Contract
THIS AMENDMENT AGREEMENT (the
“Amendment”),
is made as of this 24th day of December, 2008 by and among Adrenalina, a Nevada
corporation (the “Company”) and each of
the undersigned investors (the “Holders”). Defined
terms not otherwise defined herein shall have the meanings set forth in the
applicable Purchase Agreement (as defined below).
WHEREAS, pursuant to a
Securities Purchase Agreement dated July 21, 2008 (the “Common
Stock and Warrant Purchase Agreement”), the Company issued the Holders
shares of Common Stock and warrants (the “July
Warrants”) exercisable for shares of Common Stock;
WHEREAS, pursuant to
Securities Purchase Agreements, dated November 29, 2007, February 28, 2008 and
August 22, 2008, (each, a “Debenture
and Warrant Purchase Agreement”, and collectively, the “Debenture
and Warrant Purchase Agreements”, and together with the Common Stock and
Warrant Purchase Agreement, the “Purchase
Agreements”), among the Company and the Holders, the Holders purchased
from the Company 5% Senior Secured Convertible Debentures (the “Debentures”)
and warrants exercisable for shares of Common Stock (such warrants, together
with the July Warrants, the “Warrants”);
WHEREAS, the parties hereto
desire to amend certain provisions of the Debentures and Warrants pursuant to
the terms hereunder;
NOW,
THEREFORE, in consideration of the mutual premises and agreements contained
herein, and intending to be legally bound hereby, the undersigned parties hereby
agree as follows:
1. The
definition of “Monthly Redemption Date” in Section 1 of each Debenture issued
pursuant to the November 29, 2007 Debenture and Warrant Purchase Agreement and
February 28, 2008 Debenture and Warrant Purchase Agreement is hereby deleted and
replaced in its entirety with the following:
“Monthly Redemption
Date” means the 1st of each month, commencing immediately upon July 1,
2009, and terminating upon the full redemption of this Debenture.”
2. The
date in the definition of “Maturity Date” in the first sentence of the second
paragraph of the Debentures issued pursuant to the November 29, 2007 Debenture
and Warrant Purchase Agreement which reads “May 29, 2010” is hereby amended and
replaced with “December 1, 2010”.
3. The
date in the definition of “Maturity Date” in the first sentence of the second
paragraph of the Debentures issued pursuant to the February 28, 2008 Debenture
and Warrant Purchase Agreement which reads “August 29, 2010” is hereby amended
and replaced with “December 1, 2010”.
4. Section
4(b) of each of the Debentures is hereby amended in its entirety and replaced
with the following:
“Conversion
Price. The conversion price in effect on any Conversion Date
shall be equal to $0.50,
subject to adjustment herein (the “Conversion
Price”).”
5. The
Exercise Price (as defined in the Warrants) of all of the Warrants is hereby
amended and reduced to $1.50, subject to further adjustment
therein.
6. The
first sentence of Section 3(b) of each of the Warrants is hereby amended and
replaced in its entirety with the following:
“Subsequent Equity
Sales. If the Company or any Subsidiary thereof, as applicable, at any
time while this Warrant is outstanding, shall sell or grant any option to
purchase, or sell or grant any right to reprice, or otherwise dispose of or
issue (or announce any offer, sale, grant or any option to purchase or other
disposition) any Common Stock or Common Stock Equivalents entitling any Person
to acquire shares of Common Stock, at an effective price per share less than
both (i) $0.50 and (ii)
the then Exercise Price (such lower price, the “Base Share Price” and
such issuances collectively, a “Dilutive Issuance”)
(if the holder of the Common Stock or Common Stock Equivalents so issued shall
at any time, whether by operation of purchase price adjustments, reset
provisions, floating conversion, exercise or exchange prices or otherwise, or
due to warrants, options or rights per share which are issued in connection with
such issuance, be entitled to receive shares of Common Stock at an effective
price per share which is less than the Exercise Price, such issuance shall be
deemed to have occurred for less than the Exercise Price on such date of the
Dilutive Issuance), then the Exercise Price shall be reduced and only reduced to
equal the Base Share Price and the number of Warrant Shares issuable hereunder
shall be increased such that the aggregate Exercise Price payable hereunder,
after taking into account the decrease in the Exercise Price, shall be equal to
the aggregate Exercise Price prior to such adjustment.”
7. The
Company and each Holder agree that all accrued but unpaid interest under the
Debentures through the date hereof, in the individual amounts set forth on Schedule A attached
hereto, shall be added to the principal amounts of each respective
Debenture. The principal amount outstanding under each Debenture as
of the date hereof and immediately following the addition of such accrued but
unpaid interest shall be as set forth on Schedule A attached
hereto. Within 2 Business Days of a written request, the Company
hereby agrees to issue each Holder a replacement Debenture reflecting the new
principal amount set forth on Schedule A (a “Replacement
Debenture”), and each Holder agrees that upon such a request, it will
surrender the applicable prior Debenture upon receipt of a Replacement
Debenture.
