Wednesday, December 02, 2015 4:49:31 PM
Current Report Filing (8-k)
Source: Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): September 22, 2015
Be Active Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware
000-55185
68-0678429
(State or other jurisdiction of incorporation)
(Commission File Number)
(I.R.S. Employer Identification No.)
1010 Northern Blvd., Great Neck, NY
11021
(Address of principal executive offices)
(Zip Code)
(212) 736-2310
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
| | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
| | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
| | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Section 1 – Registrant’s Business and Operations
Item 1.01 Entry into a Material Definitive Agreement.
On September 22, 2015, Be Active Holdings, Inc. (the “Company”) closed on a $250,000 financing in accordance with the terms of a Consent, Waiver and Modification Agreement. Pursuant to said agreement, the Company issued five allonges to the previous secured convertible promissory notes issued by the Company in December 2014 (see the Current Report on Form 8-K dated December 31, 2014 and filed with the Securities and Exchange Commission on January 7, 2014). The maturity date of the allonges is September 30, 2016 and the conversion rate of the notes was decreased to $.001.
In connection with the financing, the Company agreed to increase the conversion rate of the outstanding Series C Preferred Stock from one share to five shares of common stock and to effectuate a reverse stock split prior to November 20, 2015. If the appropriate filings are not made by such time to take such actions, Alpha Capital Anstalt has the right to declare such failure an event of default pursuant to its secured convertible promissory note and to also require the Company to purchase its Series C Preferred Stock.
Palladium Capital Advisors LLC was issued an allonge in the amount of $25,000 as placement agent for the financing.
For all the terms and conditions of the Consent, Waiver and Modification Agreement and the allonges described above, reference is hereby made to such Agreement and Note annexed hereto as Exhibit 10.13 and Exhibit 10.14, respectively. All statements made herein concerning the foregoing Agreement and allonges are qualified by reference to said Exhibits.
Section 2 - Financial Information
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure set forth above under Item 1.01 (Entry into a Material Definitive Agreement) above is incorporated by reference into this Item 2.03.
Section 3 - Securities and Trading Markets
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth above under Item 1.01 (Entry into a Material Definitive Agreement) above is incorporated by reference into this Item 3.02. The allonges described in Item 1.01 above was issued in reliance upon exemptions from registration pursuant to Section 4(2) under the Securities Act of 1933, as amended, and Rule 506 promulgated thereunder. The allonges executed in connection therewith contains representations to support the Company's reasonable belief that each of the investors had access to information concerning the operations and financial condition of the Company, is acquiring the securities for its own account and not with a view to the distribution thereof, and is an "accredited investor" as such term is defined in Rule 501 (a) of Regulation D promulgated under the Securities Act. At the time of their issuance, the allonges and any shares of common stock issued upon conversion thereof above will be deemed to be restricted securities for purposes of the Securities Act and the certificates representing the securities shall bear legends to that effect.
Section 9 – Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
10.13
Consent, Waiver and Modification Agreement, dated September 21, 2015, between the Company and each of the signatories thereto.
10.14
Allonge No. 1 to Secured Note issued December 31, 2015.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
BE ACTIVE HOLDINGS, INC.
Dated: September 24, 2015
By:
/s/ Joseph Rienzi
Name:
Joseph Rienzi
Title:
Interim President
Exhibit 10.13
CONSENT, WAIVER AND MODIFICATION AGREEMENT
This Consent, Waiver and Modification Agreement (“Agreement”) is made and entered into as of September 21, 2015, by and among Be Active Holdings Inc., a Delaware corporation (the “Company”), and the parties identified on the signature page hereto (each a “Purchaser” and collectively, “Purchasers”). Capitalized terms used but not defined herein will have the meanings assigned to them in each of the February 2014 Securities Purchase Agreements, December 2014 Securities Purchase Agreements, February 2014 Transaction Documents and December 2014 Transaction Documents (all as defined below).
WHEREAS, the Company and Purchasers identified on Schedule A entered into Securities Purchase Agreements (the “February 2014 Securities Purchase Agreements”) and related Transaction Documents with respect to the Securities identified on Schedule A (“February 2014 Transaction Documents”) as of February 18, 2014; and
WHEREAS, pursuant to the terms of the February 2014 Securities Purchase Agreements, the Company issued to the Purchasers Common Stock, Series C Preferred Stock (“Preferred Stock”) and Warrants (the “Warrants”); and
WHEREAS, the Company and Purchasers identified on Schedule B entered into Securities Purchase Agreements (the “December 2014 Securities Purchase Agreements”) and related Transaction Documents with respect to the Securities identified on Schedule B (“December 2014 Transaction Documents”) as of December 31, 2014; and
WHEREAS, pursuant to the terms of the December 2014 Securities Purchase Agreements, the Company issued to the Purchasers Secured Convertible Notes (“December 2014 Notes”); and
WHEREAS, the Company is contemplating an additional offering of an aggregate $250,000 Purchase Price (“New Offering”) on substantially the same terms and conditions as the December 2014 Notes, as modified herein; and
WHEREAS, in connection with the New Offering, the Company intends to issue allonges to the December 2014 Notes increasing the principal amount of the Notes (“Allonges”) pursuant to the terms of the New Offering with such Allonges having a Maturity Date of September 30, 2016 and a Conversion Price equal to $0.001 per Share (subject to further reduction); and
WHEREAS, in connection with the New Offering, the Company has agreed to issue to the Placement Agent, Palladium Capital Advisors LLC, a fee equal to $25,000 in the form of a Secured Convertible Promissory Note identical to the form of the December 2014 Note and Allonge issued and to be issued to the Purchasers in the New Offering; and
WHEREAS, in connection with the New Offering, each Purchaser possesses a right of participation (“Right of Participation”) and certain rights (“MFN Rights”) pursuant to Sections 4.12 and 4.15 respectively of each of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements; and
WHEREAS, pursuant to Section 4.14 of the December 2014 Securities Purchase Agreements, upon a Share Dilutive Issuance, the Purchasers are entitled to a Share Dilution Adjustment; and
WHEREAS, pursuant to Section 4.20 of each of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements, the Company is prohibited, without the prior approval of Purchasers, from entering into any Variable Rate Transactions nor issuing any Variable Price Linked Equity Securities and certain other restrictions described in the last sentence of Section 4.20; and
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WHEREAS, solely in connection with the New Offering, Purchasers will (i) waive the Right of Participation, (ii) waive their MFN Rights, (iii) release the Company from the restrictions described in the tenth recital above, and (iv) consent to the issuance of the Allonges by the Company in connection with the New Offering; and
WHEREAS, pursuant to Section 5.5 of each of the February 2014 Securities Purchase Agreement and December 2014 Securities Purchase Agreement, a Majority in Interest may consent to a modification of any provision of the respective Securities Purchase Agreements on behalf of the Purchasers.
