AMENDMENT TO THE AGREEMENT TO ADVANCE FUNDS
AMENDMENT
TO THE AGREEMENT TO ADVANCE FUNDS
This
Amendment to the Agreement to Advance Funds (“Amended Agreement”) is made by and
between Yale Xxxxx, an individual, and Rokwader, Inc., a Delaware corporation
(the “Company”).
WHEREAS,
Xx. Xxxxx and the Company executed a certain Agreement to Advance Funds dated
September 21, 2005, (the “Agreement”) wherein Xx. Xxxxx agreed to advance up to
$50,000 to the Company;
WHEREAS,
in connection with the Agreement, the Company executed a promissory note in
favor of Xx. Xxxxx, dated November 16, 2005, in the amount of fifteen thousand
dollars ($15,000);
WHEREAS,
in connection with the Agreement, the Company executed an additional promissory
note in favor of Xx. Xxxxx, dated January 4, 2006, in the amount of twenty-seven
thousand dollars ($27,000);
WHEREAS,
the Company anticipates an ongoing need for funding while pursuing its business
objective of effecting a business combination as set forth in the Company’s
public filings with the Securities and Exchange Commission (the “SEC”),
including its Annual Report on Form 10-KSB dated March 30, 2006 (a “Business
Combination”); and
WHEREAS,
as a director, officer and beneficial owner of shares of the Company, Xx. Xxxxx
desires to advance additional funds to the Company for the purpose of assisting
the Company in effecting a Business Combination;
NOW,
THEREFORE, for and in consideration of the promises and mutual covenants herein
contained, and other valuable consideration, the parties hereto hereby agree
as
follows:
1. Advancement
of Funds.
| (a) | Paragraph 1(b) of the Agreement is hereby deleted in its entirety and replaced with the following: |
|
Further
Advances.
In
consideration of the Company’s timely completion of its initial public
offering, its ongoing pursuit of a Business Combination and its effort
to
conduct and complete such Business Combination, Xx. Xxxxx hereby
agrees to
advance to the Company up to an additional $50,000 for use toward
the
payment of fees and expenses arising from maintaining the Company’s
compliance with its public reporting requirements and completing
any
registration statement, proxy filing or other actions that may be
required
to effect the anticipated Business Combination.
|
|
(b)
|
To
the extent any funds available for advance pursuant to paragraph
1(a) of
the Agreement were not advanced to the Company prior to the date
of the
Amended Agreement, such funds shall remain available for advance
to the
Company in addition to the funds described in paragraph 1(b) of the
Agreement, under the terms and conditions set forth
herein.
|
2. Reaffirmation
of Terms. All
other
terms of the Agreement, to the extent such terms are not inconsistent with
this
Amended Agreement, are hereby reaffirmed by this Amended Agreement.
3.
Promissory
Note. In
connection with each advance of funds by Xx. Xxxxx to the Company pursuant
to
this Amended Agreement and subsequent to the date hereof, the parties shall
execute a promissory note in substantially similar form to Exhibit
A
to this
Amended Agreement.
IN
WITNESS WHEREOF, the undersigned parties have executed this Amended Agreement
upon proper legal authority as of the 10th day of May, 2006.
| /s/ Yale Xxxxx | /s/ Xxxxxxxx Xxxx | ||
| Yale Xxxxx, an individual | Xxxxxxxx Xxxx, | ||
| Chief Financial Officer and Secretary | |||
EXHIBIT
A
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS AND MAY NOT BE OFFERED OR SOLD, UNLESS IT HAS BEEN REGISTERED UNDER SUCH
ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM REGISTRATION
IS AVAILABLE.
PROMISSORY
NOTE
|
$___________
|
Los
Angeles, CA
|
|
____________,
200_
|
FOR
VALUE
RECEIVED, Rokwader, Inc., a Delaware corporation (the “Company”), promises to
pay to the order of Yale Xxxxx, an individual (the “Holder”), the principal
amount of $______, payable upon the consummation of a business combination
between the Company and an entity to be identified (“Due Date”), in relation to
the Company’s registration and offering of shares of common stock pursuant to
Rule 419 promulgated under the Securities Act of 1933. The principal amount
shall not bear any interest.
The
following is a statement of the rights of Holder and the conditions to which
this Note is subject, and to which Holder, by the acceptance of this Note,
agrees:
| 1. |
Amended
Agreement to Advance Funds.
