WAIVER UNDER SECURITIES PURCHASE AGREEMENT AND DEBENTURE
EXHIBIT
99.19
THIS
WAIVER (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”). This Waiver 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.
RECITALS
The
Company is entering into a Ninth Additional Issuance Agreement (the
“Additional Issuance Agreement”), for the purchase by the New Purchasers
signatory thereto, of an aggregate of up to $500,000 (of which $420,000 is
a
cash investment and up to $80,000 is in lieu of repayment of certain advances
made on behalf of the Company) of the New Debentures and New Warrants (as such
terms are defined in the Ninth 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 and 4.14 of
the
Purchase Agreement and Sections 7(a), 7(b) and 7(e) of the
Debentures.
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. Waivers.
(a) With
respect to the issuance of New Debentures and New Warrants pursuant to the
Additional Issuance Agreement only, 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 Debentures, 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.
(b) With
respect to the issuance of New Debentures and New Warrants pursuant to the
Additional Issuance Agreement only, each Purchaser hereby waives the Company’s
compliance with the restrictions imposed by Section 4.14 of the Purchase
Agreement with respect to (i) the issuance of the New Debentures and New
Warrants under the Additional Issuance Agreement.
(c) With
respect to the issuance of New Debentures and New Warrants pursuant to the
Additional Issuance Agreement only, each Purchaser hereby waives the Company’s
compliance with the negative covenants imposed by Sections 7(a), 7(b) and 7(e)
of the Debentures regarding the Company’s agreement not to create indebtedness
and liens and not to enter into agreements with respect thereto.
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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.
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
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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
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By:
_________________________
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Xxxxxxx
Xxxx-Xxxxx
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Xxxxxx
X. Xxxxx
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Chief
Financial Officer
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Partner
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Dated:
May 31, 2007
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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
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By: /s/
Xxxxxxxx X.
Xxxxxx
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Xxxxxxxx
X.
Xxxxxx
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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:
/s/ Xxxxx
Xxxxxxxx
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Xxxxx
Xxxxxxxx
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Member
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By:
/s/ Gennaro
Vendome
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Gennaro
Vendome
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Member
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