Agreement and Promissory Note
This agreement and promissory note dated June 4th, 2004 between Orbit Brands
Corporation ("orbit" or the "company") and Xxxxxxx & Xxxxxxx, LLC ("S & P" the
"parties") (the "agreement")
WHEREAS, orbit and S & P entered into a certain security agreement and promissory
notes dated February __, 2004 (the "note") and escrow agreement (the "escrow
agreement") dated _______, 2004; and WHEREAS, S & P has funded $125,000 of the
$250,000 due on the note (the "investment")
WHEREAS, S & P is unable to fund the remaining balance due under the note; and
WHEREAS, the parties are desirous of entering into a new agreement with respect
to the $125,000 received by the company. Now, therefore, the parties agree as
follows:
1. Recession of the escrow agreement The parties hereby recind, and make
null, void, and by that effect, any previous agreements or intended
agreements related to terms and conditions of the escrow agreement
which was the basis of the original relationship
2. Return of Collateral Orbit and S & P shall properly instruct the
escrow agent to immediately deliver ____________ shares of company
stock used to collateralized the note to the company c/o it's general
counsel, Xxxx Xxxx, Esq. 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000
3. New Agreement and Promissory Note In consideration of the investment
from S & P, the company upon written notice from S & P shall, at the
option of S & P, pay either: (A) cash in an amount equal to the five
(5) day trailing average of the company's common stock proceeding said
notice from S & P multiplied by 5,500,000; or (B) the right to convert
the investment into an amount of restricted common stock equal to 150
percent of the cash election.
4. Registration Rights S & P shall rescind registration rights in the
form attached here to as Exhibit A, in the event it elects option 3
(B) above.
5. Additional Consideration Irrespective of S & P's chosen option of 3
(A) or 3 (B) above, the company shall also pay S & P a loan management
fee of thirty-five percent (35%) of the investment, computed on an
annual basis (the "fee"). The fee shall in no way be deemed interest,
and the parties hereby agreed to waive any and all claims of usury
pursuant to state or federal law.
6. Miscellaneous The parties agree that this agreement and the
transactions contemplated thereby shall at all times remain unsecured.
7. Governing Law This agreement shall in all respects be governed by the
laws of the state of California.
1
Orbit Brands Corporation
By: ____________________________________________
Print Name: _____________________________________
Title: President and CEO
Date:________________
Xxxxxxx and Xxxxxxx, LLC
By: ____________________________________________
Print Name: _____________________________________
Title: ___________________________________________
Date:________________
