AMENDMENT NO. 1 TO CONVERTIBLE DEBENTURE PURCHASE AGREEMENT
This Amendment No. 1 to the Convertible Debenture Purchase Agreement (the
"Amendment") is made and entered into on this ___ day of April, 2004, by and
between Orange Soda, Inc., a Delaware corporation (the "Company") and HEM Mutual
Assurance LLC., a limited liability corporation organized under the laws of the
State of Colorado (the "Purchaser").
RECITALS.
A. The parties described above entered into Convertible Debenture Purchase
Agreement on the 27th day of October, 2003, a copy of which is attached
hereto and made a part hereof as Exhibit A hereto (the "Purchase
Agreement").
B. The parties have elected to amend the terms of Exhibits A-3 and K-2 and
have elected to reduce the amendment to writing as provided for herein.
Now, therefore in consideration of the mutual covenants contained herein
and other good and viable consideration the receipt and sufficiency of which is
hereby acknowledged, each of the parties agrees as follows:
1. Amendement of Purchase Agreement. (a) All references in the Purchase
Agreement to "Exhibit A-3" shall be read as "Exhibit X-0x, Xxxxxxx X-0x xxx
Xxxxxxx X-0x".
(x) All references in the Purchase Agreement to "Exhibit K-2" shall be
read as "Exhibit K-2a, Exhibit K-2b and Exhibit K-2c".
(c) All references in the Purchase Agreement to "Note C" shall be read
as "Note C1, Note C2 and Note C3".
(d) All references in the Purchase Agreement to "First Debenture C"
shall be read as references to "First Debenture C1, First Debenture
C2 and First Debenture C3".
(e) Exhibit A-3 of the Purchase Agreement is hereby replaced with
Exhibit B hereto.
(f) Exhibit K-2 of the Purchase Agreement is hereby replaced with
Exhibit C hereto.
2. Entire Agreement. This Amendment constitutes the entire agreement among
the parties. No provision hereof may be amended, modified or waived except in
writing, executed by all parties hereto. This Amendment supercedes all prior
negotiations, representations and agreements made by and among the parties with
respect to the subject matter referred to above. The illegality of any provision
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of this Amendment shall not render any other provision hereof illegal or
otherwise affect the enforceability of this Amendment.
3. Binding Effect; Benefits. This Amendment shall inure to the benefit of
and shall be binding upon the parties hereto and their respective heirs,
administrators, executors, successors and permitted assigns. Nothing in this
Amendment, express or implied, is intended to confer on any person other than
the parties hereto or their respective heirs, administrators, executors,
successors and permitted assigns, any rights, remedies, obligations or
liabilities.
4. Governing Law and Jurisdiction. This Amendment shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be governed by, and construed and enforced in accordance with, the laws of
the State of New York applicable to contracts to be made and performed entirely
within the state and no defense given or allowed by the laws of any other state
or country shall be interposed in any action or proceeding herein, unless such
defense is also given or allowed by the laws of the State of New York and not
waived hereby. The courts of the State of New York shall have exclusive
jurisdiction over all controversies or disputes relating to or arising out of
this Amendment, including without limitation, with respect to the
interpretation, performance or breach of this Amendment. The parties consent to
personal jurisdiction in the courts of such State and agree that process may be
served upon them in any such action by prepaid air courier with simultaneous
notice to such parties' counsel herein named, at the address set forth herein or
on the signature page hereto, or in any other manner permitted by New York law.
5. Headings. Headings in this Amendment are for reference purposes only
and shall not be deemed to have any substantive effect.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall be deemed to be one and the same instrument.
7. Facsimile Signatures. This Amendment may be signed by facsimile copy
and shall be valid and binding upon delivery by facsimile of a signed copy.
[SIGNATURE PAGE TO IMMEDIATELY FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Orange Soda, Inc.
By:
---------------------------
Name: Xxxxx Xxxxxxx
Title: President
-----------------------
HEM MUTUAL ASSURANCE LLC
By:
---------------------------
Name: Xxxxxx Xxxxxxxx
Title: Manager
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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