EXHIBIT 10.6
XXXXXXXXX WIRELESS
00 Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
000-000-0000
Effective as of June 29, 2001
New Millennium Capital Partners II, LLC
AJW Partners, LLC
Equilibrium Equity, LLC
c/o The N.I.R. Group, LLC
000 Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx, Xxx Xxxx 00000
Re: Xxxxxxxxx Wireless (the "Company") -
Amendment of Outstanding Debentures and Warrants
Ladies and Gentlemen:
This letter will set forth the agreement of the parties hereto to (i)
amend the conversion price of certain convertible debentures which are
convertible into the Company's common stock, par value $.001 per share ("Common
Stock") originally issued by the Company to the investors listed in the
signature pages hereto (collectively, the "Investors") in April 2000, August
2000, January 2001 and March 2001, respectively (collectively, the
"Debentures"), and (ii) amend the exercise price of common stock purchase
warrants issued to the Investors upon issuance of the Debentures (collectively,
the "Warrants").
By execution hereof, and in consideration for the investment by AJW
Partners, LLC and New Millennium Capital Partners II, LLC pursuant to that
certain Securities Purchase Agreement of even date herewith (the "Purchase
Agreement"), the parties agree that:
1. The conversion price of each of the Debentures shall be amended as
of the effective date hereof to be equal to the lesser of (i) $.10 and (ii) the
Variable Conversion Price (as defined in the convertible debentures issued in
connection with the Purchase Agreement, or the "June Debentures");
2. The exercise price of each of the Warrants shall be amended as of
the effective date hereof to be equal to the lesser of (i) $.0584 and (ii) the
average of the lowest three (3) Trading Prices (as defined in the stock purchase
warrants issued pursuant to the Purchase Agreement) during the twenty (20)
Trading Days (as defined in the stock purchase warrants issued pursuant to the
Purchase Agreement, or the "June Warrants") immediately prior to the exercise
thereof;
3. Neither the issuance of the June Warrants, the June Debentures
and/or the shares of Common Stock underlying the June Warrants and June
Debentures, nor the amendments to the Debentures and Warrants contained in this
agreement, shall be considered dilutive issuances under the Warrants and the
Debentures or under any and all other debentures and warrants issued by the
Company to any Investor prior to the date of this letter agreement, and neither
shall trigger any adjustment in the exercise or conversion price of and number
of shares underlying any such debenture or warrant other than the adjustments
specifically described in paragraphs 1 and 2 above; and
4. All other provisions of the Debentures and the Warrants shall remain
in full force and effect.
The parties acknowledge and agree that the Company may be required to
file post-effective amendments and/or prospectus supplements to effective
registration statements relating to the securities of the Company to disclose
the amendments set forth in this letter agreement, but that the Company will
continue to comply with its obligations to maintain the effectiveness of any of
such registration statements and the Investors will continue to comply with
their prospectus delivery obligations.
The parties shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other parties hereto
may reasonably request in order to carry out the intent and accomplish the
purposes of this letter agreement, including without limitation the surrender of
the existing Debentures and Warrants and the issuance of amended Debentures and
Warrants.
|Signature Page Follows|
Please signify your agreement with the foregoing by signing a copy of
this letter where indicated and returning it to the undersigned.
Sincerely,
XXXXXXXXX WIRELESS
/s/ Xxxx Xxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxx
Chairman and Chief Executive Officer
ACCEPTED AND AGREED:
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: FIRST STREET MANAGER II, LLC, its Manager
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxx
Manager
AJW PARTNERS, LLC
By: SMS GROUP, LLC, its Manager
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx
Manager
EQUILIBRIUM EQUITY, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx
Manager
