EIGHTH ADDITIONAL ISSUANCE AGREEMENT AND WAIVER
EXHIBIT
99.16
EIGHTH
ADDITIONAL ISSUANCE AGREEMENT
AND
WAIVER
This
Eighth Additional Issuance Agreement (this “Agreement”) is made pursuant
to that certain Securities Purchase Agreement, dated as of June 30, 2006, as
amended (the “Purchase Agreement”), by and between Arkados Group, Inc.
(formerly XXXXXX.XXX, Inc., the “Company”), Xxxxxxx Xxxxxxxx Family
Limited Partnership (“Typaldos LP”), Xxxxxxx Xxxxxxxx, individually
(“Typaldos”), Xxxxxxxxx Xxxxxxxx, individually (“K Typaldos”),
Xxxxxxx X. Xxxxxx (“Xxxxxx”) and Xxxx X. Xxxxxxxxx (“Xxxxxxxxx”) (each a “New
Purchaser” and collectively the “New Purchasers”), Bushido Capital
Master Fund, LP (“Bushido”), Xxxxxx Diversified Strategy Master Fund, LLC
– Series BUS (“Xxxxxx”) and Crucian Transition, Inc. (“Crucian”)
for the purchase of the Company’s 6% Secured Convertible Debenture due December
28, 2008 (the “Debenture”) and the Common Stock purchase warrant issued
in connection therewith (the “Warrant”). This Agreement is
dated as of the date it is executed by the
Company. Capitalized terms used and not otherwise defined
herein that are defined in the Purchase Agreement shall have the meanings given
such terms in the Purchase Agreement.
For
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
|
1.
|
Issuance
of New Debenture and New Warrants. The Company hereby agrees to issue
against payment to the New Purchasers (a) debentures of the Company
in the
aggregate principal amount of $610,000 in the amounts set forth on
the
signature page hereto, which debenture shall be in the form of Exhibit
A attached hereto (a “New Debentures”), (b) Warrants to
purchase an aggregate of up to 287,060 shares of Common Stock, which
warrant shall be in the form of Exhibit B attached hereto (the
“Long Term Warrants”) and (c) Warrants to purchase an aggregate of
up to 287,060 shares of Common Stock, which warrant shall be in the
form
of Exhibit C attached hereto (the “Short Term Warrants” and
together with the Long Term Warrant, the “New
Warrants”). The total purchase price to the New Purchaser
for the purchase of the New Debenture and the New Warrants is $610,000
(the “New Subscription Amount”). The Company shall
promptly deliver to the New Purchaser the New Debenture, the New
Warrants
and opinion of counsel required pursuant to Section 5. The
Company hereby acknowledges its receipt of the New Subscription Amounts
from each of the New Purchasers on the dates set forth on the signature
page hereto.
|
|
2.
|
Documents. The
rights and obligations of the New Purchasers and of the Company with
respect to the New Debentures, the New Warrants and the shares of
Common
Stock issuable under the New Debentures and New Warrants (the “New
Underlying Shares”) shall be identical in all respects to the rights
and obligations of such New Purchaser and of the Company with respect
to
the Debentures, the Warrants and the Underlying Shares issued and
issuable
pursuant to the Purchase Agreement. Any rights of a New
Purchaser or covenants of the Company which are dependant on such
New
Purchaser holding securities of the Company or which are determined
in
magnitude by such New Purchaser’s purchase of securities pursuant to the
Purchase Agreement shall be deemed to include any securities purchased
or
issuable hereunder.
|
1
|
|
The
Purchase Agreement
is hereby amended so that the term “Debentures” includes the New
Debentures issued hereunder and “Underlying Shares” includes the New
Underlying Shares. The Registration Rights Agreement entered
into in connection with the Purchase Agreement is hereby amended
so that
the term “Registrable Securities” includes in the calculation thereof the
New Underlying Shares. The Security Agreement is hereby amended
so that the term “Debentures” includes the New Debentures. The
Inter-Creditor and Waiver Agreement, dated as of June 30, 2006, is
hereby
amended so that the term “New Creditors” includes the New Purchaser and
the term “New Debentures” (as defined in the Inter-Creditor and Waiver
Agreement) includes the New Debentures (as defined
herein).
|
|
3.
|
Representations
and Warranties of the Company. The Company hereby makes to
the New Purchasers the following representations and
warranties:
|
(a) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by
this
Agreement and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Company and no further action is required by the Company, its board of directors
or its stockholders in connection therewith other than in connection with the
Required Approvals. This Agreement has been duly executed by the
Company and, when delivered in accordance with the terms hereof, will constitute
the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium
and
other laws of general application affecting enforcement of creditors’ rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar
as
indemnification and contribution provisions may be limited by applicable
law.
