EXHIBIT 10.41
MAXIM GROUP
June 10, 2005
Xx. Xxxxx Xxxxxxxx
President
XStream Beverage Network, Inc.
0000 XX 00xx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
Gentlemen:
This is Addendum No. 1 to the advisory agreement dated April 25, 2005, by and
between XStream Beverage Network, Inc. and Maxim Group LLC (the "Agreement").
The parties agree that the Agreement is amended as set forth in this Addendum.
Terms used in this Addendum with the initial letter capitalized which are not
otherwise defined will have the meaning given to such terms in the Agreement.
Except as specifically amended in this Addendum, the Agreement will remain in
full force and effect in accordance with its terms.
1. Section 1(b) of the Agreement shall be amended and restated in its entirety
to read as follows:
"Advise the Company on all matters relating to a contemplated follow-on
public offering of approximately $20,000,000, a contemplated private
placement from Cogent Capital Corporation (the "Cogent Placement"), as well
as evaluate alternative financing structures and arrangements;".
2. A new Section 3(c) of the Agreement shall be added to read as follows:
"In connection with the Cogent Placement, the Company shall pay Maxim a
cash fee of ten percent (10%) of the amount raised and grant warrants to
purchase up to two percent (2%) of the number of securities sold or issued
in the form of, at Maxim's option, (a) the securities issued pursuant to
the Cogent Placement or (b) common stock of the Company. The warrants shall
have (a) an exercise price equal to that of the securities issued, (b) a
5-year term, (c) standard anti-dilution protections for warrants of this
type, and (d) unlimited "piggy-back" registration rights. The Company shall
file a new registration statement covering resale of the common shares
underlying the securities in the Cogent Placement within 60 days from the
effective date of the Company's current SB-2 filing and cause such new
registration statement to be effective with 120 days from the filing. As
proceeds from the Cogent Placement are made available to the Company from
time to time, the Company shall pay to Maxim 25% of any such proceeds until
the amount of the cash fee owed to Maxim is paid in full. A monthly cash
penalty of 1% shall apply on the dollar amount of Maxim's cash fee in the
event of any delay in filing."
3. The current Section 3(c) will now become Section 3(d) and the current
Section 3(d) will now become Section 3(e).
4. Exhibit C (b) of the Agreement shall be amended and rested in its entirety
to read as follows:
"Grant Maxim Placement Agent Warrants to purchase up to 10% of the number
of securities sold or issued in the form of, at Maxim's option, (a) the
securities issued pursuant to a Financing or a Transaction or (b) common
stock of the Company. The Placement Agent Warrants shall have (a) an
exercise price equal to that of the securities issued pursuant to the
transaction, (b) a 5-year term, (c) standard antidilution protections for
warrants of this type, and (d) unlimited "piggy-back" registration rights;
and". ~
5. Effective Date. This Addendum is effective as of June 10, 2005.
Very truly yours,
Maxim Group LLC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Managing Director
V
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
Director of Investment Banking
Agreed to and accepted:
XStream Beverage Network, Inc.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: President
