Amendment No. 1 to Management Agreement
Amendment
No. 1 to Management Agreement
THIS
AMENDMENT
is made
this 7th day of July, 2008, by and between Xxxxxx
Management, LLC (“Xxxxxx”) and Driftwood Ventures, Inc. (the “Company”).
WHEREAS,
the
Company entered into that certain Management Agreement with Xxxxxx dated October
24, 2007 (the “Agreement”);
WHEREAS,
the
Company is undertaking a financing transaction in which it will sell up to
$7,000,000 of senior secured convertible notes and issuing up to an aggregate
of
6,363,636 warrants to the purchasers of such notes (the “Financing”) and
in
connection with the Financing, it is desired that the Agreement be terminated
and Xxxxxx be entitled to a termination fee as set forth in Section 7(b) of
the
Agreement; and
WHEREAS,
each of
the Company and Xxxxxx desire to amend the Agreement to provide that the
termination fee set forth in Section 7(b) of the Agreement be reduced to
$750,000 and be satisfied by the delivery of the Company’s senior secured
convertible notes and warrants, which notes and warrants will be on the terms
of
the notes and warrants being sold by the Company in the Financing.
NOW
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
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Amendment. Section
7(b) of the Agreement is hereby deleted in its entirety and the following
inserted in its place: “The
Company may terminate this Agreement effective immediately by (i)
giving
written notice of termination to the Manager, and (ii) concurrently
therewith, making payment of a termination fee of $1,000,000 to the
Manager; provided, that, this Agreement shall automatically terminate
and
be of no further force or effect and
all obligations thereunder, including, but not limited to, any fees
which
may have been waived or accrued shall be extinguished upon
the initial closing of that certain Note Purchase Agreement, by and
among
the Company and the Purchasers thereunder, in which the Company is
selling
to such purchasers up to $7,000,000
of senior secured convertible notes and issuing up to an aggregate
of
6,363,636 warrants to the purchasers of such notes (the
“Financing”)
and, in such event, the termination fee set forth above shall be
reduced
to $750,000 and the Company may satisfy such fee by delivery to the
Manager of its senior secured convertible notes in the aggregate
amount of
$750,000 and 681,818 warrants, such notes and warrants to
be
on the same terms of the notes and warrants being sold by the Company
in
the Financing.”
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This
Amendment constitutes the entire agreement and understanding between the parties
hereto with respect to the subject matter hereof and supersedes all prior oral
or written agreements, representations or understandings between the parties
relating to the subject matter hereof. The statements and agreements in this
Amendment shall be binding on the parties hereto and their respective successors
and assigns and shall inure to the benefit of the parties hereto and their
respective successors and assigns. This Amendment may be executed in any number
of counterparts, and by different parties hereto on separate counterparts,
each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Acknowledged
and agreed to:
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By:
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/s/
Xxxxxxx Xxxxx
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Name:
Xxxxxxx Xxxxx
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Title:
Chief Financial Officer
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Xxxxxx
Management, LLC
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By:
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/s/
Xxx Xxxx
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Name:
Xxx Xxxx
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Title:
Director
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