WARRANT ASSIGNMENT AGREEMENT
EXHIBIT
10.5
This
Warrant Assignment Agreement (this “Assignment”)
is
made and entered into as of the ___ day of September 2008 (the
“Effective
Date”),
by
and between ________________ (the “Assignor”)
and
_______________ (the “Assignee”).
RECITALS:
WHEREAS,
the Assignor is the owner of certain warrants (the “Warrants”)
to
purchase shares of common stock, par value $0.001 per share (the “Stock”),
issued
by Purple Beverage Company, Inc., a Nevada corporation (“Company”)
as set
forth on Exhibit
A
annexed
hereto, at an initial exercise price of $2.00 per share, issued in connection
with Assignor’s purchase of Common Stock and Warrants during December 2007
pursuant to a Subscription Agreement by and between Assignor and Company
(the
“Subscription
Agreement”);
WHEREAS,
Company has registered for resale 3,681,650 shares of Stock underlying the
Warrants under the Securities Act of 1933, as amended, and Assignee desires
to
acquire up to such number of registered shares in one or more
closings;
WHEREAS,
the Company has amended the Warrants to (i) reduce the exercise price of
all
unexercised Warrants to $0.40 per share, (ii) grant to the Assignor of the
Warrants, newly-issued restricted shares of the Company’s Stock in an amount
equal to 15% of the amount of Stock into which each unexercised Warrant is
currently exercisable, (iii) permit the transfer and assignment of registered
Warrants with the reduced exercise price of $0.40 per share, and (iv) and
has
consented to the other transactions contemplated hereby, subject to the terms
and conditions hereof;
WHEREAS,
the Assignor acknowledges
and agrees that it is in Assignor’s interest that the Company seek to obtain
financing from the exercise of the Warrants and that Assignor has been offered
the opportunity to exercise the Warrants owned by Assignor and determined
to
effectuate this transfer and assignment and that the exercise of Warrants
provides a benefit to Assignor by providing additional capital to the Company,
and that such is additional consideration for the assignment, and therefore
Assignor has elected to and desires
to sell, transfer, assign and convey the Warrants to the Assignee and Assignee
desires to exercise such Warrants for cash contemporaneously or following
such
assignment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties to this Assignment hereby agree
as
follows:
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1.
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Assignment
of Interest.
In consideration of the payment of the Assignment Price to Assignor,
Assignor hereby sells, transfers, assigns and conveys to the Assignee,
as
of the Effective Date, all of Assignor’s right, title and interest in and
to the Warrants, free and clear of all liens, encumbrances, security
interests, claims or options and hereby irrevocably constitutes
and
appoints the officers of the Company as Assignor’s attorney-in-fact to
transfer the Warrants as well as underlying Stock upon exercise
of the
Warrants on the books
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and
transfer records of the Company. Assignor and Assignee agree that neither
party
is making any representation or warranty to the other, except as expressly
set
forth in this Agreement.
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2.
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Acceptance.
The Assignee hereby accepts the assignment of the Warrants and
expressly
assumes and promises to perform all obligations of Assignor under
the
Warrants. Assignee represents and warrants it is an “accredited investor”
as such term is defined in Rule 501(a) promulgated under the Securities
Act of 1933, as amended.
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3.
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Assignment
Price.
The Assignment Price of the Assignment hereunder shall be $0.01
per
share.
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4.
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Exercise.
Assignee agrees to exercise the Warrant in
such amount as shall be set forth in duly executed warrant exercise
forms
approved for such purpose in the form approved by the Company and
attached
to the form of Warrant as Exhibit A thereto, and
agrees to transmit the warrant exercise price (number of shares
set forth
in Exhibit A multiplied by $0.40 per share) to the following within
two
(2) business days of the date of such
exercise:
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Receiving
Bank
ABA
Wire # 063 000 021
Wachovia
Bank
000
Xxxx
Xxx Xxxx Xxxx, Xxxxx 0000
Xx
Xxxxxxxxxx, XX 00000
(T)
000-000-0000
Beneficiary
Account
# 200 003 459 5990
Purple
Beverage Company, Inc
000
Xxxx
Xxx Xxxx Xxxx, Xxxxx 000
Xx
Xxxxxxxxxx, XX 00000
(T)
000-000-0000
Assignee
shall deliver to Company an exercise notice in the form approved by the Company
and attached to the form of Warrant as Exhibit A thereto.
