WAIVER AND AMENDMENT AGREEMENT
EXHIBIT
10.45
This
WAIVER
AND AMENDMENT AGREEMENT
(the
“Agreement”)
is
made and effective as of April __, 2008 (the “Effective
Date”),
by
and among QPC Lasers, Inc., a Nevada corporation (the “Company”),
the
undersigned holders of the Company’s 10% Secured Convertible Debentures due
April 16, 2009, and warrants to acquire shares of the Company’s common stock
issued concurrently with such debentures (collectively, the “April
Creditors”),
and
the undersigned holders of the Company’s 10% Secured Convertible Debentures due
May 22, 2009, and warrants to acquire shares of the Company’s common stock
issued concurrently with such debentures (collectively, the “May
Creditors”)
who
are signatories hereto (the April Creditors and the May Creditors are herein
collectively referred to as the “Creditors”).
RECITALS
WHEREAS,
the April Creditors are parties to that certain Securities Purchase Agreement,
dated as of April 16, 2007, by and among the Company and each holder of the
Company’s 10% Secured Debentures due April 16, 2009 (collectively, the
“April
Debenture Holders”),
as
amended by that certain Inter-Creditor, Waiver and Amendment Agreement, dated
as
of May 22, 2007 (the “Inter-Creditor
Agreement”),
by
and among the Company, the April Debenture Holders and each holder
(collectively, the “May
Debenture Holders”)
of the
Company’s 10% Secured Convertible Debentures due May 22, 2009 (as amended, the
“April
2007 Purchase Agreement”),
and
are holders of those 10% Secured Convertible Debentures due April 16, 2009
(as
amended by the Inter-Creditor Agreement, the “April
2009 Debentures”)
in the
aggregate principal amount of $8,198,369.27 executed by the Company in favor
of
the April Debenture Holders.
WHEREAS,
the May Creditors are the parties to that certain Securities Purchase Agreement,
dated as of May 22, 2007 (the “May
2007 Purchase Agreement”),
by
and among the Company and the May Debenture Holders and are the holders of
those
10% Secured Convertible Debentures due May 22, 2009 (the “May
2009 Debentures”)
in the
aggregate principal amount of $10,554,500 executed by the Company in favor
of
the May Debenture Holders.
WHEREAS,
in connection with the financings completed in April and May, 2007, the Company
issued to the April Debenture Holders and the May Debenture Holders warrants
to
purchase shares of Company’s common stock, dated April 16, 2009 (the
“April
Warrants”)
and
May 22, 2007 (the “May
Warrants”),
respectively.
WHEREAS,
the Company is seeking to raise additional capital through the offer and sale
of
convertible notes and warrants [in the an aggregate principal amount of up
to
$3.5 million on substantially the terms set forth in the term sheet attached
hereto as Exhibit A] (the “Convertible
Note Financing”).
WHEREAS,
the parties hereto desire to enter into this Agreement to amend certain
provisions of the April 2007 Purchase Agreement, the April 2009 Debentures,
the
April Warrants, the May 2007 Purchase Agreement, the May 2009 Debentures, and
the May Warrants, and grant certain waivers under the April 2009 Debentures,
April Warrants, May 2009 Debentures and May Warrants on the terms set forth
herein to allow the Company to consummate the Convertible Note Financing.
WHEREAS,
each of the April 2007 Purchase Agreement and April 2009 Debentures, and the
May
2007 Purchase Agreement and May 2009 Debentures, may be amended by the April
Debenture Holders and May Debenture Holders holding at least 67% of the then
outstanding April 2009 Debentures and May 2009 Debentures, respectively.
WHEREAS,
the April Warrant and May Warrant may be amended by holders of at least 67%
of
the then outstanding April Warrants and May Warrants, respectively.
WHEREAS,
the April Creditors and the May Creditors constitute the holders of at least
67%
of the outstanding April 2009 Debentures and April Warrants and May 2009
Debentures and May Warrants, respectively.
NOW,
THEREFORE, in consideration of the mutual covenants herein, their respective
performances and benefits pertaining to the Indebtedness, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Incorporation
of Recitals.
The
Recitals are incorporated herein by reference.
2. Waiver
and Amendment to the April 2009Debentures.
2.1 Waivers.
(a) Each
April Creditor hereby consents to the Convertible Note Financing and, solely
in
connection with the Convertible Note Financing, each April Creditor hereby
waives the covenants set forth in Section 5(e)(i) and Section 5(e)(ii) of the
April 2009 Debentures and any and all Events of Default under Section 7 of
the
April 2009 Debentures.
(b) Each
April Creditor, solely in connection with the Convertible Note Financing, hereby
further waives any adjustments to the Conversion Price under Section 3(f)(i)
of
the April 2009 Debentures.
2.2 Amendment.
As of
the Effective Date, the April 2009 Debentures are hereby amended as follows:
(a) The
first
sentence of Section 3(f) of the April 2009 Debentures is hereby deleted in
its
entirety and replaced with the following sentence:
“The
Conversion Price shall be subject to adjustment from time to time as provided
in
this Section 3(f); provided, however, that no adjustment to the Conversion
Price
shall be made under Section 3(f)(i) or Section 3(f)(ii) below if Holders of
at
least 67% in principal amount of the then outstanding Debentures agree in
writing to waive any such adjustment.”
