months in arrears from the date of original issuance hereof or for
the most recent date to which interest has been paid or duly provided for, on
December 15, 2012, at the rate of Wall Street Journal Prime Rate per annum until
the principal hereof is paid or made available for payment.
Upon payment in full of all principal and interest payable hereunder or
conversion as provided in Section 2, this Note shall be surrendered to the
Company for cancellation.
2. Conversion.
(a) Holder's Right to Convert. Subject to and upon compliance with the
provisions of this Section 2, the Holder of this Note shall be entitled, at his
option, to convert the entire principal amount of this Note into shares of the
Company's common stock ("Common Stock") at the conversion price ("Conversion
Price") of $.25 for each share of Common Stock (appropriately adjusted for any
combination, consolidation, stock split or other recapitalization).
(b) Automatic Conversion. This Note shall be automatically converted into
shares of Common Stock at the Conversion Price immediately upon the closing of a
merger with or into any other corporation, or a reorganization, or a sale or
conveyance of all or substantially all of its assets to any other entity in a
transaction in which the stockholders of the Company immediately before the
3
transaction own immediately after the transaction less than a majority of the
outstanding voting securities of the surviving entity (or its parent).
(c) Mechanics of Conversion. Before any Holder of this Note shall be
entitled to convert the same into shares of Common Stock, he shall surrender
this Note at the office of the Company or of any transfer or conversion agent
for this Note and shall deliver the conversion notice to the Company (which
shall be irrevocable) at such office that he elects to convert the same. If so
required by the Company, this Note and the Conversion Notice shall also be
accompanied by proper assignments thereof to the Company or in blank for
transfer and any requisite federal and state transfer taxes. The Company shall,
as soon as practicable thereafter, issue and deliver at such office to such
Holder of this Note certificate(s) for the number of full shares of Common Stock
to which such Holder shall be entitled as aforesaid and a check or cash in
respect of any fraction of a share of Common Stock issuable upon such
conversion. Such conversion shall be deemed to have been made immediately prior
to the close of business on the date of such surrender of this Note to be
converted.
(d) Reservation of Stock Issuable Upon Conversion. The Company shall at all
times reserve and keep available out of its authorized but unissued shares of
Common Stock solely for the purpose of effecting the conversion of this Note
such number of its shares of Common Stock as shall from time to time be
sufficient to effect the conversion in full of this Note; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion in full of this Note, the Company will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purpose.
(e) No Rights as Stockholder. This Note does not entitle the Holder to any
voting rights or other rights as a stockholder of the Company prior to the
conversion hereof.
3. Place of Payment. All payments due to the Holder hereunder shall be paid to
the Holder at the address which the Holder shall have given written notice to
the Company.
4. Events of Default and Remedies. If any of the following events of default
(individually, an "Event of Default") shall occur for any reason whatsoever (and
whether it shall be voluntary of involuntary or occur or be affected by
operation of law or otherwise):
(a) The Company fails to make payment when due of any principal or interest
payable under this Note, and such failure continues for a period of ten days
after written notice that such payment is due and unpaid;
(b) The Company defaults in the observance or performance of any material
agreement or condition under this Note, and such default continues for a period
of 30 days after written notice or such default is given to the Company by the
Holder.
(c) Any representation or warranty made by the Company to Holder or
Holder's representative(s) shall prove to have been false in any material
respect on the date when made;
4
(d) The Company shall default under any material agreement for borrowed
money which causes the other party thereto to accelerate such obligation;
(e) The Company shall: (i) file, or consent by answer or otherwise to the
filing against it of a petition for relief or reorganization or arrangement or
any other petition in bankruptcy or insolvency law of any jurisdiction; (ii)
make an assignment for the benefit of its creditors; (iii) consent to the
appointment of a custodian, receiver, trustee or other officer with similar
powers of itself or of any substantial part of its property; (iv) be adjudicated
insolvent or be liquidated; or (v) take appropriate action for the purpose of
any of the foregoing; or
(f) A court or governmental authority of competent jurisdiction shall enter
an order appointing a custodian, receiver, trustee or other officer with similar
powers with respect to the Company or any substantial amount of its properties,
or if an order for relief with respect to the Company shall be entered in any
case of proceeding for liquidation or reorganization or otherwise to take
advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering
the dissolution, winding up of liquidation of the Company, of if any petition
for any such relief shall be filed against the Company, and such order or
petition shall not be dismissed or stayed within 70 days after the date of such
filing, then automatically upon the occurrence of such Event of Default the
entire unpaid principal amount of, and the unpaid accrued interest on this Note
shall become immediately due and payable.
5. Additional Remedies. If any Event of Default hereunder shall have occurred,
the Holder may proceed to protect and enforce its rights under this Note by
exercising such remedies as are available to it in respect thereof under the
terms of this Note or applicable law, either by suit in equity or by action at
law, or both, whether for specific performance of any agreement contained in
this Note or in aid of the exercise of any power granted in this Note. No remedy
is intended to be exclusive and each such remedy shall be cumulative.
6. Attorney Fees. If the indebtedness represented by this Note or any part
thereof is collected in bankruptcy, receivership or other judicial proceedings
or if this Note is placed in the hands of attorneys for collection after
default, the Company agrees to pay, in addition to the principal and interest
payable hereunder, reasonable attorneys' fees and costs incurred by the Holder.
7. Notice. All notices, reports and other communications required or permitted
hereunder shall be in writing and may be delivered in person, by telecopy with
written confirmation, overnight delivery service or U.S. mail, in which event it
may be mailed by first-class, certified or registered, postage prepaid,
addressed to the Holder at its address as shown on the books of the Company or
to the Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President.
Each such notice, report or other communication shall for all purposes under
this Note be treated as effective or having been given when delivered, if
delivered personally or, if sent by mail, at the earlier of its receipt or five
days after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and mailed as aforesaid or, if
sent by telecopier with written confirmation, at the earlier of: (i) 24 hours
after confirmation transmission by the sending telecopier machine; or (ii)
delivery of written confirmation.
5
9. Governing Law. This Note is being delivered in and shall be construed in
accordance with the laws of the State of California, without regard to the
conflicts of laws provisions thereof.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Company has
caused this Note to be executed and delivered by its proper and duly authorized
officers as of the date first above written.
CIRALIGHT GLOBAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
6