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5.
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Condition
Precedent.
A
condition precedent to the Assignment of the Warrant to the Assignee
and
the issuance of new warrants to Assignor and Assignee shall be
Company’s
receipt of the consent of the holders of Warrants and Shares (as
defined
in the Subscription Agreement) including underlying unexercised
Warrants,
sufficient to authorize the transactions contemplated hereby (including
as
set forth in paragraph 6 hereof) and thereupon the Assignment shall
become
effective.
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6.
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Consent
and Amendment of Warrant.
By their execution below, Company, Assignor (in Assignor’s capacity as
Warrant holder with respect to the Warrants and in Assignor’s capacity as
owner of Shares as defined in and purchased pursuant to the Subscription
Agreement) and Assignee hereby consent to the Assignment of the
Warrants
provided herein, and all other transactions, amendments, modifications
and
waivers to the Warrants as contemplated herein, such consent to
be
effective upon the receipt of the written consent in accordance
with
Section 13(b) and 13 (h) of the Subscription Agreement for the
Shares
and
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the
Warrants which shall constitute an amendment to the Subscription Agreement
and
all documents and agreements related thereto.
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7.
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Listing
Application.
Company agrees it shall use its best efforts to submit an AMEX
listing
application (or other national exchange as determined by the Board
of
Directors) prior to January 30,
2009.
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8.
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Future
Cooperation.
Company, Assignor and Assignee mutually agree to cooperate at all
times
from and after the date hereof with respect to any of the matters
described herein, and to execute any further agreements or documents
as
may be reasonably requested by the other party for the purpose
of giving
effect to, evidencing or giving notice of the transaction evidenced
by
this Assignment.
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9.
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Counterparts.
This Assignment may be executed in any number of counterparts,
all of
which taken together shall constitute one and the same
Assignment.
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10.
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Governing
Law.
This
Agreement shall be governed by and construed in accordance with
the
internal laws of the State of New York without regard to principles
of
conflicts of laws. Any action brought by any party to this Agreement
against any other party concerning the transactions contemplated
by this
Agreement shall be brought only in the state courts of New York
or in the
federal courts located in the state and county of New York. The
parties to
this Agreement hereby irrevocably waive any objection to jurisdiction
and
venue of any action instituted hereunder and shall not assert any
defense
based on lack of jurisdiction or venue or based upon forum
non conveniens.
The
Parties executing this Agreement and other agreements referred
to herein
or delivered in connection herewith on behalf of the Company agree
to
submit to the in personam jurisdiction of such courts and hereby
irrevocably waive trial by jury. The
prevailing Party shall be entitled to recover from the other Party
its
reasonable attorney’s fees and costs. In the event that any provision of
this Agreement or any other agreement delivered in connection herewith
is
invalid or unenforceable under any applicable statute or rule of
law, then
such provision shall be deemed inoperative to the extent that it
may
conflict therewith and shall be deemed modified to conform with
such
statute or rule of law. Any such provision which may prove invalid
or
unenforceable under any law shall not affect the validity or
enforceability of any other provision of any
agreement.
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IN
WITNESS WHEREOF, the undersigned have executed this Assignment effective
as of
the Effective Date.
ASSIGNOR:
By:
_____________________________
Name:
Title:
ASSIGNEE:
By:
_____________________________
Name:
Title:
AGREED
AND ACCEPTED:
COMPANY
By:
_____________________________
Name:
Title:
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EXHIBIT
A
REGISTERED
WARRANTS OWNED ______________________________
REGISTERED
WARRANTS ASSIGNED ______________________________
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