Exhibit 10.1
March 5, 2009
Dutchess Private
Equities Fund, Ltd.
50 Commonwealth
Avenue
Boston, Massachusetts
02116
Re: Waiver of
Certain Events of Default and Covenants in the Transaction
Documents
Ladies and
Gentlemen:
Reference is hereby made
to: (i) the Debenture Agreement, dated as of July 14, 2006 (the
“ 2006 Debenture ”), by and among SimplaGene
USA, Inc., later renamed Dinewise, Inc., (“ Company
”), Dutchess Private Equities Fund, LP (“ Dutchess
I ”) and Dutchess Private Equities Fund, II, LP (“
Dutchess II ” and collectively with Dutchess I, the
“ Lender ”); (ii) the Debenture Agreement, dated
as of February 16, 2007, as amended to date, by and among the
Company and Dutchess I (the “ 2007 Debenture ”
and collectively with the 2006 Debenture, the “
Debentures ”); (iii) the Subscription Agreement, dated
as of July 14, 2006, by and among the Company and the Lender (the
“ Subscription Agreement ”); (iv) the Debenture
Registration Rights Agreement, dated as of July 14, 2006, by
and among the Company and the Lender (the “ Debenture
Registration Rights Agreement ”); and (v) any and all
other documents and agreements executed in connection with the
transactions contemplated by the Debentures (collectively with the
Debentures, the Subscription Agreement and the Debenture
Registration Rights Agreement, the “ Transaction
Documents ”). Capitalized terms used but not
defined in this waiver letter shall have the meanings assigned to
those terms in the Transaction Documents.
Company’s Listing and
Reporting Obligations:
Pursuant to the terms of
the Transaction Documents, the Company is generally obligated to
maintain the listing of the Company’s Common Stock on a
national securities exchange, on an automated quotation system, or
on the pink sheets if the Company continues to file all reports
required to be filed were its Common Stock listed on the
over-the-counter bulletin board, file all reports required to be
filed with the SEC and comply with the rules and regulations of the
Sarbanes-Oxley Act of 2002 (“ S-OX ”) (the
“ Listing and Reporting Obligations
”).
The Company’s
Listing and Reporting Obligations include, but are not limited to,
the following covenants and Event of Default:
(i) Section 4(c) of the
Subscription Agreement requires the Company to file all reports
required to be filed with the SEC pursuant to the Securities
Exchange Act of 1934 (the “ 1934 Act ”) and to
maintain its status as a reporting company under the 1934
Act.
(ii) Section 3(w) of the
Subscription Agreement requires the Company to file all reports
required to be filed under S-OX and to remain compliant with S-OX
and its rules and regulations.
(iii) Section 4(f) of the
Subscription Agreement requires the Company to make available to
the Lender certain financial information.
(iv) Section 4(h) of the
Subscription Agreement requires the Company to maintain the listing
of the Company’s Common Stock on a national securities
exchange and an automated quotation system.
