OMNIBUS AMENDMENT AND WAIVER
Exhibit
10.1
This
OMNIBUS AMENDMENT AND WAIVER (this “Amendment”), dated as of
October 26, 2007, is entered into by and between AMS HEALTH SCIENCES, INC.,
a
corporation organized under the laws of Oklahoma (the
“Company”), LAURUS MASTER FUND, LTD., a
Cayman Islands company (“Laurus”), VALENS OFFSHORE SPV I, LTD.
a Cayman Islands company (“VOFSPVI”), VALENS U.S. SPV I, LLC, a
Delaware limited liability company (“VUSSPVI”), ERATO CORP., a
Delaware corporation (“Erato”) and VALENS OFFSHORE SPV II,
CORP., a Delaware corporation (“VOFSPVII” and together with
Laurus, VOFSPVI, VUSSPVI and ERATO, the “Holders” and each, a
“Holder”) for the purpose of amending and amending
and
restating and waiving certain terms of (i) the Secured Convertible Term Note,
dated as of June 28, 2006 (as amended and restated, amended, modified and/or
supplemented from time to time, the “Term Note”), issued
by the Company to Laurus, and subsequently assigned in part by Laurus to each
of
VOFSPVI and VUSSPVI, (ii) the Securities Purchase Agreement, dated as
of June 28, 2006 (as amended, modified or supplemented from time to time, the
“Purchase Agreement”), by and between the Company and Laurus,
and (iii) the Common Stock Purchase Warrant, dated June 28, 2006 (as amended
and
restated, amended, modified and/or supplemented from time to time,
the “Warrant”), issued by the Company to Laurus, and
subsequently assigned by Laurus to Erato, VOFSPVII and
VUSSPVI. Capitalized terms used herein without definition shall have
the meanings ascribed to such terms in the Term Note, the Purchase Agreement
or
the Warrant, as the case may be.
WHEREAS,
the Company and each relevant Holder has agreed to make certain changes to
the
Term Note, the Purchase Agreement and the Warrant as set forth
herein.
NOW,
THEREFORE, in consideration of the above, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
AMENDMENTS
1.
For
payments of Monthly Amounts (as defined in the Term Note) on four Amortization
Dates only, commencing with the Amortization Date occurring on October 1, 2007
and ending with the Amortization Date occurring on January 1, 2008, the amount
of the principal portion of the Monthly Amount due on each of such dates, shall
be $15,000, rather than $83,333.33. The aggregate amount of the difference
between the aggregate amount of the four principal payments payable on such
Amortization Dates prior to the effectiveness of this Amendment and the
aggregate amount of the principal payments payable on such Amortization Dates
after giving effect to this Amendment on the Amendment Effective Date shall
be
referred to herein as “Aggregate Deferred Principal Payment
Amount.” The Aggregate Deferred Principal Payment Amount shall be paid
in full on the Maturity Date (as defined in the Term Note), together with all
accrued and unpaid interest thereon and all other amounts due and payable on
the
Maturity Date under the Term Note, the Purchase Agreement and the other Related
Agreements referred to in the Purchase Agreement. Monthly Amount
payments shall resume pursuant to the Term Note (as in effect immediately prior
to the Amendment Effective Date as defined below) on February 1,
2008.
2. Subsections
(a), (b) and (c) of Section 2.3 (Optional Redemption in Cash) of the Term
Note is deleted in its entirety and replaced as follows:
“2.3 Optional
Redemption in Cash. The Company may prepay this Note at any time
(“Optional Redemption”) by paying to the Holder a sum of money
equal to one hundred twenty-three percent (123%) of the Principal Amount
outstanding.”
3.
The
definition of Exercise Price set forth in clause (d) in the definition section
of the Warrant shall be deleted in its entirety and replaced as
follows:
“(a)
The
Exercise Price” per share applicable under this Warrant shall be $
0.20.”
MISCELLANEOUS
4.
Each Holder understands that the
Company has an affirmative obligation to make prompt public disclosure of
material agreements and material amendments to such agreements and
securities. The Company hereby covenants to report the terms and
provisions of this Amendment on a current report on Form 8-K within four (4)
business days of the date hereof.
5.
Each amendment and waiver set forth
herein shall be effective as of the date first above written (the
“Amendment Effective Date”) on the date when each of the
Company and each Holder shall have executed and the Company shall have delivered
to the Holders its respective counterpart to this Amendment.
6.
All
representations and warranties made in the Purchase Agreement with respect
to
the Warrant or Warrant Shares shall be deemed to have been made as of the date
hereof with respect to the Warrant, as modified hereby, and the shares of the
Company’s Common Stock issuable to Erato, VOFSPVII and/or VUSSPVI upon exercise
thereof.
7.
Except
as specifically set forth in this Amendment, there are no other amendments,
modifications or waivers to the Term Note, the Purchase Agreement or the
Warrant, and all of the other forms, terms and provisions of the Term Note,
the
Purchase Agreement and the Warrant shall remain in full force and
effect.
8.
The Company hereby represents and
warrants to each Holder that after giving effect to this
Amendment: (i) on the date hereof, all representations, warranties
and covenants made by the Company in connection with the Purchase Agreement
and
the Related Agreements referred to therein are true, correct and complete;
and
(ii) on the date hereof, all of the Company’s and its Subsidiaries’ covenant
requirements set forth in the Purchase Agreement and the Related Agreements
referred to therein have been met.
9.
From
and after the Amendment Effective Date, all references to the Term Note, the
Purchase Agreement and the Warrant shall be deemed to be references to the
Term
Note, Purchase Agreement and the Warrant as modified hereby.
10.
This
Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of and be
enforceable by each of the parties hereto and their respective successors and
permitted assigns. THIS AMENDMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK. This Amendment may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, each of the Company and Laurus has caused this
Amendment to be signed in its name effective as of this __ day of
October
2007.
AMS
HEALTH SCIENCES,
INC.
By:/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Vice
President and Chief Financial Officer
LAURUS
MASTER FUND,
LTD.
By:
Laurus Capital
Management, LLC, its investment manager
By:/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Senior
Managing Director
VALENS
OFFSHORE SPV
I, LTD.
By:
Valens Capital
Management, LLC, its investment manager
By:/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Senior
Managing Director
VALENS
U.S. SPV I,
LLC
By:
Valens Capital
Management, LLC, its investment manager
By:/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Senior
Managing Director
ERATO
CORP.
By:
Laurus Capital
Management, LLC, its investment manager
By:/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Senior
Managing Director
VALENS
OFFSHORE SPV
II, CORP.
By:
Valens Capital
Management, LLC, its investment manager
By:/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Senior
Managing Director