Exhibit 10.109
CONSENT AND WAIVER
This consent and waiver is given on
April 22, 2006 by Castle Creek Technology Partners LLC
(“ CC ”) to and with regard to Path 1 Network
Technologies Inc. (“ Path 1 ”). CC holds 476,927
shares of Path 1’s Series B 7% Convertible Preferred Stock
(“ Series B Preferred Stock ”) and 246,154 Path
1 common stock warrants, acquired pursuant to a Securities Purchase
Agreement dated April 26, 2005 among Path 1, CC and others
(the “ Purchase Agreement ”). This consent and
waiver relates to Path 1’s proposed April 2006
revolving-line-of-credit-plus-warrants financing transaction (the
“ Transaction ”) with Laurus Master Fund,
Ltd.
1. CC, on its own behalf and as the
holder of a majority of Path 1’s outstanding Series B
Preferred Stock and as the holder of a majority in interest of the
outstanding Registrable Securities (on an as-converted/as-exercised
basis, as defined in the Purchase Agreement), hereby
(a) Consents under Section 10
of Path 1’s Series B Preferred Stock’s certificate of
designations (the “ Certificate ”) to the
consummation of the Transaction and the issuance of the securities
contemplated by the Transaction (including, without limitation, any
shares issued in the future upon exercise of Transaction warrants).
It is understood that, if and to the extent the consummation of the
Transaction and the issuance of the securities require the consent
of a majority of the Series B Preferred Stock pursuant to the
Certificate, this consent and waiver shall constitute such
consent.
(b) Waives, pursuant to
Section 8.3 of the Purchase Agreement any application of
Section 3.7 of the Purchase Agreement to the Transaction and
to the issuance of the securities contemplated by the Transaction
(including, without limitation, any shares issuable or issued in
the future upon exercise of Transaction warrants (inclusive of the
warrants themselves, the “ Warrant Shares ”)).
It is understood that, if and to the extent the consummation of the
Transaction and the issuance of the securities contemplated by the
Transaction (including, without limitation, any Warrant Shares)
require the consent of a majority in interest of the outstanding
Registrable Securities (on an as-converted/as-exercised basis, as
defined in the Purchase Agreement) pursuant to the Purchase
Agreement, this consent and waiver shall constitute such
consent.
(c) Waives and renounces any
antidilution adjustments to which CC (or CC’s assignees) may
be entitled pursuant to CC’s Series B Preferred Stock and
related warrants (“ Preferred Securities ”) to
the extent (and only to the extent) that such antidilution
adjustments are or may in the future be triggered by any
of:
(i) the consummation of the
Transaction and the issuance of the Warrant Shares);
(ii) the extension of the new rights
described herein to any of the other holders of Preferred
Securities or other Preferred Stock or warrants;
(iii) the issuance of any new Path 1
securities to any of the other holders of Preferred Securities
pursuant to the terms and conditions hereof; and
(iv)
