Exhibit
10.67


 


SECOND OMNIBUS AMENDMENT


 


This
SECOND OMNIBUS AMENDMENT (this “Amendment”), dated as of July 30,
2009 (the “Effective Date”), by and among Averion International Corp., a
Delaware corporation (the “Company”), on the one hand, and (i) the
2007 Buyers (defined below) holding at least sixty six and two thirds percent
(66 2/3%) of the aggregate original principal amount of the 2007 Notes (defined
below) (a “2007 Required Majority”); and (ii) the 2008 Buyers
(defined below) holding at least sixty six and two thirds percent (66 2/3%) of
the aggregate original principal amount of the 2008 Notes (defined below) (a “2008
Required Majority”), on the other hand, amends those certain Notes (defined
below) entered into in connection with the 2007 Securities Purchase Agreement
(defined below) and 2008 Securities Purchase Agreement (defined below) between
the Company and each Buyer (defined below), as previously amended by that
certain Omnibus Amendment (the “First Amendment”) dated March 13,
2008 (the “First Amendment Effective Date”).  Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the 2007 Securities Purchase
Agreement or the 2008 Securities Purchase Agreement, as applicable.


 


RECITALS


 


WHEREAS, the Company,
on the one hand, and certain buyers, on the other hand (the “Initial 2007
Buyers”), previously entered into that certain Securities Purchase
Agreement by and among the Company and the 2007 Buyers dated as of October 31,
2007 (the “2007 Securities Purchase Agreement”), pursuant to which the
Company sold Twenty Four Million Dollars ($24,000,000) of senior secured notes
to the Initial Buyers (the “Initial 2007 Notes”) and issued an aggregate
of one hundred fifteen million two hundred thousand (115,200,000) shares of the
Company’s common stock to the Initial 2007 Buyers;


 


WHEREAS, the Company,
on the one hand, and certain additional buyers, on the other hand (the “Additional
2007 Buyers,” and together with the Initial 2007 Buyers, the “2007
Buyers”), previously entered into that certain Amendment to Securities
Purchase Agreement and Joinder Agreement dated as of November 5, 2007,
pursuant to which the Company sold an additional Two Million Dollars
($2,000,000) of senior secured notes to the Additional 2007 Buyers (the “Additional
2007 Notes,” and together with the Initial 2007 Notes, the “2007 Notes”)
and issued an aggregate of nine million six hundred thousand (9,600,000) shares
of the Company’s common stock to the Additional 2007 Buyers;


 


WHEREAS, the Company,
on the one hand, and certain additional buyers, on the other hand (the “2008
Buyers,” and together with 2007 Buyers, the “Buyers”), previously
entered into that certain Securities Purchase Agreement by and among the
Company and the 2008 Buyers dated as of June 27, 2008 (the “2008 Securities Purchase Agreement”),
pursuant to which the Company sold an additional Two Million Dollars
($2,000,000) of senior secured notes to the 2008 Buyers (the “2008 Notes”)
and issued an aggregate of nine million six hundred thousand (9,600,000) shares
of the Company’s common stock to the 2008 Buyers;


 


WHEREAS, the Company,
the 2007 Buyers and the 2008 Buyers previously entered into the First Amendment
pursuant to which: (A) the Company and a 2007 Required Majority amended Section 4(h) of
the 2007 Securities Purchase Agreement to reflect that the Transaction Fee due
to the 2007 Buyers upon the one (1) year anniversary of their respective
Closing Dates was to be paid on March 13, 2008, at the option of each 2007
Buyer, either by: (i) paying to each 2007 Buyer an amount of cash equal to
such 2007 Buyer’s Transaction Fee amount, or (ii) by issuing to each 2007
Buyer, in lieu of a cash payment equal to such 2007 Buyer’s Transaction Fee
amount, a new senior secured note in principal amount equal to three percent
(3%) of the Purchase Price of such 2007 Buyer’s Note and on the same terms and
conditions as the 2007 Notes (the “New Notes, “and together with the
2007 Notes and the 2008 Notes, the “Notes”); and (B) the Company, a
2007 Required Majority and a 2008 Required Majority amended: (i) Section 4
of each Note to provide that the Quarterly Interest Payments for the calendar
quarters 


 

















 


commencing on October 1, 2008 and January 1, 2009 shall be
due and payable by the Company to each Buyer on June 30, 2009; and (ii) provided
that for a period of one (1) year after the First Amendment Effective
Date, each Buyer waived any and all right to a Mandatory Prepayment Upon a
Financial Covenant Test Failure as set forth in the Notes and waived any and all
rights and remedies arising from any Financial Covenant Test Failure as set
forth in the Notes, including, without limitation, rights and remedies arising
if: (A) the Revenue Ratio is less than the Required Revenue Ratio; (B) the
Net Book-to-Bill Ratio is less than the Required Net Book-to-Bill Ratio, (C) the
EBITDA Ratio is less than the Required EBITDA Ratio, or (D) the Cash and
Cash Equivalents are less than the Required Cash Amount (each as defined in the
Notes);


 


WHEREAS, as of June 30,
2009, the Company owed an aggregate of One Million Nine Hundred Fifty Two
Thousand Seven Hundred Sixty Dollars ($1,952,760) to the Buyers for Quarterly
Interest Payments that had not been paid by the Company in accordance with the
terms of the First Amendment (the “Past Interest Amount”);


 


