Unassociated Document


    Exhibit
      10.1

     

    CONSENT
      AND WAIVER

     

    THIS
      CONSENT AND WAIVER AGREEMENT (this “Agreement”),
      dated
      as
      of August 12, 2008 is entered into by and among Adrenalina, a Nevada corporation
      (the “Company”),
      and
      the persons identified as “Holders” on the signature pages hereto (the
“Holders”).
      Defined terms not otherwise defined herein shall have the meanings set forth
      in
      both of the Purchase Agreements (as defined below).

     

    WHEREAS,
      pursuant
      to Securities Purchase Agreements, dated November 29, 2007 and February 28,
      2008, (each, a “Purchase
      Agreement”,
      and
      collectively, the “Purchase
      Agreements”),
      among
      the Company and the Holders, the Holders purchased from the Company 5% Senior
      Secured Convertible Debentures (the “Debentures”)
      and
      Warrants (the “Warrants”)
      to
      purchase shares of Common Stock.; and

     

    WHEREAS,
      the
      parties desire to waive and amend certain provisions under the Transaction
      Documents (as defined in both of the Purchase Agreements).

     

    NOW
      THEREFORE,
      for
      good and valuable consideration, the receipt and sufficiency of which is hereby
      acknowledged, each Holder hereby agrees as follows:

     

    1. Subject
      to the terms and conditions hereunder, each Holder hereby waives the Event
      of
      Default under the Debentures due to the Company’s failure to have the Initial
      Registration Statement(s) (as defined in the Registration Rights Agreements)
      declared effective within 180 days of the Closing Date and (ii) the Company’s
      failure to timely pay liquidated damages (and late fees thereon) pursuant to
      Section 2(b) of the Registration Rights Agreements.

    


    2. Subject
      to the terms and conditions hereof, in lieu of the cash payment of accrued
      but
      unpaid liquidated damages plus any late fees thereon under Section 2(b) of
      the
      Registration Rights Agreements, in full satisfaction of such liquidated damages
      and late fees, each Holder agrees to accept, and the Company agrees to pay,
      on
      or prior to the date hereof, the consideration set forth on Schedule
      A
      hereto.

    


    3. As
      a
      result of the changes made to Rule 144 promulgated under the Securities Act
      of
      1933, as amended (the “Securities
      Act”)
      which
      are effective February 15, 2008, other than as to a number of shares of Common
      Stock issuable upon conversion of the Debentures, in the aggregate, and pro-rata
      among all of the Holders, equal to one-third of the number of issued and
      outstanding shares of Common Stock that are held by non-affiliates of the
      Company on the day immediately prior to the date the Company files its next
      amendment to the Registration Statement, the Company's obligations, pursuant
      to
      the Registration Rights Agreements (as defined in the Purchase Agreements),
      to
      register the shares of Common Stock issuable upon conversion and/or exercise
      of
      the Debentures and Warrants, including shares of Common Stock issued in lieu
      of
      accrued and unpaid interest thereon (collectively, the “144
      Eligible Securities”),
      are
      hereby suspended, so long as the
      Company