Exhibit 10.6
ICOA, INC.
000 XXXXXXX XXXX
XXXXXXX, XXXXX XXXXXX 00000
June 13, 2001
To each of the Subscribers
and Warrant Recipients
listed on Schedule I hereto:
Reference is made to each of those certain Subscription Agreements,
dated as of August 28, 2000, as amended to date (the "Subscription Agreements")
between each Subscriber and ICOA, Inc., a Nevada corporation (the "Company"),
pursuant to which the Company issued (a) Notes dated as of August 28, 2000 in an
aggregate principal amount of $500,000 (the "Initial Notes") to the Subscribers,
convertible according to the terms thereof into shares of common stock of the
Company, par value $.0001 per share (the "Common Stock") and warrants to
purchase shares of Common Stock, and (b) a Put Note dated as of February 8, 2001
in the principal amount of $60,000 (the "Initial Put Note"; and together with
the Subscription Agreements, the Initial Notes and the other documents entered
into in connection therewith, the "Initial Documents"), convertible according to
the terms thereof into shares of Common Stock and warrants to purchase shares of
Common Stock. All terms defined in each of the Subscription Agreements shall
have the same meaning when used in this amendment and waiver unless otherwise
defined herein.
Reference is also made to the subscription agreement and the other
documents (collectively, the "Transaction Documents") dated on or about the date
hereof, by and between the Company and Laurus Master Fund, Ltd. (the
"Investor"), pursuant to which the Company is issuing (i) a Note in the
principal amount of $400,000 (the "Note") to the Investor, convertible according
to the terms thereof into shares of Common Stock, and (ii) a Warrant (the
"Warrant") for the purchase of up to 4,000,000 shares of Common Stock.
In connection with the parties' entering into the agreements
contemplated by the Transaction Documents, including to permit the Company to
issue the Note and the Warrant to the Investor, the Company requests that each
Subscriber agree to amend and/or waive certain provisions contained in the
Initial Documents.
The Subscribers hereby waive their rights and any and all agreements
and requirements contained in the Initial Documents, only to the fullest extent
necessary to consummate the agreements and transactions contemplated by the
Transaction Documents, and to permit future issuances of securities, if any, by
the Company to the Subscriber, including, without limitation, the right of first
refusal provisions contained in Section 12(a) of the Subscription Agreements,
the offering and sale restrictions contained in Section 12(b) of the
Subscription Agreements, and the anti-dilution provisions contained in Section
2.1(c)(D) of the Initial Notes and the Initial Put Note, and Section 3.4 of the
Warrants issued or issuable upon a conversion of the Initial Notes or Initial
Put Note.
Subscribers and Warrant
Recipients listed on Schedule I
June 13, 2001
page 2/3
The Subscribers further waive their rights of first refusal provided
under Section 12(a) of the Subscription Agreements, and the offering and sale
restrictions contained in Section 12(b) of the Subscription Agreements, to the
extent necessary to permit the issuance of (A) options to (i) Xxxxx Xxxxx to
purchase 444,444 shares of Common Stock, and (ii) Xxxxxx Xxxxxxxxx to purchase
500,000 shares of Common Stock (each of the foregoing issuances, the
"Consultants' Options"), and (B) any securities issued upon exercise of the
Consultants' Options (the "Option Shares") and each of the Consultants' Options
and Option Shares shall be deemed included within the definitions of "Excepted
Issuances" set forth in Section 12(a) of the Subscription Agreements, and
"Excepted Issuance Obligations" set forth in Section 2.1(c)(D) of the Notes and
the Initial Put Note.
The Subscribers further agree that each of the Consultants' Options
and Option Shares shall be deemed included within the reference to "stock or
stock options granted to employees or directors of the Company" set forth in
Section 3.4 of the Warrants issued or issuable upon a conversion of the Initial
Notes or Initial Put Note.
[Remainder of Page Intentionally Left Blank]
Subscribers and Warrant
Recipients listed on Schedule I
June 13, 2001
page 3/3
Except as set forth in this amendment and waiver, each of the
Subscription Agreements remains in full force and effect and no other rights or
remedies are waived or changed. Please acknowledge your agreement with the
foregoing by signing in the space provided below.
Very truly yours,
ICOA, INC.
By: /s/ Xxxxx Xxxxxxxx, Xx.
--------------------------------
Name: Xxxxx Xxxxxxxx, Xx.
Title: Chief Financial Officer
AGREED AND ACCEPTED
-------------------
KESHET X.X. XXXX INVESTMENTS, INC.
--Subscriber --Subscriber
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
-------------------------------- --------------------------------
Name: Xxxx Xxxxx Name: Xxxxxx Xxxxxx
Title: Authorized Signatory Title: Director
TALBIYA B. INVESTMENTS LTD. LIBRA FINANCE, S.A.
--Subscriber and Warrant Recipient --Warrant Recipient
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxx
-------------------------------- --------------------------------
Name: Xxxx Xxxxx Name: Xxxxxxx Xxxxx
Title: Director Title: Director
NESHER LTD.
--Subscriber
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Director
SCHEDULE I
Keshet L.P.
Ragnall House
00 Xxxx Xxxx
Xxxxxxx, Xxxx xx Xxx
0X0 0X0
Xxxxxx Xxxxxxx
Talbiya B. Investments
Ragnall House
00 Xxxx Xxxx
Xxxxxxx, Xxxx xx Xxx
0X0 0X0
Xxxxxx Xxxxxxx
Nesher Ltd.
Ragnall House
00 Xxxx Xxxx
Xxxxxxx, Xxxx xx Xxx
0X0 0X0
Xxxxxx Xxxxxxx
Tusk Investments, Inc.
P.O. Box 4603
Zurich
Switzerland
Libra Finance, S.A.
P.O. Box 4603
Zurich
Switzerland
