Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT - Attitude Drinks Inc. | f8k071511_attitudedrink.htm |
| EX-10.5 - ESCROW AGREEMENT - Attitude Drinks Inc. | f8k071511ex10v_attitude.htm |
| EX-10.2 - FORM OF CONVERTIBLE PROMISSORY NOTE - Attitude Drinks Inc. | f8k071511ex10ii_attitude.htm |
| EX-10.6 - PLACEMENT AGENT AGREEMENT - Attitude Drinks Inc. | f8k071511ex10vi_attitude.htm |
| EX-10.3 - FORM OF CLASS A COMMON STOCK PURCHASE WARRANT - Attitude Drinks Inc. | f8k071511ex10iii_attitude.htm |
| EX-10.1 - SUBSCRIPTION AGREEMENT - Attitude Drinks Inc. | f8k071511ex10i_attitude.htm |
Exhibit 10.4
FORM OF FOURTH AMENDMENT AND CONSENT AGREEMENT
This Fourth Amendment and Consent Agreement is made as of the 15th day of July, 2011 (“Agreement”) among Attitude Drinks Inc., a Delaware corporation (the “Company”), and the signators hereto who are “Subscribers” under certain Subscription Agreements with the Company dated October 23, 2007, January 8, 2008, September 29, 2008, January 27, 2009, March 30, 2009, July 15, 2010, January 21, 2011, and March 17, 2011, respectively (collectively “Subscription Agreements”).
WHEREAS, the Company is in need of additional funding for its business operations; and
WHEREAS, the Company is contemplating an additional investment of an aggregate of no minimum and up to a maximum of $1,000,000 Purchase Price (“New Financing”) in secured promissory notes (“Notes”) and common stock purchase warrants (“Warrants”) of the Company; and
NOW THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby consent and agree as follows:
1. All capitalized terms herein shall have the meanings ascribed to them in the Transaction Documents (as defined in the Subscription Agreements).
2. The undersigned consent to the Company completing the New Financing and to the amendment of the Security Agreement, and Guaranty to include the New Financing as part of the Obligations and are secured by the Collateral pursuant to the security interest granted pari passu among Subscribers and the investors in the New Financing and in connection therewith authorize the Collateral Agent to make such additional filings at the discretion of the Collateral Agent to memorialize such agreement.
3. Annexed hereto is the proposed Amended Schedule A to the Security Agreement, Guaranty and Collateral Agent Agreement which includes the New Financing.
4. The undersigned acknowledge that Events of Default may have occurred in notes currently issued and outstanding by the Company pursuant to the Subscription Agreements, but waive the Events of Default until the Maturity Date (as extended).
5. The undersigned Subscribers to the Subscription Agreements waive the rights granted to them pursuant to Section 12(b), Right of First Refusal and the restrictions contained in Sections 9(p) Negative Covenants and 9(q) Seniority of the Subscription Agreements, all of the aforementioned only to the extent such rights relate to the New Financing.
6. All other terms of the Transaction Documents shall remain unamended and in full force and effect.
7. This Agreement constitutes the entire agreement among the parties, and supersedes all prior and contemporaneous agreements and understandings of the parties in connection herewith. No changes, modifications, terminations or waivers of any of the provisions hereof shall be binding unless in writing and signed by all of the parties thereto.
8. Except as expressly modified pursuant to this Agreement, the terms of each Note remains unchanged and in full force and effect.
9. This Agreement may be executed in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Agreement may also be executed by either party hereto by facsimile signature, which shall be deemed to be an original signature of such party hereon.
[Signatures to Follow]
IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as of the date first written above.
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"COMPANY"
ATTITUDE DRINKS INC.
a Delaware corporation
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"THE COLLATERAL AGENT"
BARBARA R. MITTMAN
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| By: | |||
| Its: |
| SMIVEL, LLC By: Joseph Smith, Partner | MONARCH CAPITAL FUND LTD. | |
| ALPHA CAPITAL ANSTALT | CMS CAPITAL | |
| WHALEHAVEN CAPITAL FUND LIMITED | MOMONA CAPITAL LLC | |
| CENTAURIAN FUND | NAOMI KLISSMAN | |
| SCHLOMO & ROCHEL RIFKIND | DAVID M. LAMPLOUGH | |
| PSM HOLDINGS | J. MAYA IRA | |
| EMMY CUTLER IRA | SAM BERKOWITZ | |
| J & N INVEST LLC | JOE & SUE MAYA | |
| LINDA R. IENNACO | SETH FARBMAN | |
| RAMSHEAD HOLDING LTD. | ||
| ESCROW AGENT | ||
| GRUSHKO & MITTMAN, P.C. |
AMENDED SCHEDULE A TO SECURITY AGREEMENT
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LENDERS AND ADDRESSES
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SMIVEL, LLC
12642 SW 103 Court
Miami, FL 33176
Attn: Joseph Smith, Partner
Tel: (305) 233-3353
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ALPHA CAPITAL ANSTALT
Pradafant 7
9490 Furstentums
Vaduz, Lichtenstein
Fax: 011-42-32323196
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WHALEHAVEN CAPITAL FUND LIMITED
3rd Fl., 14 Par-La-Ville Rd.
Hamilton, Bermuda HM08
Fax: (201) 782-9327
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MONARCH CAPITAL FUND LTD.
Harbour House, 2nd Floor
Waterfront Drive, Road Town
Tortola, BVI
Fax (284) 494-4771
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CMS CAPITAL
9612 Van Nuys Blvd. #108
Panorama City, CA 91402
Fax: (818) 907-3372
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MOMONA CAPITAL LLC
150 Central Park South, 2nd Floor
New York, NY 10019
Fax: (212) 586-8244
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CENTAURIAN FUND
739 Palmer Avenue
Teaneck, NJ 07666
Fax:
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NAOMI KLISSMAN
5/16 Katzenlson Street
Jerusalem, Israel 92621
Fax:
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SAM BERKOWITZ
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Schlomo & Rochel Rifkind
Givat Shoshanna 12/3
Tzfut Israel
Fax: 972 4 6970443
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David M. Lamplough
c/o NASA Services Limited
2 Poynings Road
Crawley RH11 0TW
United Kingdom
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PSM Holdings
c/o PHD Capital
5 Hanover Square #500
New York, NY 10004
Stephen J. Payne
Fax: (212) 269-3087
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J. Maya IRA
c/o PHD Capital
5 Hanover Square #500
New York, NY 10004
Joseph Maya
Fax: (212) 269-3087
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Emmy Cutler IRA
c/o PHD Capital
5 Hanover Square #500
New York, NY 10004
Emmy Cutler
Fax: (212) 269-3087
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J & N INVEST LLC
124 East 8th Street
Lakewood, NJ 09701
Attn: Jeffrey Rubin
Fax: (732) 905-9049
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JOE & SUE MAYA
8 Salem Lane
Westport, CT 06880-3721
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LINDA R. IENNACO
57 West 75th Street, 4C
New York, NY 10023
Fax: (212) 873-9042
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SETH FARBMAN
354 Eastwood Road
Woodmere, NY 11598
Fax: (212) 730-4306
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RAMSHEAD HOLDING LTD.
57 / 63 Line Wall Road
Gibraltar
Attn: Lawrence Abrams
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