Contract
Amendment
dated December 1, 2008 (the “Amendment”) by and between Xxxxx.xxx Group, Inc.
(“Bonds”) and each of the holders executing signature pages hereto, representing
the holders of a majority of the outstanding principal amount of the
Notes to the Secured Convertible Note and Warrant Purchase Agreement,
dated as of September 24, 2008 (the “Agreement”) between the entities and
persons listed on Exhibit A thereto and
Bonds. Any capitalized term used but not defined in this Amendment
shall have the meaning given to such term in the
Agreement.
WHEREAS, the parties desire to amend
the Agreement to extend the deadline for additional Closings under the Agreement
to January 30, 2009 (the “Extension”).
WHEREAS, Section 7(g) of the Agreement
specifically provides that any term of the Agreement may be amended with the
written consent of Bonds and the holders of a majority of the outstanding
principal amount of the Notes (as such term is defined in the
Agreement).
NOW,
THEREFORE, pursuant to Section 7(g) of the Agreement, the parties agree as
follows:
1. Amendment to Section
1(a)(iii) of the Agreement. Effective as of the date hereof, Section
1(a)(iii) of the Agreement is deleted in its entirety and replaced with the
following:
Additional
Closings. During the period commencing on the Initial Closing
Date and ending January 30, 2009 (the “Additional Sale
Period”), the Company may offer for sale and sell pursuant to this
Agreement such number of Units (the “Additional Units”) as
is equal to: (i) 240 less (ii) the number of Units sold in the Initial Closing
for cash consideration (exclusive of such Units sold at the Initial Closing to
Authorized Noted Holders pursuant to the conversion of Authorized
Notes). The closing or closings hereunder during the Additional Sale
Period with respect to the purchase and sale of additional Units (each of said
closings being sometimes hereinafter referred to as an "Additional Closing
Date," and together with the Initial Closing Date, each a “Closing
Date”).
2. Consent. The parties
hereby agree to the Extension and all actions taken by Bonds in connection with
or related thereto.
3. No Other
Amendments. Except as expressly amended, modified and
supplemented hereby, the provisions of the Agreement, as amended, are and will
remain in full force and effect and, except as expressly provided herein,
nothing in this Amendment will be construed as a waiver of any of the rights or
obligations of the parties under the Agreement.
4. Conflicts in Terms.
In the event of any conflict in terms between this Amendment and the Agreement,
the terms and conditions of this Amendment shall prevail.
5. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida (without giving effect to any
conflicts of laws principles there under).
6. Descriptive
Headings. Descriptive headings are for convenience only and
will not control or affect the meaning or construction of any provisions of this
Amendment.
7. Counterparts. This
Amendment may be executed in any number of identical counterparts, each of which
will constitute an original but all of which when taken together will constitute
but one instrument.
8. Severability. In
the event one or more of the provisions of this Agreement should, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other
provisions of this Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date set
forth above.
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XXXXX.XXX
GROUP, INC.
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By:
_______________________________
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Name:
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Title:
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Investors
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By:__________________________
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Name:
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Title:
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