EXHIBIT 4.6
WAIVER OF CONVERSION RATIO ADJUSTMENT RIGHT
THIS WAIVER AGREEMENT, dated as of May 5, 1998, is by and among Xxxxxx
Corporation, a Washington corporation (the "Company"), Xxxxxxx Special
Situations Fund, L.P. and Xxxxxxx Alpha Fund, L.P. (together, the "Investors")
and Xxxxxxx Capital Management, Inc. ("Xxxxxxx"). Capitalized terms used herein
but not otherwise defined shall have the meanings ascribed to such terms in the
Xxxxxx Corporation Certificate of Designation of Series A Cumulative Convertible
Preferred Stock Setting Forth the Powers, Preferences, Rights, Qualifications,
Limitations and Restrictions of Such Series of Preferred Stock (the
"Certification of Designation").
WHEREAS, the Company has issued 3,000,000 shares of common stock of the
Company, par value $0.01 per share (the "Common Stock") at a price per share of
$0.125 to one of the Investors, Xxxxxxx Special Situations Fund, L.P., in
connection with the Subscription Agreement dated April 10, 1998;
NOW, THEREFORE, in consideration of this issuance and notwithstanding the
Conversion Ratio adjustment rights with respect to the Series A Preferred Stock
set forth in Section 9(g) of the Certificate of Designation, the Investors
hereby waive, for themselves and on behalf of any permitted transferees or
assignees of the Series A Preferred Stock (and any other holder of the Series A
Preferred Stock, as a condition to being a permitted transferee or assignee
thereof, upon such transfer or assignment agrees to waive) any right of any such
holder to cause the Company to adjust, or to benefit from an adjustment to, the
Conversion Ratio as a result of the Company's issuance of 3,000,000 shares of
Common Stock for a consideration per share less than the Adjustment Trigger
Price.
AND, FURTHERMORE, in consideration of this issuance and notwithstanding the
exercise price adjustment rights with respect to the Warrant Shares set forth in
Section 7 of the Warrant Agreement dated as of June 12, 1996 between the Company
and Xxxxxxx, Xxxxxxx hereby waives, for itself and on behalf of any permitted
transferees or assignees of the Warrant Shares (and any other holder of the
Warrant Shares, as a condition to being a permitted transferee or assignee
thereof, upon such transfer or assignment agrees to waive) any right of any such
holder to cause the Company to adjust, or to benefit from an adjustment to, the
exercise price as a result of the Company's issuance of 3,000,000 shares of
Common Stock for a consideration per share less than the Adjustment Trigger
Price.
INVESTORS COMPANY
XXXXXXX SPECIAL XXXXXX CORPORATION
SITUATIONS FUND, L.P.
/s/Xxx X. Xxxxxx /s/Xxxx X. World
______________________________ _________________________________
Xxx X. Xxxxxx, General Partner Xxxx X. World, Executive Vice
President and General Manager
XXXXXXX ALPHA FUND, X.X. XXXXXXX CAPITAL MANAGEMENT, INC.
/s/Xxx X. Xxxxxx /s/Xxxxx X. XxXxxxxxxx
______________________________ _________________________________
Xxx X. Xxxxxx, General Partner Xxxxx X. XxXxxxxxxx, Co-President
