Exhibit 10.60
AMENDMENT NO. 1 TO SECURITIES
PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO
SECURITIES PURCHASE AGREEMENT (this “ Amendment
”) is dated as of March 6, 2009, by and between ADA-ES,
Inc., a Colorado corporation (the “ Company ”)
and the several purchasers signatory hereto (the “
Purchasers ”). This Amendment shall be effective as of
March 1, 2009. Capitalized terms used in this Amendment and
not otherwise defined herein shall have the meanings ascribed
thereto in the Purchase Agreement (defined below).
RECITALS
WHEREAS , the Company and the Purchasers entered into
that certain Securities Purchase Agreement dated as of
October 1, 2008 (the “ Purchase Agreement
”).
WHEREAS , the Company and the Purchasers wish to amend
the Purchase Agreement as provided herein.
AGREEMENT
NOW THEREFORE
, in consideration of the premises
and agreements herein contained and intending to be legally bound
hereby, the parties hereby agree as follows:
1.01 Amendments
. The Purchase Agreement
is hereby amended as follows:
a. The reference to “March 2,
2009” in Section 6.03c. is deleted and replaced with
“June 30, 2009 except that such date shall automatically be
extended for successive 90 day periods unless and until either the
Company or the Purchasers provides written notice (an “
Expiration Notice ”) to the Purchasers’
Representative or the Company, as applicable at least 10 Business
Days prior to such extension that it does not wish to extend such
date.”
b. Except as modified hereby, the
Purchase Agreement is reaffirmed in all respects, and all
references therein to “this Agreement” shall mean the
Purchase Agreement, as modified hereby.
1.02 Severability
. Should any part or
provision of this Amendment be held unenforceable or in conflict
with the applicable laws or regulations of any jurisdiction, the
invalid or unenforceable part or provisions shall be replaced with
a provision which accomplishes, to the extent possible, the
original business purpose of such part or provision in a valid and
enforceable manner, and the remainder of this Amendment shall
remain in full force and effect and binding upon the parties
hereto.
1.03 Governing Law
. THIS AMENDMENT
(INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO
THIS AMENDMENT) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO
CONFLICT OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF
ANY LAW OTHER THAN THE LAW OF THE STATE OF DELAWARE.
1.04 Counterparts
. This Amendment may be
executed in two or more counterparts, each of which shall be deemed
an original and all of which together shall constitute one
instrument.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties
hereto have executed this Amendment as of the day and year first
above written.