8. The
Company hereby makes the representations and warranties set forth below to the
Holders that as of the date of its execution of this Amendment:
(a) The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Amendment and otherwise to
carry out its obligations hereunder and thereunder. The execution and
delivery of this Amendment by the Company and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of such Company and no further action is required by such
Company, its board of directors or its stockholders in connection
therewith. This Amendment has been duly executed by the Company and,
when delivered in accordance with the terms hereof will constitute the valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
(b) The
execution, delivery and performance of this Amendment by the Company and the
consummation by the Company of the transactions contemplated hereby do not and
will not: (i) conflict with or violate any provision of the Company’s
certificate or articles of incorporation, bylaws or other organizational or
charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result
in the creation of any lien upon any of the properties or assets of the Company,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement, credit facility, debt or other material instrument (evidencing
Company debt or otherwise) or other material understanding to which the Company
is a party or by which any property or asset of the Company is bound or
affected, or (iii) conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of any
court or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any property or
asset of the Company is bound or affected.
(c) No
consideration has been offered or paid to any person to amend or consent to a
waiver, modification, forbearance or otherwise of any provision of any of the
Transaction Documents.
(d) All of
the Company’s warranties and representations contained in this Amendment shall
survive the execution, delivery and acceptance of this Amendment by the parties
hereto. The Company expressly reaffirms that each of the
representations and warranties set forth in the Purchase Agreements, continues
to be true, accurate and complete, and the Company hereby remake and incorporate
herein by reference each such representation and warranty as though made on the
date of this Amendment.
9. On
the first Trading Day immediately following the date hereof, the Company shall
file a Current Report on Form 8-K with the Commission, reasonably acceptable to
each Holder disclosing the material terms of the transactions contemplated
hereby, which shall include this Amendment as an attachment
thereto.
10. Except
as specifically modified herein, all of the terms, provisions and conditions of
the Debentures, the Warrants and all other “Transaction Documents” (as defined
in each of the Purchase Agreements) shall remain in full force and effect and
the rights and obligations of the parties with respect thereto shall, except as
specifically provided herein, be unaffected by this Amendment and shall continue
as provided in the Transaction Documents and shall not be in any way changed,
modified or superseded by the terms set forth herein. This Amendment
shall not constitute a novation or satisfaction and accord of any Transaction
Document.
11. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be delivered as set forth in the Purchase
Agreements.
12. All
questions concerning the construction, validity, enforcement and interpretation
of this Amendment shall be determined in accordance with the provisions of the
Purchase Agreement. The Company hereby agrees that it will reimburse
the Holders the sum of $3,000 for its legal fees and expenses upon its execution
of this Amendment. Except as set forth in this section, each
party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this
Amendment.
13. This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors, permitted assigns and legal
representatives. This Amendment shall be for the sole benefit of the
parties to this Amendment and their respective heirs, successors, permitted
assigns and legal representatives and is not intended, nor shall be construed,
to give any person or entity, other than the parties hereto and their respective
heirs, successors, assigns and legal representatives, any legal or equitable
right, remedy or claim hereunder.
14. This
Amendment may be executed in counterparts, all of which when taken together
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
15. This
Amendment constitutes the entire agreement among the parties with respect to the
matters covered hereby and thereby and supersede all previous written, oral or
implied understandings among them with respect to such matters.
16. The
invalidity of any portion hereof shall not affect the validity, force or effect
of the remaining portions hereof. If it is ever held that any
restriction hereunder is too broad to permit enforcement of such restriction to
its fullest extent, such restriction shall be enforced to the maximum extent
permitted by law.
17. No
provision of this Amendment may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Holders
or, in the case of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Amendment shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
18. Each
of the parties hereto acknowledges that this Amendment has been prepared jointly
by the parties hereto, and shall not be strictly construed against either
party.
19. The
amendments herein shall not be effective unless and until Holders of the
Debentures shall have agreed to the terms and conditions hereunder.
20. The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holders hereunder, and no Holder shall be responsible
in any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered at any
closing, and no action taken by any Holder pursuant hereto, shall be deemed to
constitute the Holders as a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that the Holders are in any way
acting in concert with respect to such obligations or the transactions
contemplated by this Amendment. Each Holder shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of this
Amendment, and it shall not be necessary for any other Holder to be joined as an
additional party in any proceeding for such purpose.
IN
WITNESS WHEREOF, the parties have duly executed this Amendment as of the date
first written above.
| ADRENALINA | |||
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By:
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| Name: | |||
| Title: | |||
[HOLDER
SIGNATURE PAGES FOLLOW]
[HOLDER
SIGNATURE PAGE TO AENA AMENDMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name of
Holder: ________________________________________________________
Signature of Authorized Signatory of
Holder: __________________________________
Name of
Authorized Signatory:
____________________________________________________
Title of
Authorized Signatory:
_____________________________________________________
