Exhibit 10.1


 





 


FIFTH AMENDMENT TO AMENDED AND RESTATED


REVENUE SHARING AND NOTE PURCHASE AGREEMENT


 


This FIFTH AMENDMENT
TO AMENDED AND RESTATED REVENUE SHARING AND NOTE PURCHASE AGREEMENT (this “Fifth Amendment”) is dated as of
September 26, 2016 among Inventergy Global, Inc., a Delaware corporation (“Parent”), Inventergy, Inc. (“Owner”,
and, collectively, the “Company”), DBD Credit Funding, LLC as collateral agent (the “Collateral Agent”),
and the Revenue Participants and Note Purchasers (collectively, the “Purchasers”) thereto, and amends that certain
Amended and Restated Revenue Sharing and Note Purchase Agreement between the Company, the Collateral Agent and the Purchasers originally
dated as of October 1, 2014 and amended and restated as of February 25, 2015, and further amended as of October 30, 2015, as of
November 30, 2015 as of March 1, 2016 and as of August 19, 2016 (such Agreement, as amended hereby and as may be further amended,
supplemented or otherwise modified and in effect from time to time, the “Agreement”). Capitalized terms used
and not otherwise defined in this Fifth Amendment shall have the meanings specified in the Agreement.


 


WHEREAS, the Company and the Purchasers are
in discussions relating to a possible restructuring of the obligations provided under the Agreement. In light of those discussions
and in order to permit sufficient time for such parties to reach agreement on the terms of such restructuring and, subject to
agreement being reached, to implement such restructuring, the Company has requested (i) that no amortization payments shall be
due and payable until October 30, 2016 and (ii) that the Liquidity maintenance requirement of not less than One Million Dollars
($1,000,000) be waived through October 30, 2016.


 


WHEREAS, the Purchasers are prepared to agree
to the Company’s requests subject to the terms and conditions set forth herein.


 


NOW THEREFORE, in consideration
of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:


 


Section
1. Amendments. The Agreement shall be amended as follows:


 


1.01.          
Amortization. Section 2.2.4.3 of the Agreement shall be amended and restated as follows:


 


“2.2.4.3
Amortization. Commencing on October 30, 2016, the Company shall make monthly amortization payments on the Notes in an amount,
as of the date of such payment, equal to (x) the then outstanding principal amount divided by (y) the number of months left until
the Maturity Date. The amount of the monthly amortization payment shall be calculated by the Company, and provided to the Collateral
Agent for review, initially prior to the first such payment and recalculated following any optional or mandatory prepayment”.


 






     


     


    

 


1.02.          
Disposition. Section 6.9.1 of the Agreement shall be amended and restated as
follows: 


 


“6.9.1. 
Dispositions.  The Company shall not make any Disposition of any Patents or of any equity interests in Owner other
than (i) entering into settlement agreements or non-exclusive licensing arrangements with respect to the Patents in pursuit of
the Monetization Activities, (ii) sales of the Company’s proprietary hardware and software products in the ordinary course
of business provided, for the avoidance of doubt, that no such arrangements shall permit the use of any Patents other than
as required for the sale of such products; (iii) the entry into exclusive license agreements or sales of Patents with the written
consent of the Majority Purchasers, such consent not to be unreasonably withheld, conditioned or delayed; and (iv) prior to December
2, 2015, the entry into contingency, revenue sharing or profit sharing arrangements with additional law firms, consultants or other
professionals to the extent such arrangements are not inconsistent with the Purchasers’ rights in respect of the Monetization
Revenues hereunder.  For the avoidance of doubt, prior to September 26, 2016, nothing in the foregoing shall be construed
to prohibit Company from replacing or dividing existing agreements under substantially equivalent, or more favorable to the Company,
financial and other terms than the Existing Encumbrances or such existing agreements.  Without limiting the foregoing, from
September 26, 2016 through October 30, 2016 (and thereafter during the pendency of any Default or Event of Default), the Company
shall not (w) make any Disposition of any Patents or of any equity interests in Owner, (x) shall not commence any new litigation
or take any other material action in furtherance of Monetization Activities, (y) engage any broker or other professional in connection
with any sale or other Disposition of any Patent or rights therein, or enter into any arrangements that provide any party with
a right to payment based on the Company’s receipt of Monetization Revenues (including any contingency fee arrangements) or
(z) grant any Lien or other rights with respect to any Patents, including, without limitation, non exclusive licensing arrangements,
exclusive licensing arrangements or sales of Patents or interests therein, in each case, without the prior written consent of the
Majority Purchasers, which consent may be granted or withheld in their sole discretion.  For the avoidance of doubt, proceeds
of any Disposition of any Patents, or of any equity interest in Owner, shall constitute Monetization Revenues and shall be distributed
in accordance with Section 2.9.”