This Note is being issued pursuant to the terms of the Agreement
to
Advance Funds entered into by and between the Company and the Holder
and
dated September 21, 2005 (the “Agreement”) and the Amended Agreement to
Advance Funds entered into by and between the Company and the Holder
and
dated May __, 2006 (the “Amended Agreement”).
|
| 2. |
Payments.
All payments of principal in respect of this Note shall be made in
lawful
money of the United States of America in same day funds at the principal
office of the Holder, or at such other place as Holder may designate
in
writing. Each payment made hereunder shall be credited to outstanding
principal due.
|
| 3. |
Prepayment
Privilege.
This Note may be prepaid at any time, without premium or penalty.
|
| 4. |
Events
of Default.
All liabilities of the Company under this Note shall be immediately
due
and payable, without notice or demand, upon or at any time after
the
occurrence or existence of any one or more of the following “Events of
Default”:
|
(a) A
proceeding shall have been instituted in a court having jurisdiction over the
Company seeking a decree or order for relief in respect of Company in an
involuntary case under any applicable bankruptcy, insolvency, reorganization
or
other similar law and such involuntary case shall remain undismissed or unstayed
and in effect for a period of sixty (60) consecutive days, or Company shall
commence a voluntary case under any such
law
or consent to the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator, conservator (or other similar official).
(b)
The
Company shall have filed a notice of withdrawal of the Company’s registration
statement on Form SB-2 with the Securities and Exchange Commission (the “SEC”).
(c)
The
Company shall have failed to complete the contemplated offering within 6 months
from date of the prospectus contained in registration statement on Form SB-2
as
declared effective by the SEC.
(d)
The
Company shall have failed to complete a business combination prior to May 2,
2007.
| 5. |
Successors
and Assigns.
The rights and obligations of the Company and Holder of this Note
shall be
binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties. The Company may not assign its obligations
hereunder without the consent of the Holder; the Holder may assign
its
rights, interests or obligations hereunder, in whole or in
part.
|
| 6. |
Waiver
and Amendment.
Any provision of this Note may be amended, waived or modified upon
the
written consent of the Company and
Holder.
|
| 7. |
Notices.
Any notice, request or other communication required or permitted
hereunder
shall be in writing and shall be deemed to have been duly given if
personally delivered or mailed by registered or certified mail, postage
prepaid, or by recognized overnight courier or personal delivery
at the
respective addresses of the parties as set forth on the register
maintained by the Company. Any party hereto may by notice so given
change
its address for future notice hereunder. Notice shall conclusively
be
deemed to have been given when received.
|
| 8. |
Expenses;
Waivers.
If action is instituted to collect this Note, the Company promises
to pay
all costs and expenses, including, without limitation, reasonable
attorneys’ fees, and costs, incurred in connection with such action. The
Company hereby waives notice of default, presentment or demand for
payment, protest or notice of nonpayment or dishonor and all other
notices
or demands relative to this instrument.
|
| 9. |
Governing
Law.
This Note and all actions arising out of or in connection with this
Note
shall be governed by and construed in accordance with the laws of
the
State of California, without regard to the conflicts of law provisions
of
the State of California, or of any other state.
|
| 10. |
Waiver
of Jury Trial.
To the fullest extent permitted by applicable law, the Company and
the
Holder hereby irrevocably and expressly waive all right to a trial
by jury
in any action, proceeding, counterclaim (whether based upon contract,
tort
or otherwise) arising out of or relating to this Note, or other documents
entered in connection herewith or the transactions contemplated
hereby.
|
| 11. |
Headings.
The headings of the sections and subsections of this Note are inserted
for
convenience only and do not constitute a part of this Note.
|
| 12. |
Severability.
In case any one or more of the provisions contained in this Note
shall be
deemed invalid, illegal, or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
herein
shall not in any way be affected or impaired thereby.
|
| 13. |
Miscellaneous.
In the event the Holder at any time discovers that this Note contains
an
error which was caused by clerical mistake, calculation error, computer
error, printer error, or similar error, the Company agrees, upon
notice
from the Holder to execute any amendment or modification hereto that
is
necessary to correct any such errors, and the Company also agrees
not to
hold the Holder responsible for any damage resulting from such error.
If
this Note is lost, stolen, mutilated or destroyed, and the Holder
delivers
to the Company an indemnification in the Company’s favor, signed by the
Holder, the Company will sign and deliver to Holder, a note identical
in
form and content which will have the effect of the original Note
for all
purposes.
|
IN
WITNESS WHEREOF, the undersigned has caused this Note to be duly executed and
delivered as of the day and year first above written.
______________________
Name:
Title:
