WAIVER AND AMENDMENT
EXHIBIT
99.13
WAIVER AND AMENDMENT
THIS
WAIVER AND AMENDMENT, dated as of March 6, 2007 (the “Waiver”),
to the Securities Purchase Agreement, dated as of December 28, 2005, as amended
(the “Purchase Agreement”), and the 6% Secured Convertible Debenture due
December 28, 2008 (the “Debenture”) is by and among Arkados Group, Inc.
(formerly XXXXXX.XXX, Inc.), a Delaware corporation (the “Company”), and
the purchasers signatory hereto (each such purchaser, a “Purchaser” and,
collectively, the “Purchasers”). 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.
RECITALS
The
Company and Crucian Transition, Inc. (the “New Purchaser”) are entering
into a Sixth Additional Issuance Agreement, dated as of March 6, 2007 (the
“Additional Issuance Agreement”), for the purchase by the New Purchasers
of an aggregate of $20,000 of the New Debenture and New Warrants (as such terms
are defined in the Sixth Additional Issuance Agreement) pursuant to the Purchase
Agreement, between the Company and the New Purchasers.
Subject
to the terms and conditions of this Waiver, the Company has requested, and
the
Purchasers have agreed, to waive compliance with Sections 4.13 of the Purchase
Agreement.
Subject
to the terms and conditions of this Waiver, the Company has requested, and
the
Purchasers have agreed, to acknowledge that the New Underlying Shares (as such
term is defined in the Additional Issuance Agreement) shall be included on
the
Registration Statement registering the Debentures and Warrants of the
Purchasers.
Accordingly,
in consideration of the premises and of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. Waiver.
Each
Purchaser hereby waives
compliance by the Company with the obligations imposed by Section 4.13 of the
Purchase Agreement regarding such Purchaser’s right to participate in the
purchase of the New Debenture, as well as any advance made to the Company prior
to the Closing that is either repaid from the proceeds or is given as full
or
partial consideration by the New Purchasers under the Additional Issuance
Agreement. This Waiver shall not effect the rights set
forth in Section 4.13 with respect to future financing after the issuance of
the
Additional Debenture and related Warrants.
2. Acknowledgement. Each
Purchaser hereby acknowledges and agrees that, for purposes of Section 6(b)
of
the Registration Rights Agreement, dated as of December 28, 2005, between the
Company and the Purchasers signatory thereto, as amended (the “Registration
Rights Agreement”), the shares of Common Stock underlying the New Debenture
and New Warrants shall be deemed Registrable Securities which may be included
as
securities in the Company’s initial Registration Statement, on the same terms as
the Purchasers’ Registrable Securities.
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3. Miscellaneous.
THIS
WAIVER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
This
Waiver shall constitute a Transaction Document.
Except
as
expressly waived and/or amended hereby, the Purchase Agreement and the
Debentures shall remain in full force and effect in accordance with the terms
thereof. This Waiver is limited specifically to the matters set forth above
and
does not constitute directly or by implication an amendment or waiver of any
other provisions of the Purchase Agreement or Debentures or of any Event of
Default or default which may occur or may have occurred under the Purchase
Agreement or Debentures.
This
Waiver may be executed in one or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one Waiver.
[SIGNATURE
PAGE FOLLOWS]
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SIGNATURE
PAGE TO WAIVER AND AMENDMENT
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BUSHIDO
CAPITAL MASTER FUND, L.P.
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By: Bushido
Capital Partners, Ltd., its General Partner
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By:
/s/ Xxxxxxx
Xxxx-Xxxxx
Xxxxxxx
Xxxx-Xxxxx
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By:
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx |
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VP
Finance and Controller
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Director
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GAMMA
OPPORTUNITY CAPITAL PARTNERS, LP CLASS
A
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GAMMA
OPPORTUNITY CAPITAL PARTNERS, LP CLASS
C
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By: /s/
Xxxxxxxx X. Xxxxxx
Xxxxxxxx
X. Xxxxxx
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By:
/s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx
X. Xxxxxx
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President
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President
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CARGO
HOLDINGS LLC
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By:
Xxxxx
Xxxxxxxx
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Member
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By:
Gennaro
Vendome
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Member
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