WHEREAS, the Company,
a 2007 Required Majority and a 2008 Required Majority now desire to: (i) provide
that the Past Interest Amount shall be paid to the Buyers, on a pro rata basis,
as follows: (i) Five Hundred Fifty Four Thousand Four Hundred Twelve
Dollars ($554,412) on or before July 31, 2009; (ii) Six Hundred
Ninety Two Thousand Thirty Nine Dollars ($692,039) on or before August 31,
2009; and (iii) Seven Hundred Six Thousand Three Hundred Nine Dollars
($706,309) on or before September 28, 2009, such that, on September 28,
2009, the Past Interest Amount shall be paid in full and in full satisfaction
of the Past Interest Amount, it being understood that no additional interest
shall accrue on the Past Interest Amount prior to its repayment; and (ii) waive
any all rights and remedies with respect to any existing payment default under
the Notes, including, without limitation, with respect to the Past Interest
Amount;


 


WHEREAS, the Company,
a 2007 Required Majority and a 2008 Required Majority also desire, subject to
the terms and conditions of the Interest Payment Plan,  to: waive any and all rights and remedies with
respect to any payment default under any Note that may occur prior to October 1,
2009 and further waive any and all other rights and remedies arising therefrom;
and


 


WHEREAS,  (i) pursuant to Section 6 of each 2007 Note, the
Company and a 2007 Required Majority must consent to any amendment or waiver to
the 2007 Notes, with any such amendment or waiver approved by the 2007 Required
Majority binding on all 2007 Buyers; and (ii) pursuant to Section 6
of each 2008 Note, the Company and a 2008 Required Majority must consent to any
amendment or waiver to the 2008 Notes, with any such amendment or waiver approved
by the 2008 Required Majority binding on all 2008 Buyers.


 


NOW
THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:


 


A M E N D M E N T


 


1.                                       Amendments to
Notes.


 


a.             Interest Payment Plan.  The Company shall pay the Past Interest
Amount to the Buyers, on a pro rata basis, as follows: (i) Five Hundred
Fifty Four Thousand Four Hundred Twelve Dollars ($554,412) on or before July 31,
2009; (ii) Six Hundred Ninety Two Thousand Thirty Nine Dollars ($692,039) on
or before August 31, 2009; and (iii) Seven Hundred Six Thousand Three
Hundred Nine Dollars ($706,309) on or before September 28, 2009, such
that, on September 28, 2009, the Past Interest Amount shall be paid in
full and in full satisfaction of 


 


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the Past Interest Amount, it being understood that no additional
interest shall accrue on the Past Interest Amount during such payment period.


 


b.             Waiver of Payment Defaults and Remedies.  Each Buyer hereby waives any all rights and
remedies with respect to any existing payment default under the Notes,
including, without limitation, with respect to the Past Interest Amount.  In addition, each Buyer hereby waives any and
all rights with respect to any payment default under any Note that may occur
prior to October 1, 2009 and further waives any and all other rights and
remedies arising there from provided all amounts due pursuant to the Interest Payment
Plan in paragraph 1 a. above are timely paid.


 


2.                                       Full Force and
Effect.  Except as modified above, all
other terms and provisions of the Notes shall remain in full force and effect
in accordance with their terms.


 


3.                                       Miscellaneous.


 


a.             Agreement Amended.  Subject to the provisions of this Section 3,
this Amendment shall be deemed to be an amendment to the Notes.  All references to the Notes in any other
document, instrument, agreement or writing hereafter shall be deemed to refer
to the Notes as amended hereby.  In the
event of a conflict between the terms of the Notes and this Amendment, the
terms of this Amendment shall control.


 


b.             Successors and Assigns.  This Amendment shall be binding upon and
inure to the benefit of the Company, the Buyers and their respective successors
and assigns.


 


c.             Governing Law. 
This Amendment and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the laws of the State of
New York, without regard to conflict of laws principles.


 


d.             Counterparts. 
This Amendment may be executed in multiple counterparts, each of which
shall be deemed an original and together shall constitute one document.  This Amendment may be executed and
transmitted via facsimile or electronic transmission in PDF form with the same
validity as if it were an ink-signed document.


 


[Remainder of Page Intentionally Left Blank]


 


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IN
WITNESS WHEREOF, the Company, a 2007 Required Majority and a 2008
Required Majority have caused this SECOND OMNIBUS AMENDMENT to be duly executed
as of the Effective Date.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AVERION INTERNATIONAL CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence R.
  Hoffman

  
	
   

  	
  Name: Lawrence R. Hoffman

  
	
   

  	
  Title: Chief Financial Officer

  



 


[Company Signature Page to Second
Omnibus Amendment]


 

















 


	
   

  	
  BUYERS:

  
	
   

  	
   

  
	
   

  	
  Executed with respect to all Notes held by such
  Buyer:

  
	
   

  	
   

  
	
   

  	
  COMVEST INVESTMENT PARTNERS II LLC,  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cecilio
  Rodriguez

  
	
   

  	
  Name:

  	
  Cecilio
  Rodriguez

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  
	
   

  	
  CUMULUS INVESTORS, LLC,  a Nevada limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mohammad
  Garib

  
	
   

  	
  Name:

  	
  Mohammad Garib

  
	
   

  	
  Title:

  	
  Manager

  
	
   

  	
   

  
	
   

  	
  /s/ Philip T. Lavin, P.H.D.

  
	
   

  	
  PHILIP T. LAVIN, PH.D., in his
  individual capacity

  
	
   

  	
   

  
	
   

  	
  /s/ Dr. Gene Resnick

  
	
   

  	
  DR. GENE RESNICK, in his individual
  capacity

  
	
   

  	
   

  
	
   

  	
  MICROCAPITAL FUND, LTD.,  a Cayman-domiciled investment corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tim Creutz

  
	
   

  	
  Name:

  	
  Tim Creutz

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  MICROCAPITAL FUND LP,  a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tim Creutz

  
	
   

  	
  Name:

  	
  Tim Creutz

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


[Buyer Signature Page to Second
Omnibus Amendment]