WAIVER AGREEMENT AND AMENDMENT
This
Waiver Agreement, Consent and Amendment (the “Waiver”) is made as of October 3,
2006, by and among Dolce Ventures, Inc., a Utah corporation (the “Company”),
Vision Opportunity Master Fund, Ltd., and each of the other parties set forth
on
the signature page hereto (collectively, the “Purchasers”).
Recitals
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A.
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On
September 7, 2006, the Company and the Purchasers entered into a
Series B
Convertible Preferred Stock Purchase Agreement (the “Stock Purchase
Agreement”), Section 1.4 of which provides that the Company may consummate
an Additional Financing for up to $5,923,200, which closing(s) shall
occur
no later than October 3, 2006;
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B.
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In
connection with the Stock Purchase Agreement, on September 7, 2006,
the
Company and the Purchasers entered into a Registration Rights Agreement
(the “Registration Rights Agreement”), pursuant to Section 2 of which the
Company is required to file with the Securities and Exchange Commission,
on or prior to October 10, 2006, a “resale” Registration Statement (the
“Registration Statement”) providing for the resale of all Registrable
Securities for an offering to be made on a continuous basis pursuant
to
Rule 415, and pursuant to Section 7(e) of which the Company is required
to
pay certain liquidated damages to the Purchasers if the Company shall
fail
to file such Registration Statement on or prior to the Filing Date
(as
defined in the Registration Rights Agreement), or if the Registration
Statement shall have failed to be declared effective by the Securities
and
Exchange Commission on or prior to the Effective Date (as defined
in the
Registration Rights Agreement), until such failures shall have been
cured;
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C.
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Each
Purchaser desires to waive the application of, and such Purchaser’s rights
under, the foregoing provisions of the Stock Purchase Agreement and
the
Registration Rights Agreement;
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D.
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In
connection with the consummation of an additional financing of the
Company, the parties hereto have agreed to amend the Stock Purchase
Agreement and the Registration Rights Agreement as hereinafter set
forth;
and
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NOW,
THEREFORE, in consideration of the mutual terms, conditions and other agreements
set forth herein, the parties hereto hereby agree as follows:
Section
1. Waiver. Each
Purchaser hereby waives the application of, and such Purchaser’s rights under,
(i) Section 1.4 of the Stock Purchase Agreement, which provides that the Company
may consummate an Additional Financing for up to $5,923,200, which closing(s)
shall occur no later than October 3, 2006, (ii) Section 2 of the Registration
Rights Agreement, which provides that, on or prior to the Filing Date, the
Company file with the Securities and Exchange Commission a “resale” Registration
Statement providing for the resale of all Registrable Securities for an offering
to be made on a continuous basis pursuant to Rule 415 (the “Registration
Statement”), and (iii) Section 7(e) of the Registration Rights Agreement, which
provides that, among other things, that if the Company shall fail to file the
Registration Statement on or prior to the Filing Date (the “Event”), the Company
shall pay certain liquidated damages to the Holders until the Event is
cured.
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Section
2. Amendment to the Stock Purchase Agreement.
The
parties agree that Section 1.4 of the Stock Purchase Agreement is amended to
read in its entirety as follows:
“Section
1.4. Closing.
The
closing of the purchase and sale of the Preferred Shares and the Warrants to
be
acquired by the Purchasers from the Company under this Agreement shall take
place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“KL”),
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the “Closing”)
at
10:00 a.m., New York time on or before September 7, 2006; provided,
that
all of the conditions set forth in Article IV hereof and applicable to the
Closing shall have been fulfilled or waived in accordance herewith (the
"Closing
Date").
The
Purchasers acknowledge and agree that the Company may consummate the sale of
additional Preferred Shares and Warrants to other purchasers, on terms
substantially similar to the terms of this Agreement and the other Transaction
Documents (as defined in Section 2.1(b) hereof), which closing(s) shall occur
no
later than October 20, 2006, for an aggregate purchase price of up to
$11,123,200 and a per share purchase price of $2.74 (an “Additional
Series B Financing”).
Subject to the terms and conditions of this Agreement, at the Closing the
Company shall deliver or cause to be delivered to each Purchaser (x) a
certificate for the number of Preferred Shares set forth opposite the name
of
such Purchaser on Exhibit
A
hereto,
(y) its Warrants to purchase such number of shares of Common Stock as is set
forth opposite the name of such Purchaser on Exhibit
A
attached
hereto and (z) any other documents required to be delivered pursuant to Article
IV hereof. At the Closing, each Purchaser shall direct that KL, as escrow agent,
deliver its Purchase Price by wire transfer to an account designated by the
Company. In addition, the parties acknowledge that Five Hundred Thousand Dollars
($500,000) of the Purchase Price funded on the Closing Date shall be deposited
in a separate escrow account with a separate escrow agent to be used by the
Company in connection with investor and public relations in accordance with
Section 3.19 hereof.”
Section
3. Amendment to the Registration Rights Agreement.
A.
The
parties agree that definitions of “Filing Date” and “Effective Date” as set
forth in Section 1 of the Registration Rights Agreement are amended to read
in
their entirety as follows:
"Filing
Date"
means
the fiftieth (50th)
day
following the Closing Date;
provided that,
if the
Filing Date falls on a Saturday,
Sunday or any other day which shall be a legal holiday or a day on which the
Commission is authorized or required by law or other government actions to
close, the Filing Date shall be the following Business Day.”
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"Effectiveness
Date"
means
with respect to the Registration Statement the earlier of (A) the one hundred
fortieth (140th)
day
following the Closing Date (or in the event the Registration Statement receives
a “full review” by the Commission, the two hundredth (200th)
day
following the Closing Date) or (B) the
date
which is within three (3) Business Days after the date on which the Commission
informs the Company that (i) the Commission will not review the Registration
Statement or (ii) the
Company may request the acceleration of the effectiveness of the Registration
Statement and the Company makes such request; provided that,
if the
Effectiveness Date falls on a Saturday,
Sunday or any other day which shall be a legal holiday or a day on which the
Commission is authorized or required by law or other government actions to
close, the Effectiveness Date shall be the following Business Day.
B.
The
parties agree that Schedule II to the Registration Rights Agreement is amended
to read in its entirety as set forth in Exhibit A hereto.
Section
4. Effect on Transaction Documents.
Except
as expressly set forth above, all of the terms and conditions of the Transaction
Documents and any agreements, documents and instruments signed by the Company
and any Purchaser in connection therewith shall continue in full force and
effect after the execution of this Waiver and shall not be in any way changed,
modified or superseded by the terms set forth herein.
Section
5. Miscellaneous.
A.
Amendments and Waivers.
The
provisions of this Waiver, including the provisions of this sentence, may not
be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and the Holders of a majority of the Registrable
Securities outstanding.
B.
Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Stock Purchase
Agreement Agreement.
C.
Successors and Assigns.
This
Waiver shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties.
D.
Execution and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement and shall become effective when
counterparts have been signed by each party and delivered to the other parties
hereto, it being understood that all parties need not sign the same counterpart.
In the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or
on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
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E.
Governing Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined in accordance with the provisions of
the
Stock Purchase Agreement Agreement.
F.
Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
G.
Headings.
The
headings in this Agreement are for convenience only, do not constitute a part
of
the Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties have executed and delivered this Waiver Agreement
and Amendment as of the date first written above.
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DOLCE
VENTURES, INC.
By:
Name:
Title:
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| PURCHASERS: | |
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By:
Name:
Title:
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Exhibit
A
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