NOW THEREFORE, in consideration of promises and mutual covenants contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby consent and agree as follows:
1. Upon the execution of this Agreement by a Majority in Interest, the Purchasers waive (i) the Right of Participation and their MFN Rights; and (ii) release the Company from the restrictions described in the tenth recital above.
2. Pursuant to Section 4.14 of the December 2014 Securities Purchase Agreement from and after the closing of the New Offering, the Company hereby agrees and acknowledges that, effective immediately, the Conversion Price of the December 2014 Notes issued to the Purchasers pursuant to the December 2014 Securities Purchase Agreements is $0.001, subject to further reduction as described in the December 2014 Transaction Documents.
3. The Company acknowledges that prior to the closing date of the New Offering, the Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock will have been amended so that upon conversion of each Series C Preferred Share, five (5) shares of Common Stock will be issued. A copy of the filed amendment will be delivered to all holders of Series C Preferred Shares on or before the closing of the New Offering.
4. On or before fifty (50) days following the closing of the New Offering, the Company undertakes to effectuate a reverse split in the ratio of a range of one new Share of Common Stock for each outstanding two Shares of Common Stock up to one new share of Common Stock for each outstanding one thousand Shares of Common Stock, and to reserve on behalf of the Purchasers within one business day after the effectuation of the reverse split the amount of Common Stock necessary for the Company to comply with all reservation obligations owed to Purchasers. Shares issuable upon conversion of the principal represented by the Allonge and interest thereon are included in the definition of “Required Minimum” as defined in the December 2014 Transaction Documents. Failure to timely effectuate the reverse split or reserve such shares is an Event of Default under the December 2014 Notes. The company will not increase the par value of the Common Stock in connection with the reverse split.
5. Each of the Purchasers hereby represents the truth and accuracy of each Purchaser’s representations and warranties contained in the December 2014 Transaction Documents when made and also as if such representations and warranties were made as of the date hereof, except with respect to Section 3.2(j) of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements in connection with which trading might have been done in reliance on Section 4.2(i) of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements. The Company hereby represents the truth and accuracy of all of the Company’s representations and warranties contained in the December 2014 Transaction Documents when made and also as if such representations and warranties were made as of the date hereof, except as same have been modified or updated in Schedule C or in the SEC Reports.
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6. Annexed hereto as Schedule C are the following schedules corresponding to the schedules designations in the December 2014 Securities Purchase Agreements. Schedules which have not changed from those delivered in connection with the December 2014 Securities Purchase Agreements are marked “NO CHANGE”. Schedules which have been updated are provided as of the date of this Agreement and the closing date of the New Offering unless otherwise indicated thereon.
· Schedule 1.1. Exempt Issuances
· Schedule 3.1(a). Subsidiaries
· Schedule 3.1(e) Filings, Consents and Approvals
· Schedule 3.1(g). Capital Structure
· Schedule 3.1(h) Form 8-K; Financial Statements
· Schedule 3.1(i): Material Changes; Undisclosed Events, Liabilities or Developments
· Schedule 3.1(j): Litigation
· Schedule 3.1(n): Title to Assets
· Schedule 3.1(o). Intellectual Property
· Schedule 3.1(s): Certain Fees:
· Schedule 3.1(v). Registration Right
· Schedule 3.1(aa). Solvency
· Schedule 3.1(ee). Accountants
· Schedule 3.1(jj). Stock Option Plans
· Schedule 3.1(ll). Reporting Company/Shell Company
· Schedule 3.1(oo). Related Party Transactions
· Schedule 4.6. Use of Proceeds
7. The Purchasers’ right to participate in a Subsequent Financing as set forth in Section 4.12 of the December 2014 Securities Purchase Agreements is hereby extended until September 30, 2017.
8. The Protection Period as employed in each of the February 2014 Securities Purchase Agreement and the December 2014 Securities Purchase Agreements is hereby extended until September 30, 2018.
9. The restriction described in the last sentence of Section 4.20 in each of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements is extended until September 30, 2016.
10. The principal amount represented by the Allonges will accrue interest at an annual rate of 10% until the reservation described in Section 4 above has been effectuated and the Required Minimum has been reserved and will be payable and subject to the terms and conditions applicable to interest under the December 2014 Notes.
