Exhibit
10.1
SECOND MODIFICATION, WAIVER
AND ACKNOWLEDGEMENT AGREEMENT
This Second Modification, Waiver and
Acknowledgement Agreement (“Agreement”) dated as of
June 30, 2009 is entered into by and among Commonwealth
Biotechnologies Inc., a Virginia corporation (the
“Company”) and the subscribers identified on the
signature page hereto (each herein a “Subscriber” and
collectively “Subscribers” or the
“Parties”).
WHEREAS, the Company and the
Subscribers are parties to a Subscription Agreement
(“Subscription Agreement”) and other Transaction
Documents dated at and about December 31, 2007, as amended in
September, 2008, relating to an aggregate purchase by Subscribers
of $1,950,000 of principal amount of secured promissory notes (the
“Notes”) of the Company convertible into shares of the
Company’s no par value common stock and Warrants exercisable
for Common Stock; and
WHEREAS, the Company and Subscribers
desire to further restructure the terms of the Transaction
Documents to their mutual benefit.
NOW THEREFORE, in consideration of
the mutual covenants and other agreements contained in this
Agreement, the Company and the Subscribers hereby agree as
follows:
1. Capitalized terms employed herein
shall have the meanings attributed to them in the Transaction
Documents.
2. The Maturity Date of the Notes,
which are due to mature on July 31, 2009 is extended to
January 1, 2010.
3. The Company undertakes to use its
best efforts to promptly file a proxy statement for shareholder
approval to reduce the Conversion Price of the Notes to $0.50 and
to authorize the issuance of all shares of common stock underlying
the Notes and Warrants. In the event shareholder approval is not
obtained, the Conversion Price will not be reduced to $0.50 and all
terms of the Notes and Warrants will remain in full force and
effect except as modified by this Agreement.
4. All interest which has accrued
through June 30, 2009 shall be deferred until
September 30, 2009 and shall be payable pursuant to the terms
of the Notes.
5. The Company acknowledges that the
holding period of the Notes, Warrants and Common Stock issuable
upon conversion of the Notes commenced on December 31, 2007,
for purposes of Rule 144 under the Securities Act of
1933.
6. The Subscribers waive any reset
of the Purchase Price of the Class A and Class B Warrants
which may be triggered solely in connection with the terms of this
Agreement.
7. The Company undertakes to make a
public announcement on Form 8-K describing the terms of this
Agreement not later than the fourth business day after the
execution of this Agreement.
8. The obligations of each
Subscriber hereunder are several and not joint with the obligations
of any other Subscribers hereunder, and no Subscriber shall be
responsible in any way for the performance of the obligations of
any other Subscriber hereunder. Nothing contained herein or in any
other agreement or document delivered at any closing, and no action
taken by any Subscriber pursuant hereto, shall be deemed to
constitute the Subscribers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption
that the Subscribers are in any way acting in concert with respect
to such obligations or the transactions contemplated by this
Agreement. Each Subscriber shall be entitled to protect and enforce
its rights, including without limitation the rights arising out of
this Agreement, and it shall not be necessary for any other
Subscriber to be joined as an additional party in any proceeding
for such purpose, except as otherwise agreed by the
Subscribers.
9. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns
of ea
