EXHIBIT 10.01
AMENDMENT AND FEE WAIVER
AGREEMENT
This Amendment and Fee Waiver
Agreement dated as of November 23, 2005 (the “Amendment and
Fee Waiver Agreement”) is entered into by and between
Windswept Environmental Group, Inc., a Delaware corporation (the
“Borrower”), and Laurus Master Fund, Ltd., a Cayman
Islands company (“Laurus”), and is effective as of
November 23, 2005. Capitalized terms used herein without definition
shall have the meanings ascribed to such terms in the Securities
Purchase Agreement (as defined below) and the Note (as defined
below).
WHEREAS, the Borrower filed a
registration statement on October 3, 2005 (as amended, modified or
supplemented, the “Registration Statement”), in order
to register certain shares of the Borrower’s Common Stock (as
amended, modified or supplemented, the “Common Stock”)
underlying (a) an Amended and Restated Secured Convertible Term
Note the Borrower issued to Laurus on October 6, 2005 in the
aggregate original principal amount of $7,350,000 (as amended,
modified or supplemented, the “Note”) pursuant to the
terms of the Securities Purchase Agreement, dated as of June 30,
2005 between the Borrower and Laurus (as amended, modified or
supplemented, the “Securities Purchase Agreement” and
together with the Related Agreements as defined therein, the
“Loan Documents”); (b) a warrant issued by the Borrower
to Laurus on June 30, 2005 to purchase 13,750,000 shares of the
Common Stock (as amended, modified or supplemented, the
“Warrant”); and (c) an option issued by the Borrower to
Laurus on June 30, 2005 to purchase 30,395,179 shares of Common
Stock (as amended, modified or supplemented, the
“Option”);
WHEREAS, pursuant to Section 3.7 of
the Note, the Borrower is obligated to reserve from its authorized
and unissued shares of Common Stock a sufficient number of shares
to provide for the issuance of shares upon the full conversion
and/or exercise of the Warrant, the Option and the Note after the
earlier to occur of (x) December 31, 2005 and (y) the date of the
Borrower’s next shareholder's meeting (the “Additional
Authorization Date”);
WHEREAS, the Borrower, issued
1,500,000 shares of Common Stock to Laurus on September 12, 2005
pursuant to its partial exercise of the Option;
WHEREAS, pursuant to Section 6 of
the Option, the Borrower is obligated to reserve from its
authorized and unissued Common Stock a sufficient number of shares
to provide for the issuance of shares upon the full exercise of the
Option, after the Additional Authorization Date;
WHEREAS, pursuant to Section 6 of
the Warrant, the Borrower is obligated to reserve from its
authorized and unissued Common Stock a sufficient number of shares
to provide for the issuance of shares upon the full conversion of
the Warrant, after the Additional Authorization Date;
WHEREAS, the Borrower entered into a
securities purchase agreement with Laurus on June 30, 2005 (the
“Securities Purchase Agreement”) to set forth, among
other things, the terms of the issuance of the Note, the Option and
the Warrant;
WHEREAS, pursuant to Section 4.3(d)
of the Securities Purchase Agreement, the Borrower is obligated to
reserve from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of shares upon the
full conversion and/or exercise of the Note, the Warrant and the
Option, after the Additional Authorization Date;
WHEREAS, Laurus has agreed to extend
the Additional Authoriz
