ASSIGNMENT, ASSUMPTION, AND RELEASE
Exhibit 4.2
Execution Copy
ASSIGNMENT, ASSUMPTION, AND RELEASE
This ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT (this “Assignment”), dated as of November 26, 2014, is by and among THROWDOWN INDUSTRIES HOLDINGS, LLC, a Delaware limited liability company, as assignor (the “Assignor”), XFIT BRANDS, INC., a Nevada corporation, as assignee (the “Assignee”) and PIMCO FUNDS: PRIVATE ACCOUNT PORTFOLIO SERIES: PIMCO HIGH YIELD PORTFOLIO, A SEPARATE INVESTMENT PORTFOLIO OF PIMCO FUNDS, a Massachusetts business trust (the “Holder”). Capitalized terms used herein and not defined herein shall have the meanings set forth in the Warrant.
1. Assignment of Warrant. Effective as of the date hereof, the Assignor hereby absolutely assigns, transfers and conveys to the Assignee all of its rights, interests, duties, obligations and liabilities in, to and under the Warrant.
2. Assumption of Warrant. Effective as of the date hereof, the Assignee hereby absolutely accepts the assignment described in Section 1 and assumes all of the duties, obligations, and liabilities of the Assignor in, to and under the Warrant, to the same extent as if the Assignee had issued the Warrant (in the form of the Replacement Warrant (as defined below)). Without limiting the generality of the foregoing terms of this paragraph 2, the Assignee hereby (a) agrees to deliver a new Warrant substantially in the form attached as Exhibit A (the “Replacement Warrant”) to the Holder on the date hereof and, promptly upon receipt thereof, Holder agrees to return the original Warrant to the Assignor at the address set forth in the Warrant, and (b) promises to issue Holder shares of its Capital Stock (as defined in the Replacement Warrant) on the terms and conditions set forth in the Replacement Warrant upon any proper exercise by Holder of the Replacement Warrant.
3. Acknowledgement and Release. Holder hereby consents to the assignment of the Warrant to assignee and acknowledges that it will receive Assignee’s Capital Stock (as defined in the Replacement Warrant) upon any exercise of the Warrant. In addition, Holder confirms that from and after the execution and delivery of this Assignment by each of the Assignor and the Assignee and the Replacement Warrant by the Assignee, the Assignor is released and forever discharged from any duties, obligations and liabilities of the Company under the Warrant. The release contained herein is intended to be final and binding upon the parties hereto, and their respective heirs, successors and assigns. Each party agrees to cooperate in good faith and to execute such further documents as may be necessary to effect the provisions of this Assignment.
4. Notices to Assignee. The address of the Assignee for purposes of all notices and other communications is 00 Xxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention Xxxxx X. Xxxxxxx (email: xxxx.xxxxxxx@xxxxxxxxxx.xxx).
6. Governing Law. This Assignment shall in all respects be governed by, and construed in accordance with, the internal substantive laws of the State of New York, including all matters of construction, validity or interpretation of this Assignment.
7. Counterparts. This Assignment may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts shall constitute one and the same instrument. Delivery of an executed counterpart by of this Assignment by telecopy or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Assignment.
8. Binding Nature. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
ASSIGNOR: | THROWDOWN INDUSTRIES HOLDINGS, LLC | |
a Delaware limited liability company | ||
By: | /s/ Xxxxx X. Xxxxxxx | |
Name: Xxxxx X. Xxxxxxx | ||
Title: CEO | ||
ASSIGNEE: | XFIT BRANDS, INC., | |
a Nevada corporation | ||
By: | Xxxxx X. Xxxxxxx | |
Name: Xxxxx X. Xxxxxxx | ||
Title: CEO | ||
HOLDER: |
PIMCO FUNDS; PRIVATE ACCOUNT PORTFOLIO SERIES: PIMCO HIGH YIELD PORTFOLIO a Massachusetts business trust | |
By: | /s/ T. Xxxxxxxxx Xxxxxxx | |
Name: T. Xxxxxxxxx Xxxxxxx | ||
Title: Managing Director |
Exhibit A
WARRANT
THIS WARRANT HAS BEEN ISSUED IN REPLACEMENT OF THAT CERTAIN WARRANT CERTIFICATE NO. 1 ORIGINALLY ISSUED ON JUNE 12, 2014 (THE “ORIGINAL WARRANT”) TO EVIDENCE THE ASSIGNMENT OF THE ORIGINAL WARRANT FROM THROWDOWN INDUSTRIES HOLDINGS, LLC (THE “ASSIGNOR”) TO XFIT BRANDS, INC. (THE “COMPANY”) AND ASSUMPTION OF THE ORIGINAL WARRANT BY THE COMPANY PURSUANT TO THE TERMS OF THAT CERTAIN ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT, DATED AS OF NOVEMBER 26, 2014, BY AND AMONG ASSIGNOR, THE COMPANY AND PIMCO FUNDS: PRIVATE ACCOUNT PORTFOLIO SERIES: PIMCO HIGH YIELD PORTFOLIO, A SEPARATE INVESTMENT PORTFOLIO OF PIMCO FUNDS.