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11. Shares issuable upon the conversion of the principal amount of Allonges and interest therein are included in the definition of “Securities” as defined in the December 2014 Transaction Documents.
12. The Company hereby permanently waives the redemption and mandatory conversion provisions contained in Section 6 of the December 2014 Notes.
13. This Agreement and the New Offering Escrow Agreement shall be included in the definition of each of the February 2014 Transaction Documents and December 2014 Transaction Documents.
14. The undersigned consent to the Company completing the New Offering and to the amendment of the Security Agreement and Guaranty to include the New Offering as a component of the Obligations to be secured by the Collateral pursuant to the Security Agreement entered into in connection with the December 2014 Transaction Documents. In connection therewith, the Company and Purchasers authorize the Collateral Agent to make such additional filings at the discretion of the Collateral Agent to memorialize such agreement.
15. Annexed hereto is Amended Schedule A to the Security Agreement and the Guaranty.
16. If the closing of the New Offering has not occurred by September 30, 2015, this Agreement will be null and void.
17. Each of the Purchasers executing this Agreement represents to the Company that it has the authority to enter into and deliver this Agreement.
18. The Company represents to the Purchasers that the books and records of the Company accurately reflect the information described on Schedules A and B.
19. Except as specifically described herein, there is no other waiver expressed or implied.
20. In this Agreement words importing the singular number include the plural and vice versa; words importing the masculine gender include the feminine and neutral genders. The word “person” includes an individual, body corporate, partnership, trustee or trust or unincorporated association executor, administrator or legal representative.
21. This Agreement will be subject to amendment and/or waiver in the same manner and subject to the same requirements as described in the February 2014 Transaction Documents and December 2014 Transaction Documents.
22. The closing of the New Offering will be subject to the procedures set forth in a New Offering Escrow Agreement to be entered into by the Company, each of the Purchasers and the Escrow Agent identified therein.
23. The invalidity or unenforceability of any provision hereof will in no way affect the validity or enforceability of any other provision.
24. All notices, demands, requests, consents, approvals, and other communications required or permitted in connection with this Agreement shall be made and given in the same manner set forth in Section 5.4 of each of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements.
25. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws and principles that would result in the application of the substantive laws of another jurisdiction. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New York in the federal courts located in the state of New York. Both parties and the individuals executing this Agreement and other agreements on behalf of the parties agree to submit to the jurisdiction of such courts and waive trial by jury. The prevailing party (which shall be the party which receives an award most closely resembling the remedy or action sought) 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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26. The division of this Agreement into articles, sections, subsections and paragraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this agreement.
27. This Agreement may be executed in counterparts, all of which when taken together shall be considered one and the same Agreement and shall become effective when the counterparts have been signed by each party and delivered to the other party, it is being understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile or PDF transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were an original thereof.
(Signatures to follow)
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IN WITNESS WHEREOF, the Company, Guarantor, Collateral Agent and the undersigned Purchasers have caused this Agreement to be executed as of the date first written above.
BE ACTIVE HOLDINGS INC.
the “Company”
By /s/ Sam Pugliese
BE ACTIVE BRANDS INC.
the “Guarantor”
By: /s/ Sam Pugliese
COLLATERAL AGENT
/s/ John S. Lemak
JOHN S. LEMAK
[Purchasers’ Signature Pages to Follow]
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PURCHASERS’ SIGNATURE PAGE TO CONSENT WAIVER & MODIFICATION AGREEMENT
“PURCHASER”
HS CONTRARIAN INVESTMENTS LLC
By: /s/ John Stetson
Name: John Stetson
Title: Managing Member
MICHAEL BRAUSER
________________________________________
ALPHA CAPITAL ANSTALT
By: /s/ Konrad Ackermann
Name: Konrad Ackermann
Title: Director
THE JOHN ST. THOMAS AND BARBARA ST.
THOMAS REV. 2005 TRUST DTD 9/9/2005 JOHN
ST. THOMAS & BARBARA ST. THOMAS TTEES
By: /s/ John Stetson
Name: John Stetson
Title: Trustee
STRATCON PARTNERS
By: ____________________________________
Name:
TItle:
SANDOR CAPITAL MASTER FUND
By: /s/ John S. Lemak
Name: John S. Lemak
Title: Manager
GRQ CONSULTATS INC. 401K
By: /s/ Barry Honig
Name: Barry Honig
Title: Trustee
BIRCHTREE CAPITAL LLC
By: ___________________________________
Name:
Title
MOMONA CAPITAL
By: ___________________________________
Name:
Title
BRIO CAPITAL MASTER FUND LTD.
By: /s/ Shaye Hirsch
Name: Shaye Hirsch
Title: Director
BST COLD LLC
By: ____________________________________
Name:
Title:
POINT CAPITAL INC.
