AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
AMENDMENT
NO. 1
TO
This
Amendment No. 1 to the Note Purchase Agreement, dated as of July 15, 2008 (this
“Amendment”) amends that certain Note Purchase Agreement, entered into as of
July 7, 2008, by
and
among Driftwood Ventures, Inc., a Delaware corporation (the “Company”) and the
purchasers listed on the schedule thereto (the “Note Purchase Agreement”)
(capitalized terms used herein and not otherwise defined shall have the meanings
given to them in the Note Purchase Agreement).
RECITALS
WHEREAS,
pursuant to the Note Purchase Agreement, the Company commenced a financing
to
raise up to $7,000,000 through the sale of senior secured convertible notes
to
certain investors (the “Notes”), which notes are convertible into shares of the
Company’s common stock, par value $0.001 per share (“Common Stock”) (the
“Financing”); and
WHEREAS,
in connection with the Financing, the Company agreed to issue to the investors
in the Financing, warrants to purchase an aggregate of up to 6,363,636 shares
of
Common Stock at an exercise price of $0.01 per share (the “Warrants”); and
WHEREAS,
the
parties to the Note Purchase Agreement desire to amend certain provisions of
the
Note Purchase Agreement to:
(i)
increase the aggregate principal amount of Notes that the Company may issue
and
sell in the Financing to up to $9,000,000; (ii) increase the aggregate number
of
Warrants that the Company may issue in the Financing to up to 8,181,818; and
(iii) extend the Financing until July 31, 2008.
NOW,
THEREFORE,
in
consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged by the parties hereto, the
undersigned parties do hereby agree as follows:
AGREEMENT
1.
|
The
first Recital of the Note Purchase Agreement is hereby amended by
deleting
the words “at least $7,000,000.00” from line 2, and inserting “up to
$9,000,000.00” in its place, such that the amended Recital reads as
follows: “WHEREAS, the Company has requested that the Purchasers make
loans to the Company in the aggregate principal amount of up to
$9,000,000.00;”.
|
2.
|
The
following Recital is hereby added to the Note Purchase Agreement
after the
first Recital: “WHEREAS, as partial inducement to make such loans to the
Company, the Company desires to issue to the Purchasers an aggregate
of up
to 8,181,818 warrants to purchase common stock of the
Company;”.
|
3.
|
Lines
1 and 2 of Section 2(b) of
the Note Purchase Agreement are
hereby amended by
deleting “July 15, 2008” and inserting “July 31, 2008” in its place, such
that the relevant portion of the amended Section 2(b) reads as follows:
“At
any time and from time to time on or before July 31, 2008, the Company
may
issue additional Notes to one or more additional persons or
entities….”
|
4.
|
Section
8(e) of the Note Purchase Agreement shall be deleted and replaced
with the
following: “Use of Proceeds. The Purchasers acknowledge and agree that the
Company will use the proceeds of loans made by the Purchasers hereunder
for the purchase of senior secured convertible notes in Green Screen
Interactive Software, Inc. (“Green Screen”) in accordance with the terms
and conditions of the documents governing that transaction, and,
if
required, for additional operating capital for the Company or Green
Screen.”
|
5.
|
Except
as otherwise set forth herein, the Note Purchase Agreement shall
remain in
full force and effect without change or modification. This Amendment,
the
Note Purchase Agreement and other agreements related to the Note
Purchase
Agreement constitute the entire understanding of the parties with
respect
to the subject matter hereof and thereof and supersede all prior
and
current understandings and agreements, whether written or oral, with
respect to such subject matter. The invalidity or unenforceability
of any
provision hereof shall not affect the validity or enforceability
of any
other term or provision hereof. The headings in this Amendment are
for
convenience of reference only and shall not alter, limit or otherwise
affect the meaning hereof. This Amendment may be executed in any
number of
counterparts, which together shall constitute one instrument, and
shall
bind and inure to the benefit of the parties and their respective
successors and assigns.
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on their behalf as of the date first written above.
COMPANY: | ||
DRIFTWOOD VENTURES, INC. | ||
|
|
|
By: | /s/ Xxxxxxx Xxxxx | |
Name: Xxxxxxx Xxxxx |
||
Title: Chief Financial Officer |
PURCHASERS: | ||
XXXXXX CAPITAL MASTER FUND, LTD. | ||
|
|
|
By: | /s/ Xxx Xxxx | |
Name: Xxx Xxxx |
||
Title:
Managing
Director of
Xxxxxx
Management, LLC, its Manager
|
BACK BAY LLC | ||
|
|
|
By: | /s/ Xxxxxx Xxxxxxxx | |
Name: Xxxxxx Xxxxxxxx |
||
Title: Chief Financial Officer |
CIPHER 06 LLC | ||
|
|
|
By: | /s/ Xxxxx Xxxxxxx | |
Name: Xxxxx Xxxxxxx |
||
Title: Managing Member |