Exhibit 10.1
WAIVER AGREEMENT
THIS WAIVER AGREEMENT (this "Agreement"), dated as of February 19, 2007, by and
among ISONICS CORPORATION, a California corporation (the "Company"), and Cornell
Capital Partners, L.P. (individually, a "Buyer" or collectively "Buyers" and
itself the holder of more than a majority of the Registrable Securities, the 6%
Debentures, and the Warrants (all as defined below)).
WITNESSETH
WHEREAS, the Buyers purchased 6% convertible debentures aggregating $16,000,000
in principal amount (the "6% Debentures") on and after May 30, 2006.
WHEREAS, the agreements by which the Buyers purchased such debentures and
received certain common stock purchase warrants exercisable at $2.00 per share
($8.00 post reverse-stock split ("post-split"), $1.75 per share ($7.00
post-split), and $1.25 ($5.00 post-split) per share (collectively the "6%
Debenture Warrants") imposed certain obligations upon the Company which the
Company has attempted to meet in good faith and using its best efforts.
WHEREAS, certain of the Company's efforts have been frustrated by regulatory
interpretations, and the Buyers are willing to waive certain compliance
requirements.
WHEREAS, the parties also wish to enter into other agreements to facilitate the
Company's continuing operations.
NOW, THEREFORE, in consideration of the mutual covenants and other agreements
contained in this Agreement and for other good and valuable consideration, the
receipt and adequacy whereof is hereby acknowledged, the Company and the
Buyer(s) hereby agree as follows:
1.
WAIVERS AND AGREEMENTS
(A)
SECTION 4(E) OF THE SECURITIES PURCHASE AGREEMENT DATED MAY 30,
2006 TO WHICH THE COMPANY AND THE BUYER(S) WERE A PARTY (THE "SPA"), SECTION
3(D)(I) OF THE 6% DEBENTURES, AND SECTION 3(C) OF THE 6% DEBENTURE WARRANTS
REQUIRED THAT (AMONG OTHER THINGS), NO LATER THAN DECEMBER 31, 2006, THE COMPANY
SHALL TAKE ALL ACTION REASONABLY NECESSARY TO RESERVE SUCH NUMBER OF SHARES OF
COMMON STOCK AS SHALL BE NECESSARY TO EFFECT THE ISSUANCE OF THE CONVERSION
SHARES (AS DEFINED IN THE SPA).
THE BUYER(S) ACKNOWLEDGES THAT THIS ACTION WAS
NOT TAKEN PRIOR TO DECEMBER 31, 2006, BUT WAS TAKEN ON JANUARY 4, 2007.
THE
BUYER(S) ACKNOWLEDGES THAT THIS RESERVATION WAS ACCOMPLISHED AND WAIVES THE
DECEMBER 31, 2006 COMPLIANCE PERIOD.
(B)
SECTION 4(F) OF THE SPA REQUIRED THAT (AMONG OTHER THINGS), THE
COMPANY SHALL MAINTAIN THE AUTHORIZATION FOR QUOTATION ON THE NASDAQ CAPITAL
MARKET OF THE COMPANY'S NO PAR VALUE COMMON STOCK (THE "COMMON STOCK").
THE
BUYER(S) ARE AWARE THAT THE COMPANY HAS RECEIVED A STAFF DETERMINATION LETTER
ADVISING THE COMPANY THAT ITS COMMON STOCK IS SUBJECT TO DE-LISTING FROM THE
NASDAQ CAPITAL MARKET.
THE BUYER(S) UNDERSTAND THAT THE COMPANY HAS APPEALED
THAT DETERMINATION PURSUANT TO THE NASDAQ MARKETPLACE RULES, BUT THE
1
COMPANY CANNOT OFFER ANY ASSURANCE THAT IT WILL BE SUCCESSFUL IN MAINTAINING
SUCH LISTING.
THE BUYER(S) WAIVES THE REQUIREMENT IN SAID SECTION 4(F) THAT THE
COMPANY MUST MAINTAIN THE LISTING OF ITS COMMON STOCK ON THE NASDAQ CAPITAL
MARKET, BUT RETAINS THE REQUIREMENT THAT THE COMPANY MUST USE ITS BEST EFFORTS
TO MAINTAIN SUCH LISTING AND, IF THE COMPANY LOSES ITS NASDAQ CAPITAL MARKET
LISTING, THE COMPANY AGREES TO BE