AMENDMENT AGREEMENT
Exhibit
10.08
THIS
AMENDMENT AGREEMENT, dated as of February 18, 2009 (this “Agreement”),
by and between by Amber Ready, Inc. (formerly Amber Alert Safety Centers, Inc.),
a Nevada corporation (“Company”), and the Xxxx Xxxxxx Bridge & Opportunity
Fund, L.P., a Delaware limited partnership (“Investor”), amends that certain
purchase agreement, dated December 30, 2008 by and between the Company and
Investor (“Purchase Agreement”), the common stock purchase agreement, dated
December 30, 2008 by and between the Company and Investor (“Stock Purchase
Agreement”) and the security agreement dated December 30, 2008 by and between
the Company and Investor (“Security Agreement,” and together with the
Purchase Agreement and Stock Purchase Agreement, the “Prior
Agreements”).
W I T N E
S S E T H:
WHEREAS,
pursuant to Section 6.10 of the Stock Purchase Agreement, the parties agreed
that the Company will issue Investor additional shares of Common Stock for a
purchase price equal to the par value of the Common Stock so that the amount of
Investor’s common stock shall not be less than four percent (4%) of the fully
diluted issued and outstanding capital stock of the Company, after giving effect
to all outstanding derivative securities regardless of whether such derivative
securities have vested, or exercisable or convertible; and
WHEREAS,
pursuant to Section 7.9 of the Purchase Agreement, the parties agreed that the
Company will issue Investor additional shares of Common Stock for a purchase
price equal to the par value of the Common Stock so that the amount of
Investor’s common stock shall not be less than three percent (3%) of the fully
diluted issued and outstanding capital stock of the Company, after giving effect
to all outstanding derivative securities regardless of whether such derivative
securities have vested, or exercisable or convertible; and
WHEREAS,
the parties now desire to resolve the conflict between Section 7.9 of the
Purchase Agreement and Section 6.10 of the Stock Purchase Agreement by amending
both agreements; and
WHEREAS,
pursuant to Section 7.10 of the Purchase Agreement and Section 4.5 of the
Security Agreement, the parties agreed that the Company would deliver a deposit
account control agreement; and
WHEREAS,
the parties now desire to amend the Purchase Agreement and Security Agreement to
delete the requirement of a deposit account control agreement.
NOW
THEREFORE, in consideration of the mutual benefits accruing to Investor and
Company and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto do hereby agree as
follows:
1. DEFINITIONS.
Defined
terms not herein defined shall have the meaning set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
“2009
Financing” means the financing the Company intends to complete within
three months after the date of this Agreement;
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“Investor’s
Common Stock” means the 2,250,000 shares of Common Stock issued to
Investor, consisting of 750,000 shares of Common Stock (after giving effect to
the 10-for-1 reverse stock split subsequent to December 2008) issued in December
2008 and 1,500,000 shares of Common Stock issued hereunder.
“Investor
Debenture” means the 14% Secured Convertible Debenture issued to the
Investor in the Investor Transaction pursuant to the Investor Transaction
Documents;
“Investor
Transaction” means the transactions entered into pursuant to the Investor
Transaction Documents;
“Investor
Transaction Documents” means all agreements, instruments and other
documents that the Company and the Investor entered into in December 2008, and
all transaction documents as defined in such agreements, instruments and other
documents together with all documents related thereto, as may have been amended,
including but not limited to the Purchase Agreement and 14% Secured Convertible
Debenture.
2. AMENDMENTS
AND STOCK ISSUANCE.
2.1 Amendment of the Purchase
Agreement. (a) Section 7.9 of the Purchase Agreement is hereby
amended in its entirety to be and read as follows:
“7.9
Anti-dilution
Protection. Until the payment in full of the Debenture, the
Company shall (i) issue Investor additional shares of Common Stock for a
purchase price equal to the par value of the Common Stock so that the amount of
Investor’s Common Stock shall not be less than four percent (4%) of the fully
diluted issued and outstanding capital stock of the Company, after giving effect
to all outstanding derivative securities regardless of whether such derivative
securities have vested, or are exercisable or convertible and (ii) reserve a
sufficient number of shares of its Common Stock in order to lawfully issue
Investor such additional shares of Common Stock. The Company shall
increase the number of shares of its authorized Common Stock pursuant to its
Articles of Incorporation, if necessary, in order to reserve a sufficient number
of shares to fulfill its obligation to this Section 7.9.”
(b) Section 7.10 of the Purchase
Agreement is hereby amended in its entirety to be and read as
follows:
“7.10
[Reserved]”
2.2 Amendment of the Stock
Purchase Agreement. (a) The Preamble of Article VI of the
Stock Purchase Agreement is hereby amended in its entirety to be and read as
follows:
“With
respect to Section 6.01 through 6.09, until the date Investor shall own less
than fifty percent (50.0%) of the Investor’s Common Stock, the Company shall
comply with the covenants set forth in Section 6.01 through
6.09. With respect to Section 6.10, until the repayment of the
Debenture in full, the Company shall comply with the covenants set forth in
Section 6.10:”
(b) Section 6.10 of the
Stock Purchase Agreement is hereby amended in its entirety to be and read as
follows:
“6.10
Anti-dilution
Protection. The Company shall (i) issue Investor additional
shares of Common Stock for a purchase price equal to the par value of the Common
Stock so that the amount of Investor’s Common Stock shall not be less than four
percent (4%) of the fully diluted issued and outstanding capital stock of the
Company, after giving effect to all outstanding derivative securities regardless
of whether such derivative securities have vested, or are exercisable or
convertible and (ii) reserve a sufficient number of shares of its Common Stock
in order to lawfully issue Investor such additional shares of Common
Stock. The Company shall increase the number of shares of its
authorized Common Stock pursuant to its Articles of Incorporation, if necessary,
in order to reserve a sufficient number of shares to fulfill its obligation to
this Section 6.10.”