By: ____________________________________
Name:
Title:
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PURCHASERS’ SIGNATURE PAGE TO CONSENT WAIVER & MODIFICATION AGREEMENT
“PURCHASER”
JILL STRAUSS
________________________________________
DENVILLE AND DOVER FUND LLC
By: ____________________________________
Name:
Title:
JSL KIDS PARTNERS
By: /s/ John S. Lemak
Name: John S. Lemak
Title: Manager
CRAIG GOODSTADT
________________________________________
MELECHDAVID INC. RETIREMENT PLAN
By: ___________________________________
Name:
Title
BARRY HONIG
/s/ Barry Honig
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SCHEDULE A CONSENT WAIVER AND MODIFICATION AGREEMENT
FEBRUARY 2014 PURCHASERS
PURCHASERS
SUBSCRIPTION AMOUNT
HS CONTRARIAN INVESTMENTS LLC
347 N. New River Drive East, #804
Fort Lauderdale, FL 33301
$150,000.00
GRQ CONSULTANTS INC. 401K
555 S. Federal Highway, #450
Boca Raton, FL 33432
Fax: 561-235-5379
$150,000.00
MICHAEL BRAUSER
4400 Biscayne Blvd., #850
Miami, FL 33137
Fax: 305-576-9298
$150,000.00
BIRCHTREE CAPITAL LLC
4400 Biscayne Blvd., #850
Miami, FL 33137
Fax: 305-576-9298
$100,000.00
ALPHA CAPITAL ANSTALT
Pradafant 7
9490 Furstentums
Vaduz, Lichtenstein
Fax: 212-586-8244
$500,000.00
MOMONA CAPITAL
510 Madison Avenue
New York, NY 10022
Fax: 212-586-8244
$50,000.00
THE JOHN ST. THOMAS AND BARBARA ST. THOMAS REV. 2005 TRUST DTD 9/9/2005
JOHN ST. THOMAS & BARBARA ST. THOMAS TTEES
10315 Cresta Drive
Los Angeles, CA 90064
Tel.: 310-858-4825
$20,000.00
BRIO CAPITAL MASTER FUND LTD.
100 Merrick Road, Suite 401W
Rockville Center, NY 11570
Tel.: 516-536-0500
$200,000.00
STRATCON PARTNERS
155 West 68th Street, #27E
New York, NY 10023
Tel.: 658-7878
$25,000.00
BST COLD LLC
1601 Sunset Plaza Drive
Los Angeles, CA 90069
Fax: 310-855-9475
$50,000.00
SANDOR CAPITAL MASTER FUND
2828 Routh Street, Suite 500
Dallas, TX 75201
Tel.: 214-849-9876
$99,999.99
POINT CAPITAL INC.
285 Grand Avenue
Building 5, 2nd Floor
Englewood, NJ 07631
Tel.: 201-408-5126
$100,000.00
JILL STRAUSS
224 Quadro Vecchio Drive
Pacific Palisades, CA 90272
Fax: 310-855-9475
$25,000.00
CRAIG GOODSTADT
112 Chopin Drive
Wayne, NJ 07470
Tel.: 201-390-0994
$15,000.00
DENVILLE AND DOVER FUND LLC
4 South Orange Avenue, Unit 170
South Orange, NJ 07079
$115,000.00
MELECHDAVID, INC. RETIREMENT PLAN
100 S. Pointe Drive, #1405
Miami Beach, FL 33130
Fax: 860-476-1582
$50,000.00
TOTAL
$1,799,999.99
* All share numbers disclosed herein are reflected as “pre-split” numbers.
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SCHEDULE B CONSENT WAIVER AND MODIFICATION AGREEMENT
DECEMBER 2014 PURCHASERS
PURCHASERS
SUBSCRIPTION AMOUNT
ALPHA CAPITAL ANSTALT
Lettstrasse 32
P.O. Box 1212
9490 Vaduz, Lichtenstein
Fax: 212-586-8244
Taxpayer ID# None
$75,000.00
BRIO CAPITAL MASTER FUND LTD.
100 Merrick Road, Suite 401W
Rockville Center, NY 11570
Tel.: 516-536-0500
Taxpayer ID# 98-1072321
$50,000.00
SANDOR CAPITAL MASTER FUND
2828 Routh Street, Suite 500
Dallas, TX 75201
Tel.: 214-849-9876
Taxpayer ID#: 27-0013809
$165,000.00
JSL KIDS PARTNERS
2828 Routh Street, Suite 500
Dallas, TX 75201
Tel.: 214-849-9876
Taxpayer ID#: 38-3784405
$35,000.00
BARRY HONIG
555 S. Federal Highway, Suite 450
Boca Raton, FL 33432
Taxpayer ID#: 118-66-6789
$100,000.00
TOTAL
$425,000.00
* All share numbers disclosed herein are reflected as “pre-split” numbers.
Exhibit 10.14
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Sandor Capital Master Fund (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $90,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Woflson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Alpha Capital Anstalt (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $85,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Wolfson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Barry Honig (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $30,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Wolfson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Brio Capital Master Fund(“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $35,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Wolfson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to JSL Kids Partners (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $10,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Wolfson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Palladium Capital Advisors LLC (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $25,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ Sam Pugliese
Sam Pugliese
President
Source: Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): September 22, 2015
Be Active Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware
000-55185
68-0678429
(State or other jurisdiction of incorporation)
(Commission File Number)
(I.R.S. Employer Identification No.)
1010 Northern Blvd., Great Neck, NY
11021
(Address of principal executive offices)
(Zip Code)
(212) 736-2310
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
| | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
| | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
| | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Section 1 – Registrant’s Business and Operations
Item 1.01 Entry into a Material Definitive Agreement.
On September 22, 2015, Be Active Holdings, Inc. (the “Company”) closed on a $250,000 financing in accordance with the terms of a Consent, Waiver and Modification Agreement. Pursuant to said agreement, the Company issued five allonges to the previous secured convertible promissory notes issued by the Company in December 2014 (see the Current Report on Form 8-K dated December 31, 2014 and filed with the Securities and Exchange Commission on January 7, 2014). The maturity date of the allonges is September 30, 2016 and the conversion rate of the notes was decreased to $.001.
