sp8k_june22009.htm

0001415889-09-000153.txt : 20090604 0001415889-09-000153.hdr.sgml : 20090604 20090604153603 ACCESSION NUMBER: 0001415889-09-000153 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20090602 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20090604 DATE AS OF CHANGE: 20090604 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SkyPeople Fruit Juice, Inc CENTRAL INDEX KEY: 0001066923 STANDARD INDUSTRIAL CLASSIFICATION: CANNED, FROZEN & PRESERVED FRUIT, VEG & FOOD SPECIALTIES [2030] IRS NUMBER: 980222013 STATE OF INCORPORATION: FL FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-32249 FILM NUMBER: 09874141 BUSINESS ADDRESS: STREET 1: 3233 GRAND AVENUE STREET 2: .SUITE N-353 CITY: CHINO HILLS STATE: CA ZIP: 91709-1489 BUSINESS PHONE: 8668153951 MAIL ADDRESS: STREET 1: 3233 GRAND AVENUE STREET 2: .SUITE N-353 CITY: CHINO HILLS STATE: CA ZIP: 91709-1489 FORMER COMPANY: FORMER CONFORMED NAME: ENTECH ENVIRONMENTAL TECHNOLOGIES INC DATE OF NAME CHANGE: 20040323 FORMER COMPANY: FORMER CONFORMED NAME: CYBER PUBLIC RELATIONS INC DATE OF NAME CHANGE: 20010111 8-K 1 sp8k_june22009.htm 8-K sp8k_june22009.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT PURSUANT

TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): June 2, 2009

SKYPEOPLE FRUIT JUICE, INC.

(Exact Name of Registrant as Specified in Its Charter)

Florida

(State or Other Jurisdiction of Incorporation)

000-32249	98-0222013
(Commission File Number)	(IRS Employer Identification No.)
16F, National Development Bank Tower , No. 2, Gaoxin 1st Road, Xi’an, China (Address of Principal Executive Offices)	710075 (Zip Code)

011-86-29-88386415

(Registrant’s Telephone Number, Including Area Code)

______________________________

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (See General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

On June 2, 2009, SkyPeople Fruit Juice, Inc. (“SkyPeople” or “the Company”) entered into an Exchange Agreement dated as of May 28, 2009 with Barron Partners L.P., a Delaware limited partnership (“Barron”) and Eos Holdings LLC, a Delaware limited liability company (“Eos” and together with Barron, the “Investors”), whereby the Company agreed to issue to the Investors a reduced number of new warrants (the “New Warrants”) to purchase the Company’s Common Stock (New Warrants to purchase an aggregate of 5,500,000 shares at an exercise price of $1.70 per share and New Warrants to purchase an aggregate of 1,000,000 shares at an exercise price of $1.70 per share (with the exercise price of such 1,000,000 New Warrants only to increase to $3.00 per share if such New Warrants shall remain unexercised on the later of (y) 120 days after the date of issuance of such warrants or (z) 30 days after the Securities and Exchange Commission declares effective a registration statement covering the resale of the shares of the Company’s Common Stock issuable upon exercise of such warrants)) in consideration for (i) the delivery by the Investors to the Company for cancellation of warrants to purchase an aggregate of 7,000,000 shares at an exercised price of $3.000 which were issued to the Investors by the Company in February 2008 (the “February 2008 Warrants”), (ii) the release of the Company by the Investors of all liability for damages, including any and all liquidated damages, penalties and interest thereon, relating to any breach or breaches of any obligation of the Company under the Registration Rights Agreement, dated as of February 25, 2008 between the Investors and the Company from the date of execution of such agreement through the date of such release and (iii) the waiver by the Investors of any right to receive any Make Good Escrow Stock (shares of the Company’s Series B Preferred Stock deposited in escrow by the Company in escrow pursuant to a Series B Convertible Preferred Stock Purchase Agreement dated as of February 25, 2008 between the Company and the Investors (the “Purchase Agreement”)) solely as a result of, and to the extent that, such Make Good Escrow Stock would be deliverable to the Investors because Pre-Tax Income Per Share for the Company’s fiscal year ending December 31, 2009 (for purposes of determining whether the Company has achieved its Target Number (as defined in the Purchase Agreement) for such fiscal year), is reduced as a result of any reduction in net income available to common stockholders for such fiscal year and/or an increase in the weighted average number of shares of Common Stock outstanding during the period due to the issuance and delivery to the Investors of New Warrants in exchange for the February 2008 Warrants.