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2.3 Amendment of the Security
Agreement. (a) Section 2(b) of the Security Agreement is
hereby amended in its entirety to be and read as follows:
“(b) This
Agreement is effective to create in favor of Secured Party a valid security
interest in and Lien upon all of Debtor’s right, title and interest in and to
the Collateral, and upon (i) the filing of appropriate Uniform Commercial Code
financing statements in the jurisdictions listed on Schedule I attached
hereto, (ii) the security interest created hereby being noted on each
certificate of title evidencing the ownership of any Motor Vehicle, such
security interest will be a duly perfected first priority security interest in
all of the Collateral (other than Instruments not constituting Chattel Paper),
and upon delivery of the Instruments to the Secured Party or its Representative,
duly endorsed by Debtor or accompanied by appropriate instruments of transfer
duly executed by Debtor, the security interest in the Instruments will be duly
perfected.”
(b) Section 4.5 of the Security
Agreement is hereby amended in its entirety to be and read as
follows:
“4.5 [Reserved]”
2.4 Effect on Prior
Agreements. Subject to the consents
and amendments provided herein, all of the terms and conditions of the Prior
Agreements and Investor Transaction Documents shall continue in full force and
effect after the execution of this Agreement and shall not be in any way
changed, modified or superseded by the terms set forth herein, including but not
limited to, any other obligations the Company may have to the Investor
under the Investor Transaction Documents. Except as expressly set forth
herein, this Agreement shall not be deemed to be a waiver, amendment or
modification of any provisions of the Investor Transaction Documents or of any
right, power or remedy of the Investor, or constitute a waiver of any provision
of the Investor Transaction Documents (except to the extent herein set forth),
or any other document, instrument and/or agreement executed or delivered in
connection therewith, in each case whether arising before or after the date
hereof or as a result of performance hereunder or thereunder. The Investor
reserves all rights, remedies, powers, or privileges available under the
Investor Transaction Documents, at law or otherwise. This Agreement
shall not constitute a novation or satisfaction and accord of the Investor
Transaction Documents or any other document, instrument and/or agreement
executed or delivered in connection therewith.
2.5 Issuance of Common
Stock. In
consideration of entering into, and upon execution of this
Agreement, the Company shall issue to the Investor, 1,500,000 shares of the
Company’s common stock.
3. MISCELLANEOUS.
3.1 Successors and
Assigns. This Agreement shall be binding upon, and inure to
the benefit of, the successors and permitted assigns of the
Parties. Except as set forth in the Investor Transaction Documents,
neither party may assign its rights or obligations under this Agreement without
the other party’s prior written consent. Any purported assignment shall be
void.
3.2 Governing Law; Jurisdiction;
Waiver of Jury Trial. This Agreement shall be governed by and
construed under the laws of the State of Texas without regard to the choice of
law principles thereof. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the State of Texas
located in Xxxxxx County for the adjudication of any dispute hereunder or in
connection herewith or therewith or with any transaction contemplated hereby or
thereby, and hereby irrevocably waives any objection that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner permitted by
law. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES
THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS AGREEMENT AND HAS HAD AN
OPPORTUNITY TO SEEK SEPARATE COUNSEL OF ITS OWN CHOICE TO REVIEW THIS AGREEMENT,
(III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION
3.2.
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3.3 Injunctive
Relief. Each Party acknowledges and agrees that a breach by it
of its obligations hereunder will cause irreparable harm to the other and that
the remedy or remedies at law for any such breach will be inadequate and agrees,
in the event of any such breach, in addition to all other available remedies,
the non-breaching party shall be entitled to an injunction restraining any
breach and requiring immediate and specific performance of such obligations
without the necessity of showing economic loss or the posting of any
bond.
3.4 Severability. In
the event that any provision of this Agreement becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that in such case
the parties shall negotiate in good faith to replace such provision with a new
provision which is not illegal, unenforceable or void, as long as such new
provision does not materially change the economic benefits of this Agreement to
the parties.
3.5 Counterparts/Execution. This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but one
and the same instrument. This Agreement may be executed by facsimile
signature and delivered by facsimile transmission.
3.6 Notices. Any
notice, demand or request required or permitted to be given by the respective
parties hereto pursuant to the terms of this Agreement shall delivered in
accordance with the terms of the Investor Transaction Documents.
3.7 Expenses. The
parties hereto shall pay their own costs and expenses in connection herewith,
except that the Company shall pay the fees and expenses of Xxxxxx &
Xxxxxxxxx, P.C., in an amount equal to $10,000, which shall be paid upon the
maturity (however maturity may occur) of the Investor Debenture.
3.8 Entire Agreement;
Amendments. This Agreement constitutes the entire agreement
between the parties with regard to the subject matter hereof and thereof,
superseding all prior agreements or understandings, whether written or oral,
between or among the parties. No amendment, modification or other
change to this Agreement or waiver of any agreement or other obligation of the
parties under this Agreement may be made or given unless such amendment,
modification or waiver is set forth in writing and is signed by Investor and
Company. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
3.9 Headings. The
headings used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
[Signature
pages follow]
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the day and year first above written.
/s/ XXX X.
XXXXXXXXX
Name: Xxx
X. Xxxxxxxxx
Title:
Chief Executive Officer
XXXX
XXXXXX BRIDGE & OPPORTUNITY FUND, L.P.
/s/ XXXXXX X. XXXXXXX,
XX.
Name:
Xxxxxx X. Xxxxxxx, Xx.
Title:
Managing Member of the General Partner
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