In connection with the financing, the Company agreed to increase the conversion rate of the outstanding Series C Preferred Stock from one share to five shares of common stock and to effectuate a reverse stock split prior to November 20, 2015. If the appropriate filings are not made by such time to take such actions, Alpha Capital Anstalt has the right to declare such failure an event of default pursuant to its secured convertible promissory note and to also require the Company to purchase its Series C Preferred Stock.
Palladium Capital Advisors LLC was issued an allonge in the amount of $25,000 as placement agent for the financing.
For all the terms and conditions of the Consent, Waiver and Modification Agreement and the allonges described above, reference is hereby made to such Agreement and Note annexed hereto as Exhibit 10.13 and Exhibit 10.14, respectively. All statements made herein concerning the foregoing Agreement and allonges are qualified by reference to said Exhibits.
Section 2 - Financial Information
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure set forth above under Item 1.01 (Entry into a Material Definitive Agreement) above is incorporated by reference into this Item 2.03.
Section 3 - Securities and Trading Markets
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth above under Item 1.01 (Entry into a Material Definitive Agreement) above is incorporated by reference into this Item 3.02. The allonges described in Item 1.01 above was issued in reliance upon exemptions from registration pursuant to Section 4(2) under the Securities Act of 1933, as amended, and Rule 506 promulgated thereunder. The allonges executed in connection therewith contains representations to support the Company's reasonable belief that each of the investors had access to information concerning the operations and financial condition of the Company, is acquiring the securities for its own account and not with a view to the distribution thereof, and is an "accredited investor" as such term is defined in Rule 501 (a) of Regulation D promulgated under the Securities Act. At the time of their issuance, the allonges and any shares of common stock issued upon conversion thereof above will be deemed to be restricted securities for purposes of the Securities Act and the certificates representing the securities shall bear legends to that effect.
Section 9 – Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
10.13
Consent, Waiver and Modification Agreement, dated September 21, 2015, between the Company and each of the signatories thereto.
10.14
Allonge No. 1 to Secured Note issued December 31, 2015.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
BE ACTIVE HOLDINGS, INC.
Dated: September 24, 2015
By:
/s/ Joseph Rienzi
Name:
Joseph Rienzi
Title:
Interim President
Exhibit 10.13
CONSENT, WAIVER AND MODIFICATION AGREEMENT
This Consent, Waiver and Modification Agreement (“Agreement”) is made and entered into as of September 21, 2015, by and among Be Active Holdings Inc., a Delaware corporation (the “Company”), and the parties identified on the signature page hereto (each a “Purchaser” and collectively, “Purchasers”). Capitalized terms used but not defined herein will have the meanings assigned to them in each of the February 2014 Securities Purchase Agreements, December 2014 Securities Purchase Agreements, February 2014 Transaction Documents and December 2014 Transaction Documents (all as defined below).
WHEREAS, the Company and Purchasers identified on Schedule A entered into Securities Purchase Agreements (the “February 2014 Securities Purchase Agreements”) and related Transaction Documents with respect to the Securities identified on Schedule A (“February 2014 Transaction Documents”) as of February 18, 2014; and
WHEREAS, pursuant to the terms of the February 2014 Securities Purchase Agreements, the Company issued to the Purchasers Common Stock, Series C Preferred Stock (“Preferred Stock”) and Warrants (the “Warrants”); and
WHEREAS, the Company and Purchasers identified on Schedule B entered into Securities Purchase Agreements (the “December 2014 Securities Purchase Agreements”) and related Transaction Documents with respect to the Securities identified on Schedule B (“December 2014 Transaction Documents”) as of December 31, 2014; and
WHEREAS, pursuant to the terms of the December 2014 Securities Purchase Agreements, the Company issued to the Purchasers Secured Convertible Notes (“December 2014 Notes”); and
WHEREAS, the Company is contemplating an additional offering of an aggregate $250,000 Purchase Price (“New Offering”) on substantially the same terms and conditions as the December 2014 Notes, as modified herein; and
WHEREAS, in connection with the New Offering, the Company intends to issue allonges to the December 2014 Notes increasing the principal amount of the Notes (“Allonges”) pursuant to the terms of the New Offering with such Allonges having a Maturity Date of September 30, 2016 and a Conversion Price equal to $0.001 per Share (subject to further reduction); and
WHEREAS, in connection with the New Offering, the Company has agreed to issue to the Placement Agent, Palladium Capital Advisors LLC, a fee equal to $25,000 in the form of a Secured Convertible Promissory Note identical to the form of the December 2014 Note and Allonge issued and to be issued to the Purchasers in the New Offering; and
WHEREAS, in connection with the New Offering, each Purchaser possesses a right of participation (“Right of Participation”) and certain rights (“MFN Rights”) pursuant to Sections 4.12 and 4.15 respectively of each of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements; and
WHEREAS, pursuant to Section 4.14 of the December 2014 Securities Purchase Agreements, upon a Share Dilutive Issuance, the Purchasers are entitled to a Share Dilution Adjustment; and
WHEREAS, pursuant to Section 4.20 of each of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements, the Company is prohibited, without the prior approval of Purchasers, from entering into any Variable Rate Transactions nor issuing any Variable Price Linked Equity Securities and certain other restrictions described in the last sentence of Section 4.20; and
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WHEREAS, solely in connection with the New Offering, Purchasers will (i) waive the Right of Participation, (ii) waive their MFN Rights, (iii) release the Company from the restrictions described in the tenth recital above, and (iv) consent to the issuance of the Allonges by the Company in connection with the New Offering; and
WHEREAS, pursuant to Section 5.5 of each of the February 2014 Securities Purchase Agreement and December 2014 Securities Purchase Agreement, a Majority in Interest may consent to a modification of any provision of the respective Securities Purchase Agreements on behalf of the Purchasers.