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SHARES IS EFFECTIVE UNDER THE ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW.
Warrant Certificate No.: 2
Original Issue Date: June 12, 2014
FOR VALUE RECEIVED, XFIT BRANDS, INC., a Nevada corporation (the “Company”), hereby certifies that PIMCO Funds: Private Account Portfolio Series: PIMCO High Yield Portfolio, a separate investment portfolio of PIMCO Funds, a Massachusetts business trust, or its registered assigns (the “Holder”) is entitled to purchase from the Company duly authorized and validly issued Capital Stock equal to the Applicable Percentage of the Capital Stock Deemed Outstanding, in each case, on the date of any exercise of this Warrant, at a purchase price equal to the applicable Exercise Price, all subject to the terms, conditions and adjustments set forth below in this Warrant.
“Applicable Percentage” means, as of any date of determination, ten percent (10%) less the aggregate of the Partial Exercise Percentages with respect to any shares of Capital Stock issued from time to time prior to such date of determination as a result of any partial exercise of this Warrant in accordance with Section 3.
“Business Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in the city of New York, New York are authorized or obligated by law or executive order to close.
“Capital Stock” means (i) the common stock, par value $0.0001 per share, of the Company, and (ii) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the Company, or control or otherwise participate in the management or governance of the Company.
“Capital Stock Deemed Outstanding” means, at any given time, the sum (without duplication) of (i) all Capital Stock actually outstanding at such time, plus (ii) all Capital Stock reserved for issuance at such time under stock option or other equity incentive plans approved by the board of directors of the Company, but only to the extent such Capital Stock is actually subject to outstanding Options at such time, whether or not any outstanding Options are actually exercisable at such time, plus (iii) all Capital Stock issuable upon exercise of any other Options (other than Options described in clause (ii) above) actually outstanding at such time, plus (iv) all Capital Stock issuable upon conversion or exchange of Convertible Securities actually outstanding at such time (treating as actually outstanding any Convertible Securities issuable upon exercise of Options actually outstanding at such time), other than Convertible Securities that constitute Capital Stock actually outstanding at such time, in each case, regardless of whether the Options or Convertible Securities are actually exercisable at such time.
“Company” has the meaning set forth in the preamble.
“Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for Capital Stock, but excluding Options.
“Exercise Date” means, for any given exercise of this Warrant, the date on which the conditions to such exercise as set forth in Section 3 shall have been satisfied at or prior to 5:00 p.m., New York time, on a Business Day, including, without limitation, the receipt by the Company of the Exercise Notice, the Warrant and the applicable Exercise Price.
“Exercise Notice” has the meaning set forth in Section 3(a)(i).
“Exercise Period” has the meaning set forth in Section 2.
“Exercise Price” means the product of (i) the Applicable Percentage (in the case of an exercise of this Warrant in whole) or the Partial Exercise Percentage (in the case of an exercise of this Warrant in part) and (ii) $15,000,000.
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“Fair Market Value” means, as of any particular date: (i) the volume weighted average of the closing sales prices of the Capital Stock for such day on all domestic securities exchanges on which the Capital Stock may at the time be listed; (ii) if there have been no sales of the Capital Stock on any such exchange on any such day, the average of the highest bid and lowest asked prices for the Capital Stock on all such exchanges at the end of such day; (iii) if on any such day the Capital Stock is not listed on a domestic securities exchange, the closing sales price of the Capital Stock as quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association for such day; or (iv) if there have been no sales of the Capital Stock on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association on such day, the average of the highest bid and lowest asked prices for the Capital Stock quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association at the end of such day; in each case, averaged over twenty (20) consecutive Business Days ending on the Business Day immediately prior to the day as of which “Fair Market Value” is being determined; provided, that if the Capital Stock is listed on any domestic securities exchange, the term “Business Day” as used in this sentence means Business Days on which such exchange is open for trading. If at any time the Capital Stock is not listed on any domestic securities exchange or quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association, the “Fair Market Value” of the Capital Stock shall be the fair market value per share as determined jointly by the board of directors of the Company and the Holder.
