AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT
This
Amendment No. 1 to Securities Purchase Agreement (this “Amendment”), dated
effective as of May 22, 2008, is entered into by and among Spicy
Pickle Franchising, Inc., a Colorado corporation (the
“Company”), and the purchasers identified on the signature pages hereto
(collectively, the “Purchasers”).
WHEREAS,
the Company and the Purchasers are parties to that certain Securities Purchase
Agreement, dated as of December 14, 2007 (the “Agreement”), pursuant to which
the Company sold and issued to the Purchasers an aggregate of 705 shares of
the
Company’s Series A Variable Rate Convertible Preferred Stock, par value $0.001
per share, and warrants (the “Warrants”) to acquire up to an aggregate of
5,287,500 shares of the Company’s common stock, par value $0.001 per share;
and
WHEREAS,
the parties hereto wish to amend the Agreement and the Warrants as provided
herein.
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged hereby,
the
parties hereto agree as follows:
1. The
definition of “Exempt Issuance” in the Agreement shall be deleted in its
entirety and replaced with the following:
“‘Exempt
Issuance’
means
the issuance of (a) shares of Common Stock or options to employees, officers
or
directors of the Company pursuant to any stock or option plan duly adopted
for
such purpose by the Board of Directors or a committee of the Board of Directors
established for such purpose, (b) securities upon the exercise or exchange
of or
conversion of any Securities issued hereunder and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement, provided that such
securities have not been amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise, exchange or
conversion price of such securities, (c) securities issued pursuant to
acquisitions or strategic transactions approved by a majority of the
disinterested directors of the Company, provided that any such issuance shall
only be to a Person which is, itself or through its subsidiaries, an operating
company in a business synergistic with the business of the Company and in which
the Company receives benefits in addition to the investment of funds, but shall
not include a transaction in which the Company is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is
investing in securities, (d) up to 300,000 shares of Common Stock (subject
to
adjustment for reverse and forward stock splits, stock dividends, stock
combinations and other similar transactions of the Common Stock that occur
after
the date of this Agreement) issuable to Xxxxxxxxxx & Xxxxx LLP in lieu of
cash payments for services rendered to the Company, (e) up to 200,000 shares
of
Common Stock (subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the Common
Stock
that occur after the date of this Agreement) issuable to MarketByte LLC pursuant
to the Consulting Agreement dated November 30, 2007 between MarketByte LLC
and
the Company as in effect on the date hereof, (f) up to 60,000 shares of Common
Stock (subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the Common
Stock
that occur after the date of this Agreement) per calendar year issuable to
Xxxxx
& Xxxxxx, PC, as consideration for services rendered to the Company, (g) up
to 250,000 warrants to acquire Common Stock at an exercise price of $1.60 per
share and up to 50,000 shares of Common Stock (in each case, subject to
adjustment for reverse and forward stock splits, stock dividends, stock
combinations and other similar transactions of the Common Stock that occur
after
the date of this Agreement) issuable to After Market Support, LLC as
consideration for services rendered to the Company, and (h) up to 100,000 shares
of Common Stock (subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common
Stock that occur after the date of this Agreement) issuable to HIM Creative,
LLC
as consideration for services rendered to the Company.”
2. Where
the
term “Exempt Issuance” appears in the Warrants, it shall have the meaning
ascribed to that term in Paragraph 1 above.
3. Each
Purchaser hereby confirms that such Purchaser has not transferred to any other
person any of the Warrants acquired by such Purchaser pursuant to the
Agreement.
4. This
Amendment shall not be effective unless and until all Purchasers shall have
agreed to the terms and conditions hereof. Except as explicitly amended as
set
forth in this Amendment, all of the terms and provisions of the Agreement and
the Warrants shall continue in full force and effect.
5. The
Company has elected to provide all Purchasers with the same terms of amendment
for the convenience of the Company and not because it was required or requested
to do so by the Purchasers. The obligations of each Purchaser under this
Amendment and any Transaction Document are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be responsible in
any
way for the performance or non-performance of the obligations of any other
Purchaser under this Amendment or any Transaction Document. Nothing contained
herein or in any Transaction Document, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by this
Amendment or the Transaction Documents. Each Purchaser shall be entitled to
independently protect and enforce its rights, including without limitation,
the
rights arising out of this Amendment or out of the other Transaction Documents,
and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose. Each Purchaser has been
represented by its own separate legal counsel in its review and negotiation
of
this Amendment and the Transaction Documents.
6. Within
1
Trading Day of the effective date hereof, the Company shall file a Current
Report on Form 8-K disclosing the terms of this Amendment.
7. No
consideration has been offered or paid to any person to amend or consent to
a
waiver, modification, forbearance or otherwise of any provision of any of the
Transaction Documents.
8. This
Amendment may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other parties, it being understood that all parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| SPICY PICKLE FRANCHISING, INC. | ||
|
By:
|
/s/ Xxxx Xxxxx | |
| Name:
Xxxx Xxxxx
Title:
Chief Executive Officer
|
||
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOR PURCHASERS FOLLOW]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Name of Purchaser: |
Enable
Capital Management LLC (for EGP, EDP &
Xxxxxx)
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxx Xxxxxxx
|
| Name of Authorized Signatory: |
Xxxx
Xxxxxxx
|
| Title of Authorized Signatory: |
Co-Founder
& Principal
|
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Xxxxxxx
Xxxx, Xxxxxxxx Xxxxxx
Xxxx
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxxxxx Xxxx /s/ Xxxxxxxx Xxxxxx
Xxxx
|
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Xxxxxx
&
Xxxxxx
Xxxxx
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxxxx Xxxxx /s/ Xxxxxx
Xxxxx
|
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
MarketByte
Defined Benefit Plan &
Trust
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxxxxxx X. Xxxx
|
| Name of Authorized Signatory: |
Xxxxxxxx
X. Xxxx
|
| Title of Authorized Signatory: |
Trustee
|
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Xxxxxxx
X. Xxxxxx Trust
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxxxxx X. Xxxxxx
|
| Name of Authorized Signatory: |
Xxxxxxx
X. Xxxxxx
|
| Title of Authorized Signatory: |
Trustee
|
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Desert
Lake Advisors Inc. Defined Benefit
Plan
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxxxx X. Xxxxxx
|
| Name of Authorized Signatory: |
Xxxxxx
X. Xxxxxx
|
| Title of Authorized Signatory: |
Trustee
|
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Xxxxx
X. Xxxxx
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxxx X. Xxxxx
|
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Xxxxxxx
Xxxxx-Xxxxx
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxxxxx
Xxxxx-Xxxxx
|
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Xxxxxxx
X. XxxXxxx & Xxxx X. XxxXxxx,
JTWROS
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxxxxx X. XxxXxxx /s/ Xxxx X.
XxxXxxx
|
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Xxxxx
and Xxxxxx Xxxxxxxxxx,
J.T.I.C.
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxxx Xxxxxxxxxx /s/ Xxxxxx
Xxxxxxxxxx
|
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
R.
Xxxxx XxxXxxx Xx.
|
| Signature of Authorized Signatory of Purchaser: |
/s/
R. Xxxxx XxxXxxx
Xx.
|
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Xxxx
Xxxxx
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxx Xxxxx
|
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| Nameof Purchaser: |
Bristol
Investment Fund,
Ltd.
|
| Signature of Authorized Signatory of Purchaser: |
/s/
Xxxx Xxxxxxx
|
| Name of Authorized Signatory: | Xxxx Xxxxxxx |
| Title of Authorized Signatory: | Director |
[SIGNATURE
PAGES CONTINUE]
