Waiver of Certain Rights of Series A Convertible Preferred Stockholders of BEI Medical Systems Company, Inc.

Summary

This agreement is between BEI Medical Systems Company, Inc. and the majority holders of its Series A Convertible Preferred Stock. The stockholders agree to waive their right to receive preferential payments if the company is acquired without approval from the Board of Directors. The waiver applies to current and future holders of these shares, and share certificates may be marked to reflect this change. The agreement is effective as of December 13, 2001, and is governed by Delaware law.

EX-10.44 3 gex10_44-26697.txt EX-10.44 Exhibit 10.44 WAIVER OF CERTAIN RIGHTS OF THE SERIES A CONVERTIBLE PREFERRED STOCK OF BEI MEDICAL SYSTEMS COMPANY, INC. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned Series A Convertible Preferred stockholders of BEI Medical Systems Company, Inc., a Delaware corporation (the "COMPANY"), constituting holders of a majority of the outstanding shares of the Company's Series A Convertible Preferred Stock, in accordance with Section 2(b)(ii) of that certain Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock of the Company filed with the Secretary of State of the State of Delaware on February 12, 2001 (THE "CERTIFICATE OF DESIGNATIONS"), hereby agree as follows: 1. WAIVER. The undersigned hereby waive the right to receive any preferential payment upon the occurrence of an Acquisition (as that term is defined in Section 3(c)(i) of the Certificate of Designations) which was not approved by the Board of Directors of the Company. 2. LEGEND. The undersigned hereby agree on their own behalf and on the behalf of their successors in interest, that any certificate representing shares of the Series A Convertible Preferred Stock may bear a legend reflecting this Waiver. 3. CONSTRUCTION. This Waiver shall be construed in accordance with the laws of the State of Delaware, excluding conflicts of laws principles. 4. COUNTERPARTS. This Waiver may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one instrument. IN WITNESS WHEREOF, the undersigned have executed this Waiver effective as of December 13, 2001. By: /s/ Jan Rock ------------------------------------------- Name: Jan Rock ----------------------------------------- Title: Managing Member, Medcapital, LLC ---------------------------------------- Shares of Series A Preferred Stock Owned: 133,333 By: Delta Opportunity Fund, Ltd. By: Diaz & Altschul Advisors, LLC As Investment Advisor Name: Christopher S. Mooney ----------------------------------------- /s/ Christopher S. Mooney Title: CFO Shares of Series A Preferred Stock Owned: 80,000 By: Delta Opportunity Fund (Institutional), LLC By: Diaz & Altschul Advisors, LLC As Investment Advisor Name: Christopher S. Mooney ----------------------------------------- /s/ Christopher S. Mooney Title: CFO Shares of Series A Preferred Stock Owned: 55,334 By: /s/ Jordan Davis ------------------------------------------- Name: Jordan Davis ----------------------------------------- Title: Radius Venture Partners ---------------------------------------- Managing Partner Shares of Series A Preferred Stock Owned: 533,334 By: /s/ Robert P. Khederian ------------------------------------------- Name: Robert P. Khederian ----------------------------------------- Title: Individual ---------------------------------------- Shares of Series A Preferred Stock Owned: 234,483