“Holder” has the meaning set forth in the preamble.
“Options” means any warrants or other rights or options to subscribe for or purchase Capital Stock or Convertible Securities.
“Original Issue Date” means June 12, 2014.
“Partial Exercise Percentage” means, with respect to any partial exercise of this Warrant in accordance with Section 3, the percentage of the Capital Stock Deemed Outstanding on the date of such partial exercise specified by the Holder in the related Exercise Notice; provided, that such percentage shall in no event exceed the Applicable Percentage as of such date.
“Nasdaq” means The NASDAQ Stock Market LLC.
“OTC Bulletin Board” means the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system.
“Person” means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust, incorporated organization or government or department or agency thereof.
“Pink OTC Markets” means the OTC Markets Group Inc. electronic interdealer quotation system, including OTCQX, OTCQB and OTC Pink.
“Warrant” means this Warrant and all warrants issued upon division or combination of, or in substitution for, this Warrant.
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“Warrant Shares” means the Capital Stock or other equity interest in the Company then purchasable upon exercise of this Warrant in accordance with the terms of this Warrant.
2. Term of Warrant. Subject to the terms and conditions hereof, at any time or from time to time after the date hereof and prior to 5:00 p.m., New York time, on June 12, 2024 or, if such day is not a Business Day, on the next preceding Business Day (the “Exercise Period”), the Holder of this Warrant may exercise this Warrant for all or any part of the Warrant Shares purchasable hereunder (subject to adjustment as provided herein). The Company shall give the Holder written notice of the expiration of the Exercise Period not less than thirty (30) days but not more than sixty (60) days prior to the end of the Exercise Period.
(i) surrender of this Warrant to the Company at its then principal executive offices (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft or destruction), together with an Exercise Notice in the form attached hereto as Exhibit A (each, an “Exercise Notice”), duly completed (including specifying whether such exercise is with respect to the Applicable Percentage or a stated Partial Exercise Percentage) and executed; and
(ii) payment to the Company of the applicable Exercise Price in accordance with Section 3(b).
(i) by delivery to the Company of a certified or official bank check payable to the order of the Company or by wire transfer of immediately available funds to an account designated in writing by the Company, in the amount of such Exercise Price;
(ii) by instructing the Company to withhold a portion of the Warrant Shares then issuable upon exercise of this Warrant with an aggregate Fair Market Value as of the Exercise Date equal to such Exercise Price;
(iii) by surrendering to the Company (x) Warrant Shares previously acquired by the Holder with an aggregate Fair Market Value as of the Exercise Date equal to such Exercise Price and/or (y) other securities of the Company having a value as of the Exercise Date equal to such Exercise Price (which value in the case of debt securities shall be the principal amount thereof plus accrued and unpaid interest and in the case of shares of Capital Stock shall be the Fair Market Value thereof); or
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(iv) any combination of the foregoing.
(i) This Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly issued.
(ii) All Warrant Shares issuable upon the exercise of this Warrant pursuant to the terms hereof shall be, upon issuance, and the Company shall take all such actions as may be necessary or appropriate in order that such Warrant Shares are validly issued and issued without violation of any preemptive or similar rights of any member of the Company and free and clear of all taxes, liens and charges.
(iii) The Company shall take all such actions as may be necessary to ensure that all such Warrant Shares are issued without violation by the Company of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which Capital Stock or other securities constituting Warrant Shares may be listed at the time of such exercise (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance).
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(iv) The Company shall use its best efforts to cause the Warrant Shares, immediately upon such exercise, to be listed on any domestic securities exchange upon which shares of Capital Stock or other securities constituting Warrant Shares are listed at the time of such exercise.
(v) The Company shall pay all expenses in connection with, and all taxes and other governmental charges that may be imposed with respect to, the issuance or delivery of the Warrant Shares by the Company upon exercise of this Warrant.
4. Effect of Certain Events on Warrant Shares.
(a) Adjustment to Warrant Shares Upon Reorganization, Reclassification, Consolidation or Merger. In the event of any (i) capital reorganization of the Company, (ii) reclassification of the equity of the Company, (iii) consolidation or merger of the Company with or into another Person, (iv) sale of all or substantially all of the Company's assets to another Person or (v) other similar transaction, in each case which entitles the holders of Capital Stock to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Capital Stock, each Warrant shall, immediately after such reorganization, reclassification, consolidation, merger, sale or similar transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the Warrant Shares then exercisable under this Warrant, be exercisable for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person resulting from such transaction to which the Holder would have been entitled upon such reorganization, reclassification, consolidation, merger, sale or similar transaction if the Holder had exercised this Warrant in full immediately prior to the time of such reorganization, reclassification, consolidation, merger, sale or similar transaction and acquired the Warrant Shares then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant); and, in such case, appropriate adjustment (in form and substance satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant to insure that the provisions of this Warrant shall thereafter be applicable, as nearly as possible, to any shares of stock, securities or assets thereafter acquirable upon exercise of this Warrant. The provisions of this Section 4(a) shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales or similar transaction. The Company shall not affect any such reorganization, reclassification, consolidation, merger, sale or similar transaction unless, prior to the consummation thereof, the successor Person (if other than the Company) resulting from such reorganization, reclassification, consolidation, merger, sale or similar transaction, shall assume, by written instrument substantially similar in form and substance to this Warrant and reasonably satisfactory to the Holder, the obligation to deliver to the Holder such shares of stock, securities or assets which, in accordance with the foregoing provisions, such Holder shall be entitled to receive upon exercise of this Warrant. Notwithstanding anything to the contrary contained herein, with respect to any corporate event or other transaction contemplated by the provisions of this Section 4(a), the Holder shall have the right to elect prior to the consummation of such event or transaction, to give effect to the exercise rights contained in Section 2 instead of giving effect to the provisions contained in this Section 4(a) with respect to this Warrant.
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(c) Certificate as to Adjustment.
(i) As promptly as reasonably practicable following any adjustment of the kind of Warrant Shares pursuant to the provisions of Section 4(a), but in any event not later than two (2) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation thereof.
(ii) As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than two (2) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the amount of other shares of stock, securities or assets then issuable upon exercise of the Warrant.
(i) that the Company shall take a record of the holders of its Capital Stock (or other securities at the time issuable upon exercise of the Warrant) for the purpose of entitling or enabling them to receive any dividend or other distribution, to vote at a meeting (or by written consent), to receive any right to subscribe for or purchase any Capital Stock of any type or any other securities, or to receive any other security; or
(ii) of any capital reorganization of the Company, any reclassification of the Capital Stock of the Company, any consolidation or merger of the Company with or into another Person, or sale of all or substantially all of the Company's assets to another Person; or
(iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;
then, and in each such case, the Company shall send or cause to be sent to the Holder at least 30 days prior to the applicable record date or the applicable expected effective date, as the case may be, for the event, a written notice specifying, as the case may be, (A) the record date for such dividend, distribution, meeting or consent or other right or action, and a description of such dividend, distribution or other right or action to be taken at such meeting or by written consent, or (B) the effective date on which such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up is proposed to take place, and the date, if any is to be fixed, as of which the books of the Company shall close or a record shall be taken with respect to which the holders of record of Capital Stock (or such other securities at the time issuable upon exercise of the Warrant) shall be entitled to exchange their Capital Stock (or such other securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Warrant and the Warrant Shares.
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8. Replacement on Loss; Division and Combination.
10. Compliance with the Securities Act.
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“THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SHARES IS EFFECTIVE UNDER THE ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW.”
(i) The Holder is an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act. The Holder is acquiring this Warrant and the Warrant Shares to be issued upon exercise hereof for investment for its own account and not with a view towards, or for resale in connection with, the public sale or distribution of this Warrant or the Warrant Shares, except pursuant to sales registered or exempted under the Securities Act.
(ii) The Holder understands and acknowledges that this Warrant and the Warrant Shares to be issued upon exercise hereof are “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In addition, the Holder represents that it is familiar with Rule 144A under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
(iii) The Holder acknowledges that it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Warrant and the Warrant Shares. The Holder has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Warrant and the business, properties, prospects and financial condition of the Company.
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(i) If the Company determines to register any of its securities, either for its own account or the account of a security holder or holders, other than (A) a registration on Form S-8 (or any successor form), (B) a registration on Form S-4 (or any successor form), or (C) a registration with respect to a distribution of shares of the Company’s common stock by TD Legacy, LLC, a Florida limited liability company to its members, the Company will include in such registration (and any related qualification under blue sky laws or other compliance), and in any underwriting involved therein, the Warrant Shares underlying this Warrant, subject to any reductions required due to the SEC’s interpretation of Rule 415 of the Securities Act.
(ii) If, in connection with the underwritten public offering by the Company, the managing underwriter(s) advise the Company in writing that, in their opinion, the number of securities requested to be included in such registration exceeds the number that can be sold in an orderly manner in such offering within a price range acceptable to the Company, the Company will include in such registration (i) first, the securities proposed to be sold by the Company in such public offering; (ii) second, the Warrant Shares; and (iii) third, the securities that each other selling stockholder has requested that the Company include in such registration. The Holder agrees, if requested by the managing underwriter(s) for any such offering, to execute a lock up agreement in connection with any such registration for a period of the date of filing of such registration statement and ending 90 days after effectiveness of said registration statement.
(iii) The Holder agrees, if requested by the Company, to execute a mutually acceptable registration rights agreement.
(iv) All expenses incurred in connection with registrations, filings, or qualifications pursuant to this Section 10(c), including all registration, filing, and qualification fees; printers’ and accounting fees; fees and disbursements of counsel for the Company; and the reasonable fees and disbursements of one counsel for the Holder shall be borne and paid by the Company.
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If to the Company: |
XFit Brands, Inc. Xxxxxx, XX 00000 |
If to the Holder: | PIMCO Funds: Private Account Portfolio Series: PIMCO High Yield Portfolio c/o Pacific Investment Management Co. 000 Xxxxxxx Xxxxxx Xx. Xxxxxxx Xxxxx, XX 00000 E-mail: Xxxxxx@xxxxx.xxx Attention: Xxxxx Xxxxxx |
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22. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Warrant or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of New York, in each case located in the city of New York and Borough of Manhattan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by certified or registered mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has duly executed this Warrant on the Original Issue Date.
XFIT BRANDS, INC. | ||
By: | ||
Name: | ||
Title: |
Accepted and agreed, | ||
PIMCO FUNDS: PRIVATE By: Pacific Investment Management Company LLC, as its Investment Advisor, acting through Investors Fiduciary Trust Company, in the Nominee Name of IFTCO |
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By: | ||
Name: | ||
Title: |
EXHIBIT A
WARRANT EXERCISE NOTICE
This Warrant Exercise Notice (this “Notice”), dated [_____ __], 20[__], relates to Warrant Number [__] dated [_], 20[__] (the “Warrant”) issued by Xfit Brands, Inc., a Nevada corporation (the “Company”), to PIMCO Funds: Private Account Portfolio Series: PIMCO High Yield Portfolio, a separate investment portfolio of PIMCO Funds, a Massachusetts business trust (the “Holder”), pursuant to which the Holder is entitled to subscribe for and purchase the Warrant Shares described therein. Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
Denomination | Register to | |
(i) With respect to [__]% of such Exercise Price, the Holder shall, no later than one (1) Business Day after the date of this Notice, deliver to the Company a certified or official bank check payable to the order of the Company or initiate a wire transfer of immediately available funds to an account designated in writing by the Company, in the amount of such portion of such Exercise Price.
(ii) With respect to [__]% of such Exercise Price, the Holder hereby instructs the Company to withhold a portion of the Warrant Shares issuable upon this Exercise with an aggregate Fair Market Value as of the date hereof equal to such portion of such Exercise Price.
(iii) With respect to [__]% of such Exercise Price, the Holder is surrendering to the Company herewith (x) Warrant Shares previously acquired by the Holder with an aggregate Fair Market Value as of the date hereof equal to such portion of such Exercise Price and/or (y) other securities of the Company having a value as of the date hereof equal to such portion of such Exercise Price (which value in the case of debt securities is the principal amount thereof plus accrued and unpaid interest and in the case of shares of Capital Stock is the Fair Market Value thereof).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Very Truly Yours, | ||
PIMCO FUNDS: PRIVATE ACCOUNT PORTFOLIO SERIES: PIMCO HIGH YIELD PORTFOLIO | ||
By: Pacific Investment Management Company LLC, as its Investment Advisor, acting through Investors Fiduciary Trust Company, in the Nominee Name of IFTCO | ||
By: | ||
Name: | ||
Title: |
EXHIBIT B
FORM OF ASSIGNMENT