(b) No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not: (i) conflict with or violate any
provision of the Company’s certificate or articles of incorporation, bylaws or
other organizational or charter documents; or (ii) conflict with, or constitute
a default (or an event that with notice or lapse of time or both would become
a
default) under, result in the creation of any Lien (except as contemplated
by
the Security Documents) upon any of the properties or assets of the Company
in
connection with, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both)
of,
any material agreement, credit facility, debt or other material instrument
(evidencing Company debt or otherwise) or other material understanding to which
such Company is a party or by which any property or asset of the Company is
bound or affected; or (iii) subject to the Required Approvals, conflict with
or
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other
2
restriction
of any court or governmental authority to which the Company is subject
(including federal and state securities laws and regulations), or by which
any
property or asset of the Company is bound or affected, except, in the case
of
each of clauses (ii) and (iii), such as could not have or reasonably be expected
to result in a Material Adverse Effect.
(c) Issuance
of the New Debentures. The New Debentures and New Warrants are
duly authorized and, upon the execution of this Agreement by a New Purchaser,
will be duly and validly issued, fully paid and nonassessable, free and clear
of
all Liens imposed by the Company other than restrictions on transfer provided
for in the Transaction Documents. The New Underlying Shares, when
issued in accordance with the terms of the New Debentures and New Warrants,
will
be validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company. The Company has reserved from its duly
authorized capital stock a number of shares of Common Stock for issuance of
the
New Underlying Shares at least equal to the Required Minimum on the date
hereof.
(d) Equal
Consideration. Except as set forth in this Agreement, no
consideration has been offered or paid to any person to amend or consent to
a
waiver, modification, forbearance or otherwise of any provision of any of the
Transaction Documents.
(e) Affirmation
of Prior Representations and Warranties. The Company hereby
represents and warrants to each New Purchaser that the Company’s representations
and warranties listed in Section 3.1 of the Purchase Agreement are true and
correct as of the date hereof, provided that the Company’s representation in
Section 3.1(h) of the Purchase Agreement is qualified by the Company’s late
filing of the 2006 Form 10-KSB on October 10, 2006.
|
4.
|
Representations
and Warranties of the New Purchaser. Each New Purchaser
hereby represents and warrants as of the date hereof to the Company
as
follows:
|
(a) Authority. The
execution, delivery and performance by such New Purchaser of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate or similar action on the part of such New Purchaser. This
Agreement has been duly executed by such New Purchaser and, when delivered
by
such Purchaser in accordance with the terms hereof, will constitute the valid
and legally binding obligation of such New Purchaser, enforceable against it
in
accordance with its terms, except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other
laws
of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
(b) Own
Account. Such New Purchaser (i) understands that the New
Debentures and New Warrants are “restricted securities” and have not been
3
registered
under the Securities Act or any applicable state securities law, (ii) is
acquiring the Additional Debenture and New Warrants as principal for its own
account and not with a view to or for distributing or reselling such Additional
Debentures or New Warrants or any part thereof in violation of the Securities
Act or any applicable state securities law, (iii) has no present intention
of
distributing any of such Securities in violation of the Securities Act or any
applicable state securities law and (iv) has no arrangement or understanding
with any other persons regarding the distribution of such New Debentures and
New
Warrants (this representation and warranty not limiting such New Purchaser’s
right to sell the New Underlying Shares pursuant to the Registration Statement
or otherwise in compliance with applicable federal and state securities laws)
in
violation of the Securities Act or any applicable state securities
law. Such New Purchaser is acquiring the Additional Debentures and
New Warrants hereunder in the ordinary course of its business. Such New
Purchaser does not have any agreement or understanding, directly or indirectly,
with any Person to distribute any of the New Debenture, New Warrants or New
Underlying Shares.
(c) Purchaser
Status. Such New Purchaser is an “accredited investor” as defined
in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities
Act. Such New Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(d) General
Solicitation. Such New Purchaser is not purchasing the New
Debenture or New Warrants as a result of any advertisement, article, notice
or
other communication regarding the New Debenture or New Warrants published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
(e) Affirmation
of Prior Representations and Warranties. Such New Purchaser
hereby represents and warrants to the Company that its representations and
warranties listed in Section 3.2 of the Purchase Agreement are true and correct
as of the date hereof.
|
5.
|
Delivery
of Opinion. Concurrently herewith, the Company shall
deliver to the New Purchasers an opinion of outside counsel regarding
this
Agreement and the issuance of the New Debentures and New Warrants
in form
and substance reasonably acceptable to the New
Purchasers.
|
|
6.
|
Public
Disclosure. The Company shall, as soon as practical, issue
a Current Report on Form 8-K, reasonably acceptable to the New Purchaser,
disclosing the material terms of the transactions contemplated hereby
and
attaching this Agreement as an exhibit thereto. The Company
shall consult with the New Purchasers in issuing any other press
releases
with respect to the transactions contemplated
hereby.
|
4
|
7.
|
Other
Purchaser Consent. The other Purchasers hereby consent to
the execution by the Company of this Agreement and the issuance of
the New
Debenture and New Warrants to the New
Purchasers.
|
|
8.
|
Effect
on Transaction Documents. Except as expressly set forth
above, all of the terms and conditions of the Transaction Documents
shall
continue in full force and effect after the execution of this Agreement
and shall not be in any way changed, modified or superseded by the
terms
set forth herein, including, but not limited to, any other obligations
the
Company may have to the New Purchaser under the Transaction
Documents. Notwithstanding the foregoing, this Agreement shall
be deemed for all purposes as an amendment to any Transaction Document
as
required to serve the purposes hereof, and in the event of any conflict
between the terms and provisions of the Debentures, the Registration
Rights Agreement or any other Transaction Document, on the one hand,
and
the terms and provisions of this Agreement, on the other hand, the
terms
and provisions of this Agreement shall
prevail.
|
|
9.
|
Expenses. The
Company agrees to pay to each New Purchaser upon demand any and all
reasonable out-of-pocket costs or expenses (including, without limitation,
reasonable legal fees and disbursements) incurred or sustained by
such New
Purchaser, in connection with the preparation of this Agreement and
related matters.
|
|
10.
|
Amendments
and Waivers. The provisions of this Agreement, 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 each New Purchaser.
|
|
11.
|
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
Purchase Agreement.
|
|
12.
|
Successors
and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each
of the
parties and shall inure to the benefit of each Purchaser. The Company
may
not assign (except by merger) its rights or obligations hereunder
without
the prior written consent of the New Purchaser of the then-outstanding
Securities. The New Purchaser may assign their rights hereunder
in the manner and to the Persons as permitted under the Purchase
Agreement.
|
|
13.
|
Execution
and Counterparts. This Agreement may be executed in two or
more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts
have been signed by each party and delivered to the other party,
it being
understood that both parties need not sign the same
counterpart. In the event that any signature is
|
5
|
|
delivered
by facsimile transmission or by e-mail delivery of a “.pdf” format data
file, such signature shall create a valid and binding obligation
of the
party executing (or on whose behalf such signature is executed) with
the
same force and effect as if such facsimile or “.pdf” signature page were
an original thereof.
|
|
14.
|
Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined
in
accordance with the provisions of the Purchase
Agreement.
|
|
15.
|
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.
|
|
16.
|
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]
6
Executed
the undersigned duly authorized representative of the Company:
By:
/s/ Xxxxxxx
Xxxx-Xxxxx Date: May 30, 2007
Name: Xxxxxxx
Xxxx-Xxxxx
Title: Chief
Financial Officer
Executed
the undersigned duly
authorized representative of Typaldos LP, Typaldos, K Typaldos, Sommer and
Xxxxxxxxx:
Xxxxxxx
Xxxxxxxx Family Limited Partnership
Signature
of Authorized signatory for Typaldos LP: /s/ Xxxxx
Tyaldos
Name
of
Authorized Signatory: Xxxxx
Xxxxxxxx
Title
of
Authorized Signatory: Managing
Partner
Principal
Amount of New Debenture: $380,000 (received May 9, 2007)
Long
Term
Warrants: 178,824
Short
Term Warrants: 178,824
Xxxxxxx
Xxxxxxxx
/s/
Xxxxxxx
Xxxxxxxx
Principal
Amount of New Debenture: $70,000 (in full satisfaction of consulting
fees due as of May 31, 2007)
Long
Term
Warrants: 32,941
Short
Term Warrants: 32,941
Xxxxxxx
Xxxxxxxx
/s/
Xxxxxxx
Xxxxxxxx
Principal
Amount of New Debenture: $115,000 (received April 20,
2007)
Long
Term
Warrants: 54,118
Short
Term Warrants: 54,118
[SIGNATURE
PAGES CONTINUE)
7
Xxxxxxx
X. Xxxxxx
/s/
Xxxxxxx X.
Xxxxxx
Principal
Amount of New Debenture: $27,000 (in satisfaction of $27,000 due to
Xxxxxx & Xxxxxxxxx LLP)
Long
Term
Warrants: 12,706
Short
Term Warrants: 12,706
Xxxx
X. Xxxxxxxxx
/s/
Xxxx X.
Xxxxxxxxx
Principal
Amount of New Debenture: $18,000 (in satisfaction of $18,000 due to
Xxxxxx & Xxxxxxxxx LLP)
Long
Term
Warrants: 8,471
Short
Term Warrants: 8,471
As
to
Section 1, Section 2 and Section 7 only:
Bushido
Capital Master Fund, LP
Signature
of Authorized Signatory of Bushido:
__________________________________________
Name
of
Authorized Signatory: Xxxxxx X.
Xxxxx
Title
of
Authorized Signatory: Partner, Bushido Capital Partners, Ltd., its General
Partner
Xxxxxx
Diversified Strategy Master Fund, LLC – Series BUS
Signature
of Authorized Signatory of Xxxxxx:
__________________________________________
Name
of
Authorized Signatory: Xxxxxx
Xxxxxxxx
Title
of
Authorized Signatory:
Attorney-In-Fact
Crucian
Transition, Inc.
Signature
of Authorized signatory for Crucian: /s/ Xxxxxxxx X.
Xxxxxx
Name
of
Authorized Signatory: Xxxxxxxx X.
Xxxxxx
Title
of
Authorized Signatory:
President
8