NOW THEREFORE, in consideration of promises and mutual covenants contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby consent and agree as follows:
1. Upon the execution of this Agreement by a Majority in Interest, the Purchasers waive (i) the Right of Participation and their MFN Rights; and (ii) release the Company from the restrictions described in the tenth recital above.
2. Pursuant to Section 4.14 of the December 2014 Securities Purchase Agreement from and after the closing of the New Offering, the Company hereby agrees and acknowledges that, effective immediately, the Conversion Price of the December 2014 Notes issued to the Purchasers pursuant to the December 2014 Securities Purchase Agreements is $0.001, subject to further reduction as described in the December 2014 Transaction Documents.
3. The Company acknowledges that prior to the closing date of the New Offering, the Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock will have been amended so that upon conversion of each Series C Preferred Share, five (5) shares of Common Stock will be issued. A copy of the filed amendment will be delivered to all holders of Series C Preferred Shares on or before the closing of the New Offering.
4. On or before fifty (50) days following the closing of the New Offering, the Company undertakes to effectuate a reverse split in the ratio of a range of one new Share of Common Stock for each outstanding two Shares of Common Stock up to one new share of Common Stock for each outstanding one thousand Shares of Common Stock, and to reserve on behalf of the Purchasers within one business day after the effectuation of the reverse split the amount of Common Stock necessary for the Company to comply with all reservation obligations owed to Purchasers. Shares issuable upon conversion of the principal represented by the Allonge and interest thereon are included in the definition of “Required Minimum” as defined in the December 2014 Transaction Documents. Failure to timely effectuate the reverse split or reserve such shares is an Event of Default under the December 2014 Notes. The company will not increase the par value of the Common Stock in connection with the reverse split.
5. Each of the Purchasers hereby represents the truth and accuracy of each Purchaser’s representations and warranties contained in the December 2014 Transaction Documents when made and also as if such representations and warranties were made as of the date hereof, except with respect to Section 3.2(j) of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements in connection with which trading might have been done in reliance on Section 4.2(i) of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements. The Company hereby represents the truth and accuracy of all of the Company’s representations and warranties contained in the December 2014 Transaction Documents when made and also as if such representations and warranties were made as of the date hereof, except as same have been modified or updated in Schedule C or in the SEC Reports.
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6. Annexed hereto as Schedule C are the following schedules corresponding to the schedules designations in the December 2014 Securities Purchase Agreements. Schedules which have not changed from those delivered in connection with the December 2014 Securities Purchase Agreements are marked “NO CHANGE”. Schedules which have been updated are provided as of the date of this Agreement and the closing date of the New Offering unless otherwise indicated thereon.
· Schedule 1.1. Exempt Issuances
· Schedule 3.1(a). Subsidiaries
· Schedule 3.1(e) Filings, Consents and Approvals
· Schedule 3.1(g). Capital Structure
· Schedule 3.1(h) Form 8-K; Financial Statements
· Schedule 3.1(i): Material Changes; Undisclosed Events, Liabilities or Developments
· Schedule 3.1(j): Litigation
· Schedule 3.1(n): Title to Assets
· Schedule 3.1(o). Intellectual Property
· Schedule 3.1(s): Certain Fees:
· Schedule 3.1(v). Registration Right
· Schedule 3.1(aa). Solvency
· Schedule 3.1(ee). Accountants
· Schedule 3.1(jj). Stock Option Plans
· Schedule 3.1(ll). Reporting Company/Shell Company
· Schedule 3.1(oo). Related Party Transactions
· Schedule 4.6. Use of Proceeds
7. The Purchasers’ right to participate in a Subsequent Financing as set forth in Section 4.12 of the December 2014 Securities Purchase Agreements is hereby extended until September 30, 2017.
8. The Protection Period as employed in each of the February 2014 Securities Purchase Agreement and the December 2014 Securities Purchase Agreements is hereby extended until September 30, 2018.
9. The restriction described in the last sentence of Section 4.20 in each of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements is extended until September 30, 2016.
10. The principal amount represented by the Allonges will accrue interest at an annual rate of 10% until the reservation described in Section 4 above has been effectuated and the Required Minimum has been reserved and will be payable and subject to the terms and conditions applicable to interest under the December 2014 Notes.
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11. Shares issuable upon the conversion of the principal amount of Allonges and interest therein are included in the definition of “Securities” as defined in the December 2014 Transaction Documents.
12. The Company hereby permanently waives the redemption and mandatory conversion provisions contained in Section 6 of the December 2014 Notes.
13. This Agreement and the New Offering Escrow Agreement shall be included in the definition of each of the February 2014 Transaction Documents and December 2014 Transaction Documents.
14. The undersigned consent to the Company completing the New Offering and to the amendment of the Security Agreement and Guaranty to include the New Offering as a component of the Obligations to be secured by the Collateral pursuant to the Security Agreement entered into in connection with the December 2014 Transaction Documents. In connection therewith, the Company and Purchasers authorize the Collateral Agent to make such additional filings at the discretion of the Collateral Agent to memorialize such agreement.
