WAIVER AND AGREEMENT TO CONVERT
THIS WAIVER AND AGREEMENT TO CONVERT (the "Agreement"), dated as of May
__, 2006, by and between NetFabric Holdings, Inc. (the "Company"), a Delaware
corporation having its principal place of business at 0 Xxxxxxx Xxxxx, Xxxxxxxx,
Xxx Xxxxxx 00000, and Macrocom Investors, LLC, having offices at 0000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Holder").
NOW, THEREFORE, the Company and Holder, intending to be legally bound
hereby, and for good and valuable consideration, hereby agree as follows:
1. EARLY CONVERSION. The Holder hereby agrees immediately to convert a
note issued by the Company in the principal amount of $500,000 and due on
October 10, 2006 (the "Note"), including all interest accrued thereon, into one
million (1,000,000) shares of restricted common stock of the Company.
2. WAIVER AND MUTUAL RELEASE. The Holder and the Company agree to waive
and release each other from any and all claims, without further recourse and
irrespective of cause, inclusive of any defaults, breaches and resulting
penalties, in connection with the Note and all other agreements executed to date
between the Holder and the Company.
3. STOCK ISSUANCE. In exchange for the waiver and the early conversion the
Company agrees to issue immediately to the Holder one million and five hundred
thousand (1,500,000) additional shares of restricted common stock.
4. PIGGYBACK REGISTRATION RIGHTS. The shares issued under this Agreement
shall have piggyback registration rights until they are eligible for resale
under Rule 144. This right shall not apply to registration statements made on
Form S-8 or Form S-4 or where the party holding the demand registration right
objects to the inclusion of these shares in just registration statement.
5. COMPLIANCE REPRESENTATION. The Company hereby represents and warrants
that it is in compliance with all applicable reporting obligations under the
relevant federal securities laws and regulations (the "Securities Laws") and
that, by entering into this Agreement, the Company has not violated such
Securities Laws.
6. GENERAL PROVISIONS.
(a) The Agreement shall be binding upon, and inure to the benefit of
the parties and their respective successors and permitted assigns.
(b) The Agreement shall be governed by and construed under the laws
of the State of New York (without giving effect to its principles of
conflict of laws).
(c) In case any one or more of the provisions or any part of a
provision contained in its Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall be deemed not to affect
any other provision or part of a provision of its Agreement, but this
Agreement shall be reformed and construed in such jurisdiction as if such
provision or part of a provision held to be invalid, illegal or
unenforceable had never been contained herein and such provision or part
be reformed so that it would be valid, legal and enforceable in such
jurisdiction to the maximum extent possible.
(d) The Agreement contains the entire agreement between the with
respect to the subject matter thereof. The Agreement may not be amended,
waived, changed, modified or discharged except by an instrument in writing
executed by or on behalf of the party against whom any amendment, waiver,
change, modification or discharge is sought.
(e) All notices, requests, demands and other communications
hereunder shall be in writing and shall be personally delivered or sent by
expedited overnight courier service to the addresses indicated in the
recitals and/or to such other persons and addresses as any party shall
have specified in writing to the other.
(f) Any waiver of any breach of any provision of the Agreement shall
not operate as a waiver of any other breach of such provision or any other
provision of the Agreement, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision
hereof. Each of the parties hereto agrees to execute all such further
instruments and documents and to take all such further action as the other
party may reasonably request in order to effectuate the terms and purposes
of tits Agreement.
(g) The section headings contained in the Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of
the date first written above.
NETFABRIC HOLDINGS, INC.
By:
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Name:
Title:
MACROCOM INVESTORS, LLC
By:
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Name:
Title:
