WAIVER AND AMENDMENT AGREEMENT
Exhibit 4.5
This
Waiver and Amendment Agreement (the “Agreement”),
dated
as of February 12, 2007, is by and among Telanetix, Inc., a Delaware corporation
(the “Company”)
and
the investors signatory hereto (each, a “Purchaser”
and
collectively, the “Purchasers”).
WHEREAS,
the Company and the Purchasers entered into a Securities Purchase Agreement
dated as of December 28, 2006 (the “Purchase
Agreement”);
WHEREAS,
the Purchasers have been advised that the Company has entered into a securities
purchase agreement dated on or about the date hereof, in the form previously
delivered to the Purchasers, for the issuance of up to $1,550,000 in principal
amount of debentures and warrants to purchase shares of Common Stock, on
substantially the same terms and conditions as the Purchase Agreement (the
“February
Debenture and Warrant Transaction”);
WHEREAS,
the Company and the Purchasers have agreed to amend and waive certain provisions
of the Transaction Documents (as defined in the Purchase Agreement) as set
forth
below.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Purchasers and the Company agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1. Definitions.
Capitalized terms not defined in this Agreement shall have the meanings ascribed
to such terms in the Purchase Agreement (as defined in the Registration Rights
Agreement).
ARTICLE
II
AMENDMENTS,
WAIVERS
OTHER
COVENANTS
Section
2.1. Amendment
to the Registration Rights Agreement.
The
definition of “Filing Date” in Section 1 of the Registration Rights Agreement is
hereby deleted in its entirety and replaced with the following:
“Filing
Date”
means,
with respect to the initial Registration Statement required hereunder, the
50th
calendar
day following the date hereof and, with respect to any additional Registration
Statements which may be required pursuant to Section 3(c), the 30th
calendar
day following the date on which the Company first knows, or reasonably should
have known, that such additional Registration Statement is required
hereunder.”
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Section
2.2 Waivers.
Solely
with respect to the issuance of debentures and warrants pursuant to the February
Debenture and Warrant Transaction, each of the undersigned Purchasers hereby
waives (i) Section 4.12 of the Purchase Agreement regarding the participation
in
future financings, (ii) Section 4.13 of the Purchase Agreement regarding
subsequent equity sales and (iii) the prohibition on incurring additional
indebtedness set forth in Section 7(a) of the Debentures, provided the February
Debenture and Warrant Transaction is consummated on or before February 14,
2007.
Section
2.3 Filing
of Form 8-K.
Within
2 Trading Days of the date hereof, the Company shall file a Current Report
on
Form 8-K, reasonably acceptable to each Purchaser disclosing the material terms
of the transactions contemplated hereby, which shall include this Agreement
as
an attachment thereto.
Section
2.4 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 Purchasers under the Transaction Documents.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.1. Representations
and Warranties of the Company.
The
Company hereby make the representations and warranties set forth below to the
Purchasers that as of the date of its execution of this Agreement:
(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 it of the transactions contemplated hereby have been duly authorized by
all
necessary action on the part of such Company and no further action is required
by such Company, its board of directors or its stockholders in connection
therewith. 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 upon any of the properties or assets of the Company,
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 the Company
is a party or by which any property or asset of the Company is bound or
affected, or (iii) conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other 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.
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Section
3.2. Representations
and Warranties of the Purchasers.
Each
Purchaser, severally and not jointly with the other Purchasers, hereby makes
the
representations and warranties set forth below to the Company that as of the
date of its execution of this Agreement:
(a) Due
Authorization.
Such
Purchaser represents and warrants that (i) the execution and delivery of this
Agreement by it and the consummation by it of the transactions contemplated
hereby have been duly authorized by all necessary action on its behalf and
(ii)
this Agreement has been duly executed and delivered by such Purchaser and
constitutes the valid and binding obligation of such Purchaser, enforceable
against it in accordance with its terms except (x) as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors’ rights generally, (y) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies and
(z)
insofar as indemnification and contribution provisions may be limited by
applicable law.
ARTICLE
IV
MISCELLANEOUS
Section
4.1. Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be made in accordance with the provisions of the
Purchase Agreement.
Section
4.2. Execution.
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 delivered by facsimile
transmission, 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 signature page were an original
thereof.
Section
4.3. 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 Purchaser.
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Section
4.4 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 all of the Purchasers
of the then-outstanding Securities. Each Purchaser may assign their respective
rights hereunder in the manner and to the Persons as permitted under the
applicable Purchase Agreement.
Section
4.5 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.
Section
4.6 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.
Section
4.7. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined pursuant to the Governing Law provision
of
the Purchase Agreement.
Section
4.8. Entire
Agreement.
The
Agreement, together with the exhibits and schedules thereto, contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
Section
4.9 Independent
Nature of Purchasers’ Obligations and Rights.
The
obligations of each Purchaser hereunder are several and not joint with the
obligations of any other Purchasers hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Purchaser pursuant
hereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert with respect
to
such obligations or the transactions contemplated by this Agreement. Each
Purchaser shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
|
TELANETIX,
INC.
|
|
By:
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Chief Executive Officer
|
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[PURCHASER
SIGNATURE PAGES TO TNXI
WAIVER
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name
of
Holder: Enable
Growth Partners LP
Signature
of Authorized Signatory of Holder:
/s/Xxxxxxx
X'Xxxx
Name
of
Authorized Signatory: Xxxxxxx
X'Xxxx
Title
of
Authorized Signatory: Principal
and Portfolio Manager
[SIGNATURE
PAGES CONTINUE]
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[PURCHASER
SIGNATURE PAGES TO TNXI
WAIVER
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name
of
Holder: Enable
OpportunityPartners LP
Signature
of Authorized Signatory of Holder:
/s/Xxxxxxx
X'Xxxx
Name
of
Authorized Signatory: Xxxxxxx
X'Xxxx
Title
of
Authorized Signatory: Principal
and Portfolio Manager
[SIGNATURE
PAGES CONTINUE]
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[PURCHASER
SIGNATURE PAGES TO TNXI
WAIVER
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name
of
Holder: Xxxxxx
Diversified Strategy Master Fund LLC, ena
Signature
of Authorized Signatory of Holder:
/s/Xxxxxxx
X'Xxxx
Name
of
Authorized Signatory: Xxxxxxx
X'Xxxx
Title
of
Authorized Signatory: Principal
and Portfolio Manager
[SIGNATURE
PAGES CONTINUE]
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[PURCHASER
SIGNATURE PAGES TO TNXI
WAIVER
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name
of
Holder: Crescent
International Ltd.
Signature
of Authorized Signatory of Holder:
/s/
Maxi Brezzi
Name
of
Authorized Signatory: Maxi
Brezzi Xxxxxx xxxxx-Xxxxxxxx
Title
of
Authorized Signatory: Authorized
Signatories
