EXHIBIT 99.1
WAIVER
This Waiver (this "WAIVER"), dated as of Decmeber 6, 2004, is entered
into by and among DKR Soundshore Oasis Holding Fund, LLC ("SOUNDSHORE"), DKR
Soundshore Strategic Holding Fund, LLC ("SOUNDSHORE STRATEGIC" and, collectively
with Soundshore, the "INVESTORS"), and Xxxxxxxx Technologies, Inc., a Florida
corporation (the "COMPANY").
WHEREAS, the Investors and the Company are parties that certain
Purchase Agreement, dated as of September 21, 2004 (the "PURCHASE AGREEMENT")
(capitalized terms that are used and not defined herein shall have the
respective meanings set forth in the Purchase Agreement);
WHEREAS, in connection with the Purchase Agreement, the Investors and
the Company entered into a Security Agreement (the "SECURITY AGREEMENT"), and a
Registration Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT"), and the
Investors purchased certain convertible promissory notes (the "NOTES") and
warrants to purchase shares of the common stock, $.0001 par value per share, of
the Company (the "WARRANTS" and collectively with the Notes, the Registration
Rights Agreement, the Security Agreement, and the Purchase Agreement, the
"TRANSACTION DOCUMENTS");
WHEREAS, the Company desires to engage a consultant to provide
marketing and public relations advice (the "MARKETING CONSULTANT") and, in
connection with such engagement, intends to issue warrants to purchase an
aggregate of 4,400,000 shares (the "WARRANT SHARES") to the Marketing Consultant
and another consultant who assisted the Company in finding and retaining the
Marketing Consultant;
WHEREAS, the Marketing Consultant is requiring, as a term of such
engagement, that the Company agree to file with the Securities and Exchange
Commission (the "SEC") a registration statement covering the Warrant Shares (the
"SUBSEQUENT REGISTRATION");
Whereas, the Subsequent Registration is prohibited by Section 4.8(a) of
the Purchase Agreement; and
WHEREAS, the Company has requested that the Investors waive certain
rights under the Transaction Documents in connection with the Subsequent
Registration and, subject to the terms and conditions herein contained, the
Investors are willing to agree to provide such waiver;
NOW, THEREFORE, in consideration of the premises and the other mutual covenants
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
1. WAIVERS. Subject to the terms and conditions contained in this Waiver,
the Investors hereby waive the application of Section 4.8(a) of the
Purchase Agreement to the Subsequent Registration, and waive any
default or potential default that the Subsequent Registration, without
such waiver, may have caused under the Purchase Agreement or the other
Transaction Documents, including without limitation any Events of
Default under Section 7 of the Notes.
The foregoing are limited waivers and the execution and delivery of this Waiver
does not constitute (a) a waiver by either of the Investors of any Default or
Event of Default now or hereafter existing or any other term or provision of the
Notes or any other Transaction Document or (b) a course of conduct or dealing
among the parties.
2. TRANSACTION DOCUMENTS IN FULL FORCE AND EFFECT. Subject to the waivers
herein provided, the Transaction Documents shall remain in full force
and effect. Except as expressly set forth herein, this Waiver shall not
be deemed to be a waiver, amendment or modification of any provisions
of any Transaction Document or of any right, power or remedy of any
Investor or the Agent thereunder, or constitute a waiver of any
provision of any Transaction Document (except to the extent herein set
forth in SECTION 1), or any other document, instrument and/or agreement
executed or delivered in connection therewith or of any Default or
Event of Default under any of the foregoing, in each case whether
arising before or after the date hereof or as a result of performance
hereunder or thereunder. Except as set forth herein, the Investors
reserve all rights, remedies, powers, or privileges available under the
Transaction Documents, at law or otherwise. This Waiver shall not
constitute a novation or satisfaction and accord of any Transaction
Document.
3. MISCELLANEOUS.
3.1. This Waiver may be executed in any number of counterparts
(including by facsimile), and by the different parties hereto
on the same or separate counterparts, each of which shall be
deemed to be an original instrument but all of which together
shall constitute one and the same agreement. Each party agrees
that it will be bound by its own facsimile signature and that
it accepts the facsimile signature of each other party. The
descriptive headings of the various sections of this Waiver
are inserted for convenience of reference only and shall not
be deemed to affect the meaning or construction of any of the
provisions hereof or thereof.
3.2. This Waiver may not be changed, amended, restated, waived,
supplemented, discharged, canceled, terminated or otherwise
modified orally or by any course of dealing or in any manner
other than as provided in the Purchase Agreement.
3.3. This Waiver constitutes the entire agreement and understanding
between the parties with respect to the subject matter hereof
and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements between the
parties, and shall be binding upon and inure to the benefit of
the successors and assigns of the parties hereto and thereto.
There are no unwritten oral agreements between the parties
with respect to the subject matter hereof and thereof.
3.4. THIS CONDITIONAL WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS
SET FORTH IN THE PURCHASE AGREEMENT AND SHALL BE SUBJECT TO
THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE PURCHASE
AGREEMENT.
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3.5. THE COMPANY ACKNOWLEDGES AND AGREES THAT TO THE KNOWLEDGE OF
THE COMPANY IT HAS NO CLAIMS, COUNTERCLAIMS, OFFSETS, CREDITS
OR DEFENSES TO ANY TRANSACTION DOCUMENT AND THE PERFORMANCE OF
ITS OBLIGATIONS THEREUNDER OR, TO THE EXTENT THEY EXIST, THE
COMPANY HEREBY WAIVES, RELINQUISHES AND RELEASES ANY SUCH
KNOWN CLAIMS, COUNTERCLAIMS, OFFSETS, CREDITS OR DEFENSES TO
ANY TRANSACTION DOCUMENTS AND/OR ANY TRANSACTION RELATED TO
ANY TRANSACTION DOCUMENT.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned have executed this Waiver as an
instrument under seal as of the date first written above.
XXXXXXXX TECHNOLOGIES, INC.
By:
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Name:
Title:
DKR SOUNDSHORE OASIS HOLDING FUND, LLC
By:
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Name:
Title:
DKR SOUNDSHORE STRATEGIC HOLDING FUND,
LLC
By:
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Name:
Title:
