Exhibit 10.3
WAIVER AND
AMENDMENT
THIS WAIVER AND
AMENDMENT, dated as
of February __, 2007 (the “ Amendment ”), to the
promissory note (the “ Note ”) issued by
Pure Vanilla eXchange, Inc. , a Nevada corporation
(the “ Company ”) on [date] to [name] (the
“ Holder ”) Capitalized terms used and
not otherwise defined herein that are defined in the Note shall
have the meanings given such terms in the Note.
RECITALS
Subject to the terms and conditions of this
Amendment, the Company has requested, and the Holder has agreed to
waive compliance with certain terms of the Note and all Events of
Default; and
Subject to the terms and conditions of this
Amendment, the Company has requested, and the Holder has agreed, to
amend the Note to provide for an extension of the date interest and
principal will be due under the Note.
The Holder has agreed to accept the Warrant in
the form attached hereto as Exhibit B as consideration for the
waivers and amendments set forth herein.
Accordingly, in consideration of the premises
and of the mutual covenants and agreements hereinafter set forth,
the parties hereto agree as follows:
Holder hereby waives compliance by the Company
with its obligation to pay interest on the outstanding principal
balance of the Note or any payment of principal due on or before
the date of this Amendment. Each and every failure of the Company
to comply with such obligations is separately waived as of the date
of such failure and none of such failures thereafter constitute an
Event of Default.
2. Amendments . The Holder and the Company hereby agree to
amend the Note as follows:
(a) The first sentence of Section 1 is stricken and
replaced with the following:
Maker shall
pay principal and accrued interest on the earlier of (i) two
business days after the date on which the Company has raised and
reported, in the aggregate from February 12, 2007 to the date of
such report, $20 million of “Net Financing” (defined
below) and (ii) May 15, 2007. For the purposes of this Note,
“ Net Financing ” means, the gross proceeds
received by the Company from the sale of any of its securities,
less any loans that have been outstanding for a term of less than
six months on the date such financing is closed (regardless of the
maturity at the date of issue) that are repaid from the proceeds of
the Financing.
(b) Section 2 of the Note is amended by adding the
following after the words, “amount of principal being
pre-paid”:
The terms
of prepayment are also governed by Section 6.15 of a Loan Agreement
between the Company and the Holder dated May 23, 2006, which
section is incorporated herein by reference.
THIS WAIVER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
Except as expressly waived and/or amended
hereby, the Note. shall remain in full force and effect in
accordance with the terms thereof. The waivers and amendments
herein are limited specifically to the matters set forth above and
do not constitute directly or by implication an amendment or waiver
of any other provision of the Note or of any Event of Default or
default which may occur or may have occurred.
This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all
of which, when taken together, shall constitute but one
Amendment.
PURE
VANILLA EXCHANGE, INC.
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By:_____________________________
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_______________________________
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EXHIBIT
B
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF
ANY STATE PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”). THIS WARRANT SHALL NOT CONSTITUTE
AN OFFER TO SELL NOR A SOLICITATION OF AN OFFER TO BUY THE
SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
WOULD BE UNLAWFUL. THE SECURITIES ARE “RESTRICTED” AND
MAY NOT BE RESOLD OR TRANSFERRED EXCEPT AS PERMITTED UNDER THE ACT
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
Issue
Date : Tuesday,
February 20, 2007
COMMON STOCK PURCHASE
WARRANT
To Purchase Shares of $0.001
Par Value Common Stock (
“Common Stock” ) of
PURE VANILLA EXCHANGE,
INC.
THIS CERTIFIES that, for value received,
Name (the “ Holder ”)
is entitled, upon the terms and subject to the conditions
hereinafter set forth, at any time on or after the Issue Date and
on or prior to 8:00 p.m. New York City Time on the three (3) year
anniversary of the Issue Date (the “ Termination
Date ”), but not thereafter, to subscribe for and
purchase from PURE VANILLA EXCHANGE, INC., a Nevada corporation
(the “ Company ”), 00,000 shares of
Common Stock (the “ Warrant
Shares ”) of the Company at an Exercise
Price per share equal to $0.80 per share (as adjusted from time to
time pursuant to the terms hereof, the “
Exercise Price ”).
The Exercise Price and the number of shares for which the Warrant
is exercisable shall be subject to adjustment as provided herein.
This Warrant is being issued in connection with the Waiver and
Amendment Agreement dated February 13, 2007 (the
“Waiver”) entered into between the Company and the
Holder. Capitalized terms used herein and not otherwise defined
shall have the meaning ascribed thereto in the Waiver.
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1.
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Title of
Warrant . Prior to the
expiration hereof and subject to compliance with applicable laws,
this Warrant and all rights hereunder are transferable, in whole or
in part, at the office or agency of the Company by the Holder
hereof in person or by duly authorized attorney, upon surrender of
this Warrant together with (a) the Assignment Form annexed hereto
properly endorsed, and (b) any other documentation reasonably
necessary to satisfy the Company that such transfer is in
compliance with all applicable securities laws. The term “
Holder ” shall refer to the Holder or any
subsequent transferee of this Warrant.
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2.
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Authorization of Shares . The Company covenants that all shares of
Common Stock which may be issued upon the exercise of rights
represented by this Warrant will, upon exercise of the rights
represented by this Warrant and payment of the Exercise Price as
set forth herein, be duly authorized, validly issued, fully paid
and nonassessable and free from all taxes, liens and charges in
respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue or otherwise
specified herein).
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(a)
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The Holder may
exercise this Warrant, in whole or in part, at any time and from
time to time, by delivering to the offices of the Company or any
transfer agent for the Common Stock this Warrant, together with a
Notice of Exercise in the form annexed hereto specifying the number
of Warrant Shares with respect to which this Warrant is being
exercised, together with payment to the Company of the Exercise
Price therefor.
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In the event
that the Warrant is not exercised in full, the number of Warrant
Shares shall be reduced by the number of such Warrant Shares for
which this Warrant is exercised and/or surrendered, and the
Company, at its expense, shall within three (3) Trading Days (as
defined below) issue and deliver to the Holder a new Warrant of
like tenor in the name of the Holder or as the Holder (upon payment
by Holder of any applicable transfer taxes) may request, reflecting
such adjusted Warrant Shares.
The Company
shall use its best efforts to deliver the certificates for shares
of Common Stock purchased hereunder to the Holder hereof within
three (3) Trading Days after the date on which this Warrant shall
have been exercised as aforesaid. The Holder may withdraw its
Notice of Exercise at any time if the Company fails to deliver
within 10 calendar days the relevant certificates to the Holder as
provided in this Agreement.
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The term
“ Trading Day ” means (x) if the
Common Stock is not listed on the New York or American Stock
Exchange but sale prices of the Common Stock are reported on Nasdaq
National Market or another automated quotation system, or the
Nasdaq Bulletin Board, a day on which trading is reported on the
principal automated quotation system or market on which sales of
the Common Stock are reported, (y) if the Common Stock is listed on
the New York Stock Exchange or the American Stock Exchange, a day
on which there is trading on such stock exchange, or (z) if the
foregoing provisions are inapplicable, a day on which quotations
are reported by National Quotation Bureau Incorporated or by Pink
Sheets, LLC (the foregoing being referred to herein as the
“Principal Market” .
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4.
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No
Fractional Shares or Scrip . No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this
Warrant. In lieu of issuance of a fractional share upon any
exercise hereunder, the Company will either round up to nearest
whole number of shares or pay the cash value of that fractional
share calculated on the basis of the Fair Market Value (as defined
below).
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5.
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Charges,
Taxes and Expenses .
Issuance of certificates for shares of Common Stock upon the
exercise of this Warrant shall be made without charge to the Holder
hereof for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall
be issued in the name of the Holder of this Warrant or in such name
or names as may be directed by the Holder of this Warrant;
provided , however , that in the event certificates
for shares of Common Stock are to be issued in a name other than
the name of the Holder of this Warrant, this Warrant when
surrendered for exercise shall be accompanied by the Assignment
Form attached hereto duly executed by the Holder hereof; and
provided further , that the Company shall not
be required to pay any tax or taxes which may be payable in respect
of any transfer involved in the issuance of any Warrant
certificates or any certificates for the Warrant Shares other than
the issuance of a Warrant Certificate to the Holder in connection
with the Holder’s surrender of a Warrant Certificate upon the
exercise of all or less than all of the Warrants evidenced
thereby.
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6.
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Closing of
Books . The Company will
at no time close its shareholder books or records in any manner
which interferes with the timely exercise of this
Warrant.
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7.
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No Rights as
Shareholder until Exercise . Subject to Section 12 of this Warrant and the
provisions of any other written agreement between the Company and
the Holder, the Holder shall not be entitled to vote or receive
dividends or be deemed the holder of Warrant Shares or any other
securities of the Company that may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained
herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders
at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of
stock, reclassification of stock, change of par value, or change of
stock to no par value, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant
shall have been exercised as provided herein. However, at the time
of the exercise of this Warrant pursuant to Section 3 hereof, the
Warrant Shares so purchased hereunder shall be deemed to be issued
to such Holder as the record owner of such shares as of the close
of business on the date on which this Warrant shall have been
exercised.
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8.
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Assignment
and Transfer of Warrant .
This Warrant may be assigned by the surrender of this Warrant and
the Assignment Form annexed hereto duly executed at the office of
the Company (or such other office or agency of the Company or its
transfer agent as the Company may designate by notice in writing to
the registered Holder hereof at the address of such Holder
appearing on the books of the Company); provided ,
however , that this Warrant may not be resold or otherwise
transferred except (i) in a transaction registered under the
Securities Act of 1933, as amended (the “
Act ”), or (ii) in a transaction pursuant to
an exemption, if available, from registration under the Act and
whereby, if reasonably requested by the Company, an opinion of
counsel reasonably satisfactory to the Company is obtained by the
Holder of this Warrant to the effect that the transaction is so
exempt. If this Warrant is duly assigned in accordance with the
terms hereof, then the Company agrees, upon the request of the
assignee, to amend or supplement promptly any effective
registration statement covering the Warrant Shares so that the
direct assignee of the original holder is added as a selling
stockholder thereunder.
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9.
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Loss, Theft,
Destruction or Mutilation of Warrant; Exchange
. The Company represents warrants
and covenants that (a) upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or
mutilation of any Warrant or stock certificate representing the
Warrant Shares, and in case of loss, theft or destruction, of
indemnity reasonably satisfactory to it, and (b) upon surrender and
cancellation of such Warrant or stock certificate, if mutilated,
the Company will make
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