Exhibit 4.5
WAIVER AND CONSENT
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This WAIVER AND CONSENT (this "Waiver") is executed as of
this 3rd day of February 2006, by and among ▇▇▇▇▇▇ COMPANIES, INC., a
Missouri corporation (the "Company"), and each of OMICRON MASTER TRUST
("Omicron"), SMITHFIELD FIDUCIARY LLC ("Smithfield"), IROQUOIS CAPITAL, L.P.
("Iroquois"), CRANSHIRE CAPITAL, L.P. ("Cranshire"), and MIDSUMMER
INVESTMENT LTD. ("Midsummer," and, collectively with Omicron, Smithfield,
Iroquois and Cranshire, the "Investors"). Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Loan
and Warrant Agreement referenced below.
W I T N E S S E T H:
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WHEREAS, the Company and the Investors are parties to that
certain Loan and Warrant Agreement, dated as of September 29, 2005 (the
"Purchase Agreement"), which contemplates that the Company will issue and
sell to the Investors, and the Investors would purchase from the from the
Company, up to $50 million aggregate principal amount of Senior Convertible
Notes (the "Notes"), along with Warrants to purchase Common Stock of the
Company, the in four separate closings, of which the parties have completed
the First Closing and the Second Closing; and
WHEREAS, Section 2.3 of the Purchase Agreement
contemplates that the issuance and sale by the Company of $20 million
aggregate principal amount of Notes and accompanying Warrants pursuant to a
Third Closing would occur the option of the Company at any time after the
later to occur of (i) the day following the date the Registration
Statement(s) covering the resale of the Underlying Shares issued in the
First Closing and the Second Closing become effective, and (ii) the 120th
day following the First Closing Date (the "Third Closing Conditions"); and
WHEREAS, the Investors have agreed to waive the Third
Closing Conditions as of the date hereof as to the purchase by the Investors
of $10 million aggregate principal amount of Notes and accompanying Warrants
to be issued at the Third Closing and that the Company would have the option
to cause the Investors to purchase the remaining $10 million of Notes
contemplated by the Third Closing at such time as the Third Closing
Conditions have been satisfied.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Waiver of Third Closing Conditions as to $10 Million
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Principal Amount of Notes. Notwithstanding any provision of Section 2.3 of
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the Purchase Agreement to the contrary, subject to the terms and conditions
hereof the Investors hereby waive the Third Closing Conditions, and hereby
agree to purchase from the Company $10 million aggregate principal amount of
Notes and accompanying Warrants in the amounts and designations set forth on
Exhibit A hereto (the "Subject Notes"). The provisions of the Purchase
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Agreement relating to the
remaining $10 million aggregate principal amount of Notes contemplated to be
issued in the Third Closing pursuant to Section 2.3 of the Agreement shall
remain in full force and effect.
2. Conversion Price and Closing Documents. The Conversion
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Price for the $10 million aggregate principal amount of the Subject Notes
shall be equal to 100% of the arithmetic average of the VWAP of the
Company's Common Stock for the 10 Trading Days immediately preceding the
date hereof. The Conversion Price for the remaining $10 million aggregate
principal amount of the Notes to be issued at the Third Closing shall be
equal to 100% of the arithmetic average of the VWAP of the Company's Common
Stock for the 10 Trading Days immediately preceding the closing date of the
issuance of such additional Notes as specified in Section 2.3(c) of the
Purchase Agreement. The various documents and deliveries set forth in
Section 2.8 of the Purchase Agreement shall be delivered with respect to the
purchase and sale of the Subject Notes as soon as practicable after the date
hereof.
3. Use of Proceeds. The Borrower shall use at least
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$50,000 of net proceeds from the sale of the Subject Notes for the payment
of fees and expenses incurred by the Company for public relations, including
without limitation investor relations.
4. Counterparts. This Waiver may be executed in two or
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more counterparts and all executed counterparts shall constitute one
agreement, binding on all parties hereto as of the date hereof.
5. Binding Effect. This Waiver shall be binding on and be
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enforceable by and against each party hereto and their respective heirs,
executors, administrators, personal representatives, successors and assigns.
6. Entire Agreement; Governing Law. All prior negotiations
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and agreements between the parties hereto regarding the subject matter
hereof are superseded by this Waiver. This Waiver shall be governed and
construed in accordance with the internal laws of the State of New York,
without regard to conflicts of laws principles. Except as otherwise
specifically provided herein, all rights and obligations of the parties
pursuant to and under the Purchase Agreement, the Notes and the Registration
Rights Agreement shall remain in full force and effect following the date of
this Waiver.
[Remainder of the page intentionally left blank. Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Waiver to be duly executed as of the day and year first above written.
▇▇▇▇▇▇ COMPANIES, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Chief Executive Officer
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OMICRON MASTER TRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Partner
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SMITHFIELD FIDUCIARY LLC
By: /s/ ▇▇▇▇ ▇. Chill
Name: ▇▇▇▇ ▇. Chill
Title: Authorized Signatory
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IROQUOIS CAPITAL, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Partner
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CRANSHIRE CAPITAL, L.P.
By: Downsview Capital, its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Downsview Capital, Inc.
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MIDSUMMER INVESTMENT LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director of Midsummer Capital,
LLC, acting as investment advisor of
Midsummer Investment Ltd.
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