AMENDMENT
TO
AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT (the "Amendment") is made and entered into effective as of
April 21, 2006, by and among NEWGEN TECHNOLOGIES, INC., a Nevada corporation
(the "Company"), and CORNELL CAPITAL PARTNERS, LP, a Delaware limited
partnership (the "Buyer")
WITNESSTH:
WHEREAS, the Buyer and the Company entered into a Securities Purchase
Agreement dated January 24, 2006 (the "Securities Purchase Agreement"), which
was amended and restated on February 10, 2006 (the "Amended and Restated
Securities Purchase Agreement"), pursuant to which the Company has issued and
sold to the Buyer and the Buyer has purchased from the Company Two Million Eight
Hundred Fifty Thousand Dollars ($2,850,000) of secured convertible debentures,
which shall be convertible into shares of the Company's common stock (the
"Common Stock"), and the Company shall issue and sell to the Buyer and the Buyer
shall purchase from the Company Two Million One Hundred Fifty Thousand Dollars
($2,150,000) of secured convertible debentures (collectively referred to as the
"Convertible Debentures"), which shall be convertible into shares of the
Company's Common Stock two (2) days prior to the date the registration statement
filed, pursuant to the Investor Registration Rights Agreement executed
simultaneously with the Securities Purchase Agreement (the "Investor
Registration Rights Agreement"), with the United States Securities and Exchange
Commission (the "SEC") is declared effective by the SEC;
WHEREAS, contemporaneously with the execution and delivery of the
Securities Purchase Agreement, the parties hereto executed and delivered an
Investor's Registration Rights Agreement pursuant to which the Company agreed to
provide certain registration rights under the Securities Act and the rules and
regulations promulgated there under, and applicable state securities laws;
WHEREAS, contemporaneously with the execution and delivery of the
Securities Purchase Agreement, the parties executed and delivered a Security
Agreement (the "Security Agreement") pursuant to which the Company agreed to
provide the Buyer a security interest in Pledged Collateral (as this term is
defined in the Security Agreement) to secure the Company's obligations under the
Transaction Documents, or any other obligations of the Company to the Buyer;
WHEREAS, contemporaneously with the execution and delivery of the
Securities Purchase Agreement, the parties hereto and the following subsidiaries
of the Company: ReFuel Terminal Operations, Inc., a Delaware corporation, Refuel
America, Inc., a Delaware corporation and NewGen International, Inc. a Delaware
corporation (collectively the "Subsidiaries") executed and delivered a security
agreements (collectively, the "Subsidiary Security Agreement") pursuant to which
the Company and the Subsidiaries agreed to provide the Buyer a security interest
in Pledged Collateral (as this term is defined in the Subsidiary Security
Agreements) to secure the Company's obligations under the under the Transaction
Documents or any other obligations of the Company to the Buyer;
WHEREAS, contemporaneously with the execution and delivery of the
Securities Purchase Agreement, the S. Bruce Wunner, Ian Williamson, Cliff Hazel
and Scott Deininger, delivered Insider Pledge and Escrow Agreements (the
"Insider Pledge Agreements") dated January 24, 2006 herewith among the Company,
the Buyer, S. Bruce Wunner, Ian Williamson, Cliff Hazel and Scott Deininger and
the Escrow Agent which the Ian Williamson and Cliff Hazel Pledge and Escrow
Agreement were amended and restated on February 10, 2006 (collectively be
referred to as the "Pledge and Escrow Agreements") to secure the Company's
obligations under the Transaction Documents, or any other obligations of the
Company to the Buyer; and
WHEREAS, contemporaneously with the execution and delivery of the
Securities Purchase Agreement, the parties hereto are executed and delivered
Irrevocable Transfer Agent Instructions (the "Irrevocable Transfer Agent
Instructions"). (the Amended and Restated Securities Purchase Agreement,
Convertible Debentures Security Agreement, Subsidiary Security Agreement, Pledge
and Escrow Agreements, Investor Registration Rights Agreement, and the
Irrevocable Transfer Agent Instructions shall be referred to as the "Transaction
Documents")
WHEREAS, the parties desire to amend the terms of the Amended and Restated
Securities Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual promises,
conditions and covenants herein contained and in the Transaction Documents, and
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. The Amended and Restated Securities Purchase Agreement is hereby
amended by deleting Section 1(a) in its entirety and inserting in lieu thereof
the following:
1. PURCHASE AND SALE OF CONVERTIBLE DEBENTURES.
(a) Purchase of Convertible Debentures. Subject to the satisfaction
(or waiver) of the terms and conditions of this Agreement, each Buyer agrees,
severally and not jointly, to purchase at each Closing and the Company agrees to
sell and issue to each Buyer, severally and not jointly, at each Closing,
Convertible Debentures in amounts corresponding with the Subscription Amount set
forth opposite each Buyer's name on Schedule I hereto.
2. The Amended and Restated Securities Purchase Agreement is hereby
amended by deleting Section 7(c)(ii) in its entirety and inserting in lieu
thereof the following:
7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
(c) The obligation of the Buyer(s) hereunder to accept the
Convertible Debentures at the Third Closing is subject to the satisfaction, at
or before the Third Closing Date, of each of the following conditions:
(ii) The representations and warranties of the Company shall
be true and correct in all material respects (except to the extent that any of
such representations and warranties is already qualified as to materiality in
Section 3 above, in which case, such representations and warranties shall be
true and correct without further qualification) as of the date when made and as
of the Third Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date) and the Company
shall have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Company at or prior to the Third Closing Date.
If requested by the Buyer, the Buyer shall have received a certificate, executed
by two officers of the Company, dated as of the Third Closing Date, to the
foregoing effect including an update as of the Third Closing Date regarding the
representation contained in Section 3(c) above.
3. The Transaction Documents shall be amended where appropriate to reflect
the changes made herein.
4. Except as set forth hereinabove, all other terms and provisions of the
Transaction Documents shall remain in full force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF the parties have hereunto set their hands and seals the
day and year set above set forth.
COMPANY:
NEWGEN TECHNOLOGIES, INC.
By:/s/ S. Bruce Wunner
----------------------------------
Name: S. Bruce Wunner
Title: CEO
INVESTOR:
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By:/s/ Mark A. Angelo
-----------------------------------
Name: Mark A. Angelo
Title: Portfolio Manager and President