Under the Exchange Agreement the Company is required to file with the Securities and Exchange Commission a Registration Statement on Form S-1 (the “Registration Statement”) and use its reasonable commercial efforts to facilitate the effectiveness of the Registration Statement. The prospectus contained in the Registration Statement shall cover all of the shares of the Common Stock of the Company issuable upon exercise of all of the New Warrants.

Item 3.02 Unregistered Sales of Equity Securities.

On June 2, 2009, the Company issued to the Investors New Warrants to purchase an aggregate of 6,500,000 shares of the Company’s Common Stock pursuant to the Exchange Agreement described in Item 101 of this Current Report. The issuance of the New Warrants was accomplished in reliance upon Section 4(2) of the Securities Act. The New Warrants are exercisable at any time through February 4, 2013 at an exercise price of $1.70 per share (except that the exercise price of 1,000,000 of such New Warrants shall increase to $3.00 per share if such New Warrants shall remain unexercised on the later of (y) 120 days after the date of issuance of such warrants or (z) 30 days after the Securities and Exchange Commission declares effective a registration statement covering the resale of the shares of the Company’s Common Stock issuable upon exercise of such warrants).

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Item 9.01 Financial Statements and Exhibits.

The following exhibits are filed with this Current Report

10.1 Exchange Agreement, dated as of June 2, 2009 by and among SkyPeople Fruit Juice, Inc., Barron Partners L.P., and Eos Holdings LLC.

10.2 Waiver and Release, dated as of May 28, 2009 by Barron Partners L.P. in favor of the Company.

10.3 Waiver and Release, dated as of May 28, 2009 by Eos Holdings, LLC in favor of the Company.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: June 4, 2009

SKYPEOPLE FRUIT JUICE, INC.

By: /s/ SPRING LIU

Spring Liu,

Chief Financial Officer

(Principal Financial Officer)

EX-10.1 2 exhibit10_1.htm EXHIBIT 10.1 exhibit10_1.htm

Exhibit 10.1

EXCHANGE AGREEMENT

This Exchange Agreement (this “Agreement”) is entered into as of May 28, 2009, by and among SkyPeople Fruit Juice, Inc., a Florida corporation (the “Company”), Barron Partners L.P., a Delaware limited partnership (“Barron”) and Eos Holdings LLC, a Delaware limited liability company (“Eos” and together with Barron, the “Investors”). Each of the parties named in the foregoing sentence is sometimes referred to herein individually as a “Party” and collectively with all of the other parties named in the foregoing sentence as the “Parties.”

PRELIMINARY STATEMENTS

A. On February 25, 2008, the Company entered into a Series B Convertible Preferred Stock Purchase Agreement (the “Stock Purchase Agreement”) with the Investors pursuant to which the Company issued to the Investors (i) 2,833,333 shares of a newly designated Series B Convertible Preferred Stock of the Company, par value $0.001 per share (“Series B Stock”) and (ii) warrants to purchase an aggregate of 7,000,000 shares of the Company’s Common Stock (the “February 2008 Warrants”), in consideration for a cash payment to the Company in the aggregate amount of $3,400,000 (the “Purchase Price”). The February 2008 Warrants are currently immediately exercisable at a price of $3.00 per share at any time until February 24, 2013. Under the Stock Purchase Agreement, the Company also deposited 2,000,000 shares of Series B Stock into an escrow account which is being held by an escrow agent as make good shares in the event the Company’s consolidated pre-tax income and pre-tax income per share, on a fully-diluted basis, for the years ended December 31, 2007, 2008 or 2009, are less than certain target numbers set forth in the Stock Purchase Agreement.

B. In connection with the Stock Purchase Agreement, on February 26, 2008, the Company entered into a Registration Rights Agreement with the Investors (the “Registration Rights Agreement”), pursuant to which the Company agreed to prepare and file one or more registration statements to register for resale the shares of the Common Stock of the Company issuable upon conversion of the Series B Stock and upon exercise of the February 2008 Warrants.

C. Under the terms of the Registration Rights Agreement the Company was required, among other things, to:

(1) prepare and file with the Securities and Exchange Commission (the “SEC”) prior to March 26, 2008 an initial registration statement covering the resale of the shares of the Common Stock of the Company issuable upon conversion of the Series B Stock and upon exercise of the February 2008 Warrants issued to the Investors under the Stock Purchase Agreement; and

(2) use its commercially reasonable best efforts to have an initial registration statement declared effective by the SEC within 120 days following the filing date.

D. The Company filed with the SEC the initial registration statement on March 26, 2008. Therefore, the Company was required to have the registration statement declared effective by the SEC by July 24, 2008 (within 120 days after the initial filing date of March 26, 2008). The registration statement was declared effective by the SEC on February 5, 2009. Therefore, an aggregate of $255,605 in liquidated damages is due to the Investors pursuant to the Registration Rights Agreement.

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E. Subject to the terms and conditions of this Agreement, the Parties desire that the Company issue to the Investors a reduced number of new warrants (the “New Warrants”) to purchase the Company’s Common Stock (New Warrants to purchase an aggregate of 5,500,000 shares at an exercise price of $1.70 per share and New Warrants to purchase an aggregate of 1,000,000 shares at an exercise price of $1.70 per share (with the exercise price of such 1,000,000 New Warrants only to increase to $3.00 per share if such New Warrants shall remain unexercised on the later of (y) 120 days after the date of issuance of such warrants or (z) 30 days after the Securities and Exchange Commission declares effective a registration statement covering the resale of the shares of the Company’s Common Stock issuable upon exercise of such warrants (such later date is hereinafter referred to as the “Warrant Exercise Price Increase Date”)) in consideration for (i) the delivery by the Investors to the Company for cancellation of all of the February 2008 Warrants, (ii) the release of the Company by the Investors of all liability for damages, including any and all liquidated damages, penalties and interest thereon, relating to any breach or breaches of any obligation of the Company under the Registration Rights Agreement from the date of execution of such agreement through the date of such release and (iii) the waiver by the Investors of any right to receive any Make Good Escrow Stock solely as a result of, and to the extent that, such Make Good Escrow Stock would be deliverable to the Investors because Pre-Tax Income Per Share for the Company’s fiscal year ending December 31, 2009 (for purposes of determining whether the Company has achieved its Target Number for such fiscal year) is reduced as a result of any reduction in net income available to common stockholders for such fiscal year and/or an increase in the weighted average number of shares of Common Stock outstanding during the period due to the issuance and delivery to the Investors of New Warrants in exchange for the February 2008 Warrants.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

1. Simultaneously with the execution of this Agreement:

(a) Barron shall deliver to the Company for cancellation the original signed certificate evidencing February 2008 Warrants to purchase an aggregate of 6,794,118 shares of Common Stock and Eos shall deliver to the Company the original signed certificate evidencing February 2008 Warrants to purchase an aggregate of 205,882 shares of Common Stock, together, in each case with a signed Assignment of the Warrants to the Company in the form attached hereto as Exhibit A (the “Warrant Assignment”).

(b) Each of the Investors shall sign and deliver to the Company a Release and Waiver in the form attached hereto as Exhibit B (the “Release and Waiver”).

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(c) The Company shall sign and deliver to (i) Barron, (A) a certificate for New Warrants to purchase an aggregate of 5,338,236 shares of the Company’s Common Stock at an exercise price of $1.70 per share and (B) a certificate for New Warrants to purchase an aggregate of 970,588 shares of the Company’s Common Stock at an exercise price of $1.70 per share (such exercise price (but not the exercise price of the New Warrants referred to in Section 1(c)(i)(A)) to increase to $3.00 per share if such New Warrants shall remain unexercised on the Warrant Exercise Price Increase Date) registered in the name of Barron, which certificates shall be in the forms attached hereto as Exhibits C-1 and C-2, respectively, and (ii) Eos, (A) a certificate for New Warrants to purchase an aggregate of 161,764 shares of the Company’s Common Stock at an exercise price of $1.70 per share and (B) a certificate for New Warrants to purchase an aggregate of 29,412 shares of the Company’s Common Stock at an exercise price of $1.70 per share (such exercise price to increase to $3.00 per share if such New Warrants shall remain unexercised on the Warrant Exercise Price Increase Date) registered in the name of Eos, which certificates shall be in the form attached hereto as Exhibit C-3 and C-4, respectively (each of the warrant certificates referred to in this Section 1(c) is hereinafter referred to individually as a “New Warrant Certificate” and such certificates are hereinafter referred to collectively as the “New Warrant Certificates”). As an example of how the exercise price of the New Warrants shall reset on the Warrant Exercise Price Increase Date, if Barron has exercised New Warrants to purchase an aggregate of 3,000,000 shares of the Company’s Common Stock on or before the Warrant Exercise Price Increase Date and has not transferred any New Warrants and no events occur between the date of issuance of the New Warrants and the Warrant Exercise Price Increase Date which would cause an anti-dilution adjustment in the exercise price of the New Warrants, then on such date, Barron shall hold (y) New Warrants to purchase 970,588 shares of the Company’s Common Stock at an exercise price of $3.00 per share and (z) New Warrants to purchase an aggregate of 2,338,236 shares of the Company’s Common Stock at an exercise price of $1.70 per share.

2. The Company shall file with the Securities and Exchange Commission (the “SEC”) a new Registration Statement on Form S-1 (the “Registration Statement”) and use its reasonable commercial efforts to facilitate the effectiveness of the Registration Statement. The prospectus contained in the Registration Statement shall cover all of the shares of the Common Stock of the Company issuable upon exercise of all of the New Warrants (the “New Warrant Shares”).

3. Before or at the closing of the sale of New Warrant Shares pursuant to the Registration Statement, the Investors shall exercise such of the New Warrants it desires to exercise by delivery of a signed notice of exercise in form and substance satisfactory to the Company.

4. No Third Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.

5 Entire Agreement. This Agreement constitutes the entire agreement among the Parties and supersedes any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they related in any way to the subject matter hereof.

6. Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign either this Agreement or any of his or its rights, interests, or obligations hereunder without the prior written approval of the other Parties.

7. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.

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8. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

9. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed given to a Party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid), (b) sent by facsimile or e-mail with confirmation of transmission by the transmitting equipment, or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested; in each case to the following addresses, facsimile numbers or e-mail addresses and marked to the attention of the individual (by name or title) designated below (or to such other address, facsimile number, e-mail address or individual as a party may designate by notice to the other parties):

If to the Company:

SkyPeople Fruit Juice, Inc.

16F, National Development Bank Tower

No. 2, Gaoxin 1st. Road, Xi’an, PRC

With a copy (which shall not constitute notice) to:

Guzov Ofsink, LLC

600 Madison Avenue, 14th Floor

New York, New York 10022

Attention: Darren L. Ofsink

Telephone No.: (212) 371-8008

Facsimile No.: (212) 688-7273

E-mail: dofsink@golawintl.com

If to Barron:

Barron Partners L.P.

c/o Barron Capital Advisors, LLC

730 Fifth Avenue, 25th Floor

New York, New York 10019

Attn: Andrew Barron Worden

E-mail: abw@barronpartners.com and onf@barronpartners.com

Fax: (212) 359-0222

If to Eos:

Eos Holdings LLC:

2560 Highvale Dr

Las Vegas, NV 89134

Attn: Jon R. Carnes

E-mail: jcarnes@eosfunds.com

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10. Controlling Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to choice of law provisions, statutes, regulations or principles of this or any other jurisdiction. Each Party hereby irrevocably submits to the exclusive jurisdiction (including personal jurisdiction) of the state and federal courts of the State of New York for any action, suit or proceeding arising in connection with this Agreement, and agrees that any such action suit or proceeding shall be brought only in such court (and waives any objection based on forum non conveniens or any other jurisdiction to venue therein). Process in any Proceeding under this Agreement may be served on any Party anywhere in the world.

11. Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the Parties. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

12. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. Furthermore, in lieu of such invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be legal, valid and enforceable.

13. Expenses. Each Party shall bear all costs and expenses incurred by it in connection with the Agreement and the transactions contemplated hereby.

14. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation. The Parties intend that each representation, warranty, and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, or covenant.

15. Incorporation of Exhibits. The Exhibits identified in this Agreement are incorporated herein by reference and made a part hereof.

(Remainder of page intentionally left blank)

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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first set forth above.

SKYPEOPLE FRUIT JUICE, INC.

By: /s/ Yongke Xue

Name: Yongke Xue

Title: Chief Executive Officer

BARRON PARTNERS L.P.

By: /s/ Andrew Barron Worden

Name: Andrew Barron Worden

Title: Managing Partner

EOS HOLDINGS, LLC

By: /s Jon Carnes

Name: Jon Carnes

Title: President

EX-10.2 3 exhibit10_2.htm EXHIBIT 10.2 exhibit10_2.htm

Exhibit 10.2

WAIVER AND RELEASE

THIS RELEASE AND WAIVER, dated as of May 28, 2009 (the “Release”), is hereby executed by the investor whose name appears on the signature page hereto (the “Releasor”) in favor of SkyPeople Fruit Juice Inc., a Florida corporation (the “Company”).

WHEREAS, on February 25, 2008, the Company entered into a Series B Convertible Preferred Stock Purchase Agreement (the “Stock Purchase Agreement”) with the Releasor and one other investor (collectively, the “Investors”) pursuant to which the Company issued to the Investors (i) 2,833,333 shares of a newly designated Series B Convertible Preferred Stock of the Company, par value $0.001 per share (“Series B Stock”) and (ii) warrants to purchase an aggregate of 7,000,000 shares of the Company’s Common Stock (the “February 2008 Warrants”), in consideration for a cash payment to the Company in the aggregate amount of $3,400,000;

WHEREAS, pursuant to the Stock Purchase Agreement, the Company deposited 2,000,000 shares of Series B Stock (the “Make Good Escrow Stock”) into an escrow account which is being held by an escrow agent as make good shares in the event the Company’s consolidated pre-tax income and pre-tax income per share, on a fully-diluted basis, for the years ended December 31, 2007, 2008 or 2009, are less than certain target numbers set forth in the Stock Purchase Agreement;

WHEREAS, in connection with the Stock Purchase Agreement, on February 26, 2008, the Company entered into a Registration Rights Agreement with the Investors (the “Registration Rights Agreement”), pursuant to which the Company agreed to prepare and file one or more registration statements to register for resale the shares of the Common Stock of the Company issuable upon conversion of the Series B Stock and upon exercise of the February 2008 Warrants;

WHEREAS, under the terms of the Registration Rights Agreement the Company was required, among other things, to:

(1) prepare and file with the Securities and Exchange Commission (the “SEC”) prior to March 26, 2008 an initial registration statement covering the resale of the shares of the Common Stock of the Company issuable upon conversion of the Series B Stock and upon exercise of the warrants issued to the Investors under the Stock Purchase Agreement; and

(2) use its commercially reasonable best efforts to have an initial registration statement declared effective by the SEC within 120 days following the filing date;

WHEREAS, the Company filed with the SEC the initial registration statement on March 26, 2008. Therefore, the Company was required to have the registration statement declared effective by the SEC by July 24, 2008 (within 120 days after the initial filing date of March 26, 2008). The registration statement was declared effective by the SEC on February 5, 2009. Therefore, an aggregate of $255,605 in liquidated damages is due to the Investors pursuant to the Registration Rights Agreement;

WHEREAS, simultaneously with the execution of this Release, the Company is entering into an Exchange Agreement with the Investors (the “Exchange Agreement”) pursuant to which, in partial consideration of the issuance to the Investors of warrants to purchase the Company’s Common Stock (the “New Warrants”), the Investors have agreed to execute and deliver this Agreement; and

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WHEREAS, all capitalized terms used herein, which are not otherwise defined herein, shall have the meanings ascribed to them in the Stock Purchase Agreement.

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Investor hereby agrees to and does hereby:

1. Release and discharge, forever and unconditionally, the Company from all claims and liabilities for damages, including any and all liquidated damages, penalties and interest thereon, relating to any breach or breaches of any obligation of the Company under the Registration Rights Agreement from the date of execution of such agreement through the date hereof.

2. Irrevocably waive any right to receive any Make Good Escrow Stock solely as a result of, and to the extent that, such Make Good Escrow Stock would be deliverable to the Investors because Pre-Tax Income Per Share for the Company’s fiscal year ending December 31, 2009 (for purposes of determining whether the Company has achieved its Target Number for such fiscal year) is reduced as a result of any reduction in net income available to common stockholders for such fiscal year and an increase in the weighted average number of shares of Common Stock outstanding during the period due to the issuance and delivery to the Investors of New Warrants in exchange for the February 2008 Warrants. Except as and to the extent waived pursuant to the immediately preceding sentence, the provisions contained in the Stock Purchase Agreement relating to the Make Good Escrow Stock (including the provisions relating to the Company’s consolidated Pre-Tax Income and Required Pre-Tax Income Per Share for the fiscal year ending December 31, 2009) shall remain in full force and effect.

3. Acknowledge that it has been afforded ample opportunity to review and evaluate this Release and Waiver prior to the date hereof and that it has been represented and assisted by counsel for that purpose.

4. Acknowledge and agree that it is entering into this Release and Waiver freely and voluntarily, without duress or coercion of any kind, and as an informed and well-reasoned exercise of its business judgment.

IN WITNESS WHEREOF, the undersigned Releasor has caused this Release and Waiver to be duly executed by its authorized officer as of the date first written above.

RELEASOR: BARRON PARTNERS L.P.

By: /s/ Andrew Barron Worden

Name: Andrew Barron Worden

Title: Managing Partner

EX-10.3 4 exhibit10_3.htm EXHIBIT 10.3 exhibit10_3.htm

Exhibit 10.3

WAIVER AND RELEASE

WHEREAS, under the terms of the Registration Rights Agreement the Company was required, among other things, to:

(1) prepare and file with the Securities and Exchange Commission (the “SEC”) prior to March 26, 2008 an initial registration statement covering the resale of the shares of the Common Stock of the Company issuable upon conversion of the Series B Stock and upon exercise of the warrants issued to the Investors under the Stock Purchase Agreement; and

(2) use its commercially reasonable best efforts to have an initial registration statement declared effective by the SEC within 120 days following the filing date;

WHEREAS, all capitalized terms used herein, which are not otherwise defined herein, shall have the meanings ascribed to them in the Stock Purchase Agreement.

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Investor hereby agrees to and does hereby:

2. Irrevocably waive any right to receive any Make Good Escrow Stock solely as a result of, and to the extent that, such Make Good Escrow Stock would be deliverable to the Investors because Pre-Tax Income Per Share for the Company’s fiscal year ending December 31, 2009 (for purposes of determining whether the Company has achieved its Target Number for such fiscal year), is reduced as a result of any reduction in net income available to common stockholders for such fiscal year and an increase in the weighted average number of shares of Common Stock outstanding during the period due to the issuance and delivery to the Investors of New Warrants in exchange for the February 2008 Warrants. Except as and to the extent waived pursuant to the immediately preceding sentence, the provisions contained in the Stock Purchase Agreement relating to the Make Good Escrow Stock (including the provisions relating to the Company’s consolidated Pre-Tax Income and Required Pre-Tax Income Per Share for the fiscal year ending December 31, 2009) shall remain in full force and effect.

IN WITNESS WHEREOF, the undersigned Releasor has caused this Release and Waiver to be duly executed by its authorized officer as of the date first written above.

RELEASOR: EOS HOLDINGS, LLC

By: /s/ Jon Carnes

Name: Jon Carnes

Title: President