Re: Modification and Waiver Agreement
Exhibit
4.1
000
Xxxxxxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
|
Gentlemen:
This
letter agreement (the “Agreement”) sets forth the terms and conditions pursuant
to which RHP Master Fund, Ltd. (“RHP”) and LAP Summus Holdings, LLC (“LAP” and,
together with RHP, the “Buyers”) will waive certain of its rights under that
certain Securities Purchase Agreement dated as of November 18, 2005 (the
“Purchase Agreement”) by and among RHP, LAP and Oasys Mobile, Inc. (f/k/a
Summus, Inc.), a Delaware corporation (the “Company”), and all of the other
documents and instruments entered into in connection therewith, including
without limitation, the Debentures, the Warrants, the Security Agreement
and the
Registration Rights Agreement (collectively, the “Transaction
Documents”).
1. Waiver
of Event of Default.
Provided that the Company is in full compliance with all of its obligations
pursuant to the Transaction Documents, including without limitation all
agreements and covenants relating to the Company’s obligations to maintain the
registration and listing of its common stock and to maintain its corporate
existence, the Buyers hereby waive their right to cause the Company to redeem
the 6% Senior Secured Debentures dated November 18, 2005 issued to each of
the
Buyers (the “Debentures”) pursuant to Article I.A.7 of the Debentures in the
event that the Company engages in a transaction or series of related
transactions in which more than 50% or more of the voting power of the Company
is disposed of, provided that such transaction or transactions do not violate
or
require the Buyers’ consent under Article III.D of the Debentures (relating to
the sale of the Company’s assets outside the ordinary course of business) or
under Section 4.13 of the Purchase Agreement (relating to maintenance of
the
Company’s corporate existence). The foregoing waiver is strictly limited to
financing transactions which result in the disposition of more than 50% of
the
voting power of the Company (and which do not otherwise trigger a redemption
right pursuant to
Article
I.A or otherwise), and does not cover any other transaction or transactions
which would give rise to the Buyers’ right to cause a redemption of the
Debentures pursuant to Article I.A of the Debentures (including without
limitation other transactions covered by Article I.A.7, even if such other
transactions, in addition to triggering a redemption right for reasons other
than the disposition of more than 50% of the voting power of the Company,
result
in the disposition of more than 50% of the voting power of the Company).
For the
avoidance of doubt, the parties agree that, but for the waiver contemplated
hereby, Article I.A.7 would be triggered by the issuance of a number of voting
shares equal to or greater than 50% of the approximately 13,500,000 shares
of
Common Stock outstanding as of May 10, 2006, or approximately 6,750,000 shares
of Common Stock.
2. Company
Acknowledgement.
By
execution of this letter agreement, the Company acknowledges that,
notwithstanding the waiver by the Buyers set forth in Paragraph 1 hereof,
the
Company does not currently have any oral or written term sheets, contracts,
commitments, agreements, arrangements or understandings (collectively,
“Agreements”) with any party or parties involving any transaction or series of
transactions which, if consummated, would give rise to the Buyers’ right to
cause a redemption of the Debentures but for such waiver. In this regard,
the
Company does not have any Agreements with any third party investor, broker
or
agent regarding a transaction or series of related transactions that, if
consummated, would result in the disposition of more than 50% of the voting
power of the Company.
3. Issuance
of Amended A Warrants.
In
consideration for the Buyers providing the foregoing waiver to the Company,
each
of the Buyers will be issued an amended A Warrant in the form attached hereto
as
Exhibit
A
(with a
Purchase Price of $1.10 and an increase in the number of Units underlying
each A
Warrant to 1,400,000 Units). The shares of Common Stock issuable upon exercise
of the amended A Warrants will be Registrable Securities (as defined in the
Registration Rights Agreement dated as of November 18, 2005 by and among
the
Company and the Buyers).
4. Equal
Treatment of Buyers.
No
consideration shall be offered or paid to any person to amend or consent
to a
waiver or modification of any provision of this Agreement or any of the
Transaction Documents unless the same consideration also is offered to all
the
parties to this Agreement and the other Transaction Documents. The Company
shall
not purchase or redeem, or offer to purchase or redeem, from any Buyer any
Debentures, Warrants or shares of Common Stock issuable upon conversion of
the
Debentures or exercise of the Warrants, without offering to purchase or redeem
Debentures, Warrants or Common Stock from all Buyers on the same terms and
conditions.
5. Independent
Nature of Buyers’ Obligations.
(a) The
Company acknowledges that the obligations of the Buyers under this Agreement
and
the Transactions Documents are several and not joint, and no Buyer shall
be
responsible in any way for the performance of the obligations of any other
Buyer
under this Agreement or the Transaction Documents. The decision of each of
the
Buyers to this Agreement has been made by each Buyer independently of any
other
Buyer and independently of
any
information, materials, statements or opinions as to the business, affairs,
operations, assets, properties, liabilities, results of operations, condition
(financial or otherwise) or prospects of the Company which may have made
or
given by any other Buyer or by any agent or employee of any other Buyer and,
as
between the Buyers, no Buyer or any of its agents or employees shall have
any
liability to any other Buyer relating to or arising from any such information,
materials, statements or opinions. The Company further acknowledges that
nothing
contained in this Agreement or in the Transaction Documents, and no action
taken
by the Buyers pursuant hereto or thereto, shall be deemed to constitute the
Buyers as a partnership, an association, a joint venture or any other kind
of
entity, or create a presumption that the Buyers are in any way acting in
concert
or as a group with respect to such obligations or the transactions contemplated
hereby. Each of the Buyers shall be entitled to independently protect and
enforce its rights, including without limitation, the rights arising out
of this
Agreement or out of the Transaction Documents, and it shall not be necessary
for
any Buyer to be joined as an additional party in any proceeding for such
purpose.
(b) The
Buyers have been represented by their own respective separate legal counsel
in
their review and negotiation of this Agreement and the amended A Warrants.
For
reasons of administrative convenience only, at the request of the Company,
the
Buyers and their respective counsel have chosen to communicate with the Company
through Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, counsel to one of the
Buyers. Such counsel does not represent any of the other Buyers and each
other
Buyer has retained its own legal counsel in connection with the negotiation
and
review of this Agreement and the amended A Warrants. Also for reasons of
administrative convenience only, the Company has elected to provide the Buyers
with this Agreement for the convenience of the Company and not because it
was
required or requested to do so by the Buyers. The Company acknowledges that
such
procedure with respect to this Agreement in no way creates a presumption
that
the Buyers are in any way acting in concert or as a group with respect to
this
Agreement or the transactions contemplated hereby.
6. Status
of Transaction Documents.
Other
than as specifically set forth herein, all of the Transaction Documents shall
remain in full force and effect and shall not be affected by this
Agreement.
[Signature
Page Follows]
Please
indicate your agreement with the foregoing by signing this Agreement where
indicated and returning it to the undersigned.
Sincerely,
|
|
RHP
MASTER FUND, LTD.
By:
Rock Hill Investment Management, L.P.
By:
RHP General Partner, LLC
|
|
By:
/s/ Xxxxx X. Xxxxx
|
|
Xxxxx
X. Xxxxx
|
|
Managing
Partner
|
|
LAP
SUMMUS HOLDINGS, LLC
|
|
By:
/s/ Xxxxx X. Xxxxxxx
|
|
Xxxxx
X. Xxxxxxx
|
|
Managing
Partner
|
ACKNOWLEDGED
AND AGREED:
By:
/s/ Xxxx X.
Ban
Xxxx
X.
Ban
Chief
Executive Officer