15. Annexed hereto is Amended Schedule A to the Security Agreement and the Guaranty.
16. If the closing of the New Offering has not occurred by September 30, 2015, this Agreement will be null and void.
17. Each of the Purchasers executing this Agreement represents to the Company that it has the authority to enter into and deliver this Agreement.
18. The Company represents to the Purchasers that the books and records of the Company accurately reflect the information described on Schedules A and B.
19. Except as specifically described herein, there is no other waiver expressed or implied.
20. In this Agreement words importing the singular number include the plural and vice versa; words importing the masculine gender include the feminine and neutral genders. The word “person” includes an individual, body corporate, partnership, trustee or trust or unincorporated association executor, administrator or legal representative.
21. This Agreement will be subject to amendment and/or waiver in the same manner and subject to the same requirements as described in the February 2014 Transaction Documents and December 2014 Transaction Documents.
22. The closing of the New Offering will be subject to the procedures set forth in a New Offering Escrow Agreement to be entered into by the Company, each of the Purchasers and the Escrow Agent identified therein.
23. The invalidity or unenforceability of any provision hereof will in no way affect the validity or enforceability of any other provision.
24. All notices, demands, requests, consents, approvals, and other communications required or permitted in connection with this Agreement shall be made and given in the same manner set forth in Section 5.4 of each of the February 2014 Securities Purchase Agreements and December 2014 Securities Purchase Agreements.
25. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws and principles that would result in the application of the substantive laws of another jurisdiction. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New York in the federal courts located in the state of New York. Both parties and the individuals executing this Agreement and other agreements on behalf of the parties agree to submit to the jurisdiction of such courts and waive trial by jury. The prevailing party (which shall be the party which receives an award most closely resembling the remedy or action sought) 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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26. The division of this Agreement into articles, sections, subsections and paragraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this agreement.
27. This Agreement may be executed in counterparts, all of which when taken together shall be considered one and the same Agreement and shall become effective when the counterparts have been signed by each party and delivered to the other party, it is being understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile or PDF transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were an original thereof.
(Signatures to follow)
5
IN WITNESS WHEREOF, the Company, Guarantor, Collateral Agent and the undersigned Purchasers have caused this Agreement to be executed as of the date first written above.
BE ACTIVE HOLDINGS INC.
the “Company”
By /s/ Sam Pugliese
BE ACTIVE BRANDS INC.
the “Guarantor”
By: /s/ Sam Pugliese
COLLATERAL AGENT
/s/ John S. Lemak
JOHN S. LEMAK
[Purchasers’ Signature Pages to Follow]
6
PURCHASERS’ SIGNATURE PAGE TO CONSENT WAIVER & MODIFICATION AGREEMENT
“PURCHASER”
HS CONTRARIAN INVESTMENTS LLC
By: /s/ John Stetson
Name: John Stetson
Title: Managing Member
MICHAEL BRAUSER
________________________________________
ALPHA CAPITAL ANSTALT
By: /s/ Konrad Ackermann
Name: Konrad Ackermann
Title: Director
THE JOHN ST. THOMAS AND BARBARA ST.
THOMAS REV. 2005 TRUST DTD 9/9/2005 JOHN
ST. THOMAS & BARBARA ST. THOMAS TTEES
By: /s/ John Stetson
Name: John Stetson
Title: Trustee
STRATCON PARTNERS
By: ____________________________________
Name:
TItle:
SANDOR CAPITAL MASTER FUND
By: /s/ John S. Lemak
Name: John S. Lemak
Title: Manager
GRQ CONSULTATS INC. 401K
By: /s/ Barry Honig
Name: Barry Honig
Title: Trustee
BIRCHTREE CAPITAL LLC
By: ___________________________________
Name:
Title
MOMONA CAPITAL
By: ___________________________________
Name:
Title
BRIO CAPITAL MASTER FUND LTD.
By: /s/ Shaye Hirsch
Name: Shaye Hirsch
Title: Director
BST COLD LLC
By: ____________________________________
Name:
Title:
POINT CAPITAL INC.
By: ____________________________________
Name:
Title:
7
PURCHASERS’ SIGNATURE PAGE TO CONSENT WAIVER & MODIFICATION AGREEMENT
“PURCHASER”
JILL STRAUSS
________________________________________
DENVILLE AND DOVER FUND LLC
By: ____________________________________
Name:
Title:
JSL KIDS PARTNERS
By: /s/ John S. Lemak
Name: John S. Lemak
Title: Manager
CRAIG GOODSTADT
________________________________________
MELECHDAVID INC. RETIREMENT PLAN
By: ___________________________________
Name:
Title
BARRY HONIG
/s/ Barry Honig
8
SCHEDULE A CONSENT WAIVER AND MODIFICATION AGREEMENT
FEBRUARY 2014 PURCHASERS
PURCHASERS
SUBSCRIPTION AMOUNT
HS CONTRARIAN INVESTMENTS LLC
347 N. New River Drive East, #804
Fort Lauderdale, FL 33301
$150,000.00
GRQ CONSULTANTS INC. 401K
555 S. Federal Highway, #450
Boca Raton, FL 33432
Fax: 561-235-5379
$150,000.00
MICHAEL BRAUSER
4400 Biscayne Blvd., #850
Miami, FL 33137
Fax: 305-576-9298
$150,000.00
BIRCHTREE CAPITAL LLC
4400 Biscayne Blvd., #850
Miami, FL 33137
Fax: 305-576-9298
$100,000.00
ALPHA CAPITAL ANSTALT
Pradafant 7
9490 Furstentums
Vaduz, Lichtenstein
Fax: 212-586-8244
$500,000.00
MOMONA CAPITAL
510 Madison Avenue
New York, NY 10022
Fax: 212-586-8244
$50,000.00
THE JOHN ST. THOMAS AND BARBARA ST. THOMAS REV. 2005 TRUST DTD 9/9/2005
JOHN ST. THOMAS & BARBARA ST. THOMAS TTEES
10315 Cresta Drive
Los Angeles, CA 90064
Tel.: 310-858-4825
$20,000.00
BRIO CAPITAL MASTER FUND LTD.