3. Waivers
to April 2007 Purchase Agreement.
Solely
in connection with the Convertible Note Financing, each April Creditor hereby
waives the covenants and restrictions set forth in each of Section 4(e)(i),
entitled “Lock up of Issuance of Securities,” and Section 4(e)(ii), entitled
“Capital Raising Limitations,” of the April 2007 Purchase Agreement.
2
4. Waiver
and Amendment to April Warrants.
4.1 Waivers.
Each
April Creditor, solely in connection with the Convertible Note Financing, hereby
waives any adjustments to the Exercise Price under Section 5(f) of the April
Warrants.
4.2 Amendment.
As of
the Effective Date, the April Warrants are hereby amended as follows:
The
following sentence is hereby added immediately after the last sentence of
Section 5(f) of the April Warrant:
“In
addition, notwithstanding the above, there shall be no MFN Adjustment to the
Exercise Price based upon any Dilutive Issuances if Holders of at least 67%
in
principal amount of the then outstanding Waiver agree in writing to waive any
such adjustment.”
5. Waiver
and Amendment to the May 2009 Debentures.
5.1 Waiver.
(a) Each
May
Creditor hereby consents to the Convertible Note Financing, and solely in
connection with the Convertible Note Financing, each May Creditor hereby waives
the covenants set forth in Section 5(e)(i) and Section 5(e)(ii) of the May
2009
Debentures and any and all Events of Default under Xxxxxxx 0 xx xxx Xxx 0000
Xxxxxxxxxx.
(x) Each
May
Creditor, solely in connection with the Convertible Note Financing, hereby
further waives any adjustments to the Conversion Price under Section 3(f)(i)
of
the May 2009 Debentures.
5.2 Amendment.
As of
the Effective Date, the May 2009 Debentures are hereby amended as follows:
(a) The
first
sentence of Section 3(f) of the May 2009 Debentures is hereby deleted in its
entirety and replaced with the following sentence:
“The
Conversion Price shall be subject to adjustment from time to time as provided
in
this Section 3(f); provided, however, that no adjustment to the Conversion
Price
shall be made under Section 3(f)(i) or Section 3(f)(ii) below if Holders of
at
least 67% in principal amount of the then outstanding Debentures agree in
writing to waive any such adjustment.”
6. Waivers
to May 2007 Purchase Agreement.
Solely
in connection with the Convertible Note Financing, each May Creditor hereby
waives the covenants and restrictions set forth in each of Section 4(e)(i),
entitled “Lock up of Issuance of Securities,” and Section 4(e)(ii), entitled
“Capital Raising Limitations,” of the May 2007 Purchase Agreement.
3
7. Waiver
and Amendment to May Warrants.
7.1 Waivers.
Each
May Creditor, solely in connection with the Convertible Note Financing, hereby
waives any adjustments to the Exercise Price under Section 5(f) of the May
Warrants.
7.2 Amendment.
As of
the Effective Date, the May Warrants are hereby amended as follows:
The
following sentence is hereby added immediately after the last sentence of
Section 5(f) of the May Warrant:
“In
addition, notwithstanding the above, there shall be no MFN Adjustment to the
Exercise Price based upon any Dilutive Issuances if Holders of at least 67%
in
principal amount of the then outstanding Waiver agree in writing to waive any
such adjustment.”
8. Miscellaneous.
8.1 Effect
of Amendment.
This
Agreement shall constitute an amendment to the April 2007 Purchase Agreement,
the April 2009 Debentures, the May 2007 Purchase Agreement and the May 2009
Debentures. Except as set forth expressly herein, all terms of the April 2007
Purchase Agreement, the April 2009 Debentures, the May 2007 Purchase Agreement
and the May 2009 Debentures, as amended hereby, shall be and remain in full
force and effect.
8.2 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
8.3 Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one
and
the same agreement.
8.4 Binding
Nature.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their respective successors, successors-in-titles, and assigns.
8.5 Entire
Agreement.
This
Agreement reflect the entire agreement between the parties hereto with respect
to the matters set forth herein and therein and supersede any prior agreements,
commitments, drafts, communication, discussions and understandings, oral or
written, with respect thereto.
8.6 Further
Assurances.
Each
party to this Agreement agrees to execute further instruments as may be
necessary or desirable to carry out this Agreement, provided the party
requesting such further action shall bear all related costs and
expenses.
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[SIGNATURE
PAGE TO QPC WAIVER AND AMENDMENT AGREEMENT]
IN
WITNESS WHEREOF, this Agreement has been duly executed by the Creditors as
of
the day and year first written above.
COMPANY:
QPC
LASERS, INC.
_________________________
By:
Title:
Address
for Notice:
_________________________
_________________________
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE TO QPC
APRIL
CREDITORS:
Print
Name: ___________________________
By:
_________________________________
Name:
Title:
Address
for Notice:
_________________________
_________________________
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE TO QPC
MAY
CREDITORS:
Print
Name: ___________________________
By:
_________________________________
Name:
Title:
Address
for Notice:
_________________________
_________________________
