WAIVER CONSENT AND AMENDMENT AGREEMENT
Exhibit
4.9
THIS
WAIVER, CONSENT AND AMENDMENT AGREEMENT, dated as of November 5, 2008 (this
“Agreement”),
by and among Hague Corp. (“Borrower”),
MKM Opportunity Master Fund, Ltd. (“MKM
Opportunity“), Xxxxxx Xxxxxx Irrevocable Trust u/t/a Dated 06/17/65
(“Posner”),
MKM SP1, LLC (“MKM SP1”
and together with MKM Opportunity and Posner, the “Subscribers”),
Xxxxxxx X. Xxxxxx, Attorney Escrow (“Xxxxxx”)
and Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP (the “Escrow
Agent”).
W I T N E
S S E T H:
WHEREAS,
the Subscribers have entered into the Transaction Documents with the Borrower
pursuant to which the Subscribers are to be issued certain debentures and shares
of Common Stock; and
NOW
THEREFORE, in consideration of the mutual benefits accruing to Subscribers and
Borrower and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto do hereby agree as
follows:
1. DEFINITIONS.
For the
purposes hereof, in addition to the terms defined elsewhere in this Agreement,
(a) capitalized terms not otherwise defined herein shall have the meanings set
forth in the Securities Purchase Agreement (the “Securities
Purchase Agreement”) dated as of November 4, 2008 by and among the
Borrower and the Subscribers and (b) the following terms shall have the
following meanings:
“Transaction
Documents” means this Agreement, the Debentures, the Securities Purchase
Agreement, the Registration Rights Agreement, the Security Agreement, the Escrow
Agreement, the Subsidiary Guarantee and the Stock Pledge Agreement, all exhibits
and schedules thereto and hereto and any other documents or agreements executed
in connection with the transactions contemplated hereunder.
2. WAIVERS
AND CONSENT.
2.1 Waiver of Closing
Conditions. Notwithstanding anything to the foregoing in any
of the Transaction Documents, the parties shall have two (2) business days from
the date hereof to deliver to the Escrow Agent (i) originally executed legal
opinion from Xxxxxx relating to the Securities Purchase Agreement, (ii) the
Restricted Shares, (iii) originally executed legal opinion from Xxxxxx relating
to the Stock Purchase Agreement dated as of October 31, 2008 by and among the
Borrower and the Subscribers (the “Private Sale
Agreement”), and (iv) the free-trading shares pursuant to the Private
Sale Agreement. Upon receipt of this executed Agreement, the parties
authorize the Escrow Agent to wire the Subscription Amount (as defined in the
Escrow Agreement) to the Borrower pursuant to the disbursement memo executed by
the Borrower and the Subscribers.
2.2 Closing
Date. The Borrower and Subscribers hereby confirm that the
nothing contained herein shall be construed as affecting the Closing Date, which
for all the Transaction Documents be considered as of November 4,
2008.
2.3 Effect on Lender Transaction
Documents. Subject to the waivers
and consents provided herein, all of the terms and conditions of the Lender
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 Borrower may have to the Lender under the Lender
Transaction Documents. Except as expressly set forth herein,
this Agreement shall not be deemed to be a waiver, amendment or
modification of any provisions of the Lender Transaction Documents or of any
right, power or remedy of the Lender, or constitute a waiver of any provision of
the Lender Transaction Documents (except to the extent herein set forth), or any
other document, instrument and/or agreement executed or delivered in connection
therewith, in each case whether arising before or after the date hereof or as a
result of performance hereunder or thereunder. The Lender reserve all
rights, remedies, powers, or privileges available under the Lender Transaction
Documents, at law or otherwise. This Agreement shall not constitute a
novation or satisfaction and accord of the Lender Transaction Documents or any
other document, instrument and/or agreement executed or delivered in connection
therewith.
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3. MISCELLANEOUS.
3.1 Successors and
Assigns. This Agreement shall be binding upon, and inure to
the benefit of, the successors and permitted assigns of the
Parties. Neither party hereto may assign or permit the assignment of
its obligations without first requiring the assignee of such obligation to
assume such assigning party’s rights and obligations under this
Agreement.
3.2 Governing Law; Jurisdiction;
Waiver of Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by and construed and enforced in accordance with, and any dispute
between the parties relating to or arising from the Transaction Documents shall
be governed by, the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each party agrees that
all legal proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Agreement and any other Transaction
Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New
York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York,
borough of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the enforcement of any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, or that such suit, action or proceeding is
improper or is an inconvenient venue for such proceeding. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner
permitted by law. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement or any of the Transaction
Documents, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its reasonable attorneys’ fees and other costs
and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding. EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS AGREEMENT AND HAS HAD AN
OPPORTUNITY TO SEEK SEPARATE COUNSEL OF ITS OWN CHOICE TO REVIEW THIS AGREEMENT,
(III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION
3.2.
3.3 Injunctive
Relief. Each Party acknowledges and agrees that a breach by it
of its obligations hereunder will cause irreparable harm to the other and that
the remedy or remedies at law for any such breach will be inadequate and agrees,
in the event of any such breach, in addition to all other available remedies,
the non-breaching party shall be entitled to an injunction restraining any
breach and requiring immediate and specific performance of such obligations
without the necessity of showing economic loss or the posting of any
bond.
3.4 Severability. In
the event that any provision of this Agreement becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that in such case
the parties shall negotiate in good faith to replace such provision with a new
provision which is not illegal, unenforceable or void, as long as such new
provision does not materially change the economic benefits of this Agreement to
the parties.
3.5 Counterparts/Execution. This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but one
and the same instrument. This Agreement may be executed by facsimile
signature and delivered by facsimile transmission.
3.6 Notices. Any
notice, demand or request required or permitted to be given by the respective
parties hereto pursuant to the terms of this Agreement shall delivered in
accordance with the terms of the Securities Purchase Agreement.
3.7 Entire Agreement;
Amendments. This Agreement constitutes the entire agreement
between the parties with regard to the subject matter hereof and thereof,
superseding all prior agreements or understandings, whether written or oral,
between or among the parties. No amendment, modification or other
change to this Agreement or waiver of any agreement or other obligation of the
parties under this Agreement may be made or given unless such amendment,
modification or waiver is set forth in writing and is signed by Assignors and
Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
3.8 Headings. The
headings used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the day and year first above written.
By: __________________________________________
Name:
Xxxxxxx Xxxxxxx
Title:
Chief Executive Officer
MKM OPPORTUNITY MASTER FUND,
LTD.
By: __________________________________________
Name:
Xxxxx Xxxxxxxx
Title:
Portfolio Manager
XXXXXX
XXXXXX IRREVOCABLE TRUST U/T/A DATED 06/17/65
By: __________________________________________
Name:
Xxxxxx Xxxxxx
Title:
Trustee
By: __________________________________________
Name:
Xxxxxx Xxxxxx
Title:
Trustee
MKM SP1, LLC
By: __________________________________________
Name:
Xxxxx Xxxxxxxx
Title:
Portfolio Manager
XXXXXXX X. XXXXXX, ATTORNEY
ESCROW
By: __________________________________________
Name:
Xxxxxxx X. Xxxxxx
Title:
Partner
SICHENZIA
XXXX XXXXXXXX XXXXXXX LLP
By: __________________________________________
Name:
Xxxx Xxxx, Esq.
Title:
Partner
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