100 Merrick Road, Suite 401W
Rockville Center, NY 11570
Tel.: 516-536-0500
$200,000.00
STRATCON PARTNERS
155 West 68th Street, #27E
New York, NY 10023
Tel.: 658-7878
$25,000.00
BST COLD LLC
1601 Sunset Plaza Drive
Los Angeles, CA 90069
Fax: 310-855-9475
$50,000.00
SANDOR CAPITAL MASTER FUND
2828 Routh Street, Suite 500
Dallas, TX 75201
Tel.: 214-849-9876
$99,999.99
POINT CAPITAL INC.
285 Grand Avenue
Building 5, 2nd Floor
Englewood, NJ 07631
Tel.: 201-408-5126
$100,000.00
JILL STRAUSS
224 Quadro Vecchio Drive
Pacific Palisades, CA 90272
Fax: 310-855-9475
$25,000.00
CRAIG GOODSTADT
112 Chopin Drive
Wayne, NJ 07470
Tel.: 201-390-0994
$15,000.00
DENVILLE AND DOVER FUND LLC
4 South Orange Avenue, Unit 170
South Orange, NJ 07079
$115,000.00
MELECHDAVID, INC. RETIREMENT PLAN
100 S. Pointe Drive, #1405
Miami Beach, FL 33130
Fax: 860-476-1582
$50,000.00
TOTAL
$1,799,999.99
* All share numbers disclosed herein are reflected as “pre-split” numbers.
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SCHEDULE B CONSENT WAIVER AND MODIFICATION AGREEMENT
DECEMBER 2014 PURCHASERS
PURCHASERS
SUBSCRIPTION AMOUNT
ALPHA CAPITAL ANSTALT
Lettstrasse 32
P.O. Box 1212
9490 Vaduz, Lichtenstein
Fax: 212-586-8244
Taxpayer ID# None
$75,000.00
BRIO CAPITAL MASTER FUND LTD.
100 Merrick Road, Suite 401W
Rockville Center, NY 11570
Tel.: 516-536-0500
Taxpayer ID# 98-1072321
$50,000.00
SANDOR CAPITAL MASTER FUND
2828 Routh Street, Suite 500
Dallas, TX 75201
Tel.: 214-849-9876
Taxpayer ID#: 27-0013809
$165,000.00
JSL KIDS PARTNERS
2828 Routh Street, Suite 500
Dallas, TX 75201
Tel.: 214-849-9876
Taxpayer ID#: 38-3784405
$35,000.00
BARRY HONIG
555 S. Federal Highway, Suite 450
Boca Raton, FL 33432
Taxpayer ID#: 118-66-6789
$100,000.00
TOTAL
$425,000.00
* All share numbers disclosed herein are reflected as “pre-split” numbers.
Exhibit 10.14
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Sandor Capital Master Fund (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $90,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Woflson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Alpha Capital Anstalt (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $85,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Wolfson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Barry Honig (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $30,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Wolfson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Brio Capital Master Fund(“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $35,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Wolfson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to JSL Kids Partners (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $10,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ David J. Wolfson
David J. Wolfson
CFO
ALLONGE NO. 1 TO SECURED NOTE ISSUED DECEMBER 31, 2014
This Allonge No. 1 to Secured Note (“Allonge”) is made as of this 21st day of September, 2015, by Be Active Holdings, Inc., a Delaware corporation (“Borrower”) to Palladium Capital Advisors LLC (“Lender”). This Allonge is being issued pursuant to a Consent, Waiver and Modification Agreement dated on or about the date of this Allonge, the terms of which are incorporated herein by this reference. Reference is hereby made to that certain Secured Note issued by Borrower to Lender dated December 31, 2014 (“Note”). Capitalized terms used in this Allonge not otherwise defined herein shall have the meanings ascribed to such terms in the Note. Except as amended hereby, the terms of the Note remain as originally stated.
The principal amount as stated on the face of the Note shall be increased by $25,000 (“Allonge Principal”) over and above any amounts outstanding immediately prior to the date of this Allonge. This increase to the principal amount due and owing on the Note described herein notwithstanding, Lender does not waive interest that may have accrued at a default rate of interest and liquidated damages, if any, that may have accrued on the Note through the date of this Allonge, which default interest and liquidated damages, if any, remain outstanding and payable.
The Maturity Date with respect to all amounts outstanding immediately prior to the effectiveness of this Allonge shall remain unchanged as the Maturity Date set forth in the Note, subject to acceleration as set forth in the Note. The Maturity Date with respect to the Allonge Principal shall be September 30, 2016. Interest on the Allonge Principal will accrue at an annual rate of 10% until the Required Minimum has been reserved as described in Section 4 of the Consent, Waiver and Modification Agreement and will thereafter cease to accrue.
IN WITNESS WHEREOF, this Allonge is executed as of the date written above.
BE ACTIVE HOLDINGS, INC.
By: /s/ Sam Pugliese
Sam Pugliese
President
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