 


 


1.03.                
Minimum Liquidity. Section 6.10 of the Agreement shall be amended and restated as follows:


 


“6.10
Minimum Liquidity. The Company shall maintain not less than (x) One Million Dollars ($1,000,000) in unrestricted cash and
Cash Equivalents (“Liquidity”) from the Closing Date through November 1, 2015, (y) Two Hundred Thousand Dollars
($200,000) in Liquidity from March 1, 2016 through June 30, 2016, and (z) One Million Dollars ($1,000,000) in Liquidity from and
after October 30, 2016, in each case not including amounts on deposit in the Cash Collateral Account except to the extent the Company
is entitled to such amounts and shall provide weekly certifications demonstrating the Company’s Liquidity. Commencing October
30, 2016, such certifications demonstrating the Company’s Liquidity shall be provided by 5:00 p.m. PST on each Friday (or,
if Friday is a bank holiday, on the immediately preceding day that is not a bank holiday), shall show Liquidity on that day and
shall be accompanied by evidence satisfactory to the Collateral Agent.


 






     


     


    

 


Section
2. Effectiveness.


 


The effectiveness of
this Fifth Amendment is subject to:


 


1.
the receipt by the Collateral Agent of the following: (i) fully executed copies of this Fifth
Amendment and (ii) an officer’s certificate from an Authorized Officer of the Company certifying that the representations
and warranties of the Company contained in this Agreement are true and correct as of the date hereof in all material respects,
and that there exists no Default or Event of Default, after giving effect to this Fifth Amendment; and


 


2.the
Company’s payment of all fees and expenses (including attorneys’ fees) to the extent invoiced on or before the date
hereof (including, without limitation, reasonable fees and disbursements of Ropes & Gray LLP) incurred by the Collateral Agent
in connection with the preparation, negotiation, execution and delivery of this Fifth Amendment or otherwise owing under the Agreement;
provided, that the Company agrees to promptly pay any additional such amounts invoiced following the effectiveness of the Fifth
Amendment.


 


Section
3. Miscellaneous. Except as specifically amended or waived above, the Agreement and the other Documents shall
remain unchanged and in full force and effect and are hereby ratified and confirmed. The execution, delivery and effectiveness
of this Fifth Amendment shall not operate as a waiver of any right, power or remedy of the Collateral Agent or any Purchaser under
the Agreement or any Document, nor constitute a waiver of any provision of the Agreement or any Document, except as specifically
provided by this Fifth Amendment. This Fifth Amendment is a Document, and a part of the Agreement, for all purposes of the Agreement.
This Fifth Amendment may be executed in any number of counterparts, and by different parties hereto on separate counterpart signature
pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of a counterpart
signature page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF”
file) shall be effective as delivery of a manually executed counterpart signature page. Section headings used in this Fifth Amendment
are for reference only and shall not affect the construction of this Fifth Amendment.


 




     


     


    

 


 


IN WITNESS WHEREOF, the
parties hereto have caused this Fifth Amendment to be duly executed and delivered as of the day and year first above written.


 





	 	Revenue Participant:
	 	 	 
	 	CF DB EZ LLC
	 	 	 
	 	/s/ Contantine M. Dakolias





	 	By:  	Constantine M. Dakolias




	 	Title:  	President





	 	 	 
	 	 	 
	 	Note Purchaser:
	 	 	 
	 	Drawbridge Special Opportunities Fund LP
	 	By: Drawbridge Special Opportunities GP LLC, its general partner
	 	 	 
	 	/s/ Contantine M. Dakolias





	 	By:  	Constantine M. Dakolias





	 	Title:	President












 


 


 


[Signature Page to Fifth Amendment]




     


     


    

 








	 	Collateral Agent:
	 	 
	 	DBD Credit Funding LLC
	 	 
	 	/s/ Contantine M. Dakolias
	 	By: Constantine M. Dakolias
	 	Title: President


 


 










 


[Signature Page to Fifth Amendment]




     


     


    

 





	 	Company:
	 	 	 
	 	INVENTERGY GLOBAL, INC.
	 	 	 
	 	/s/
Joseph W. Beyers 

	 	By:     	Joseph W. Beyers
	 	Title:  	Chief Executive Officer and Chairman
	 	 	 
	 	 	 
	 	INVENTERGY, INC.
	 	 
	 	/s/
Joseph W. Beyers 

	 	By:     	Joseph W. Beyers
	 	Title:	Chief Executive Officer and Chairman







 


 


 


[Signature Page to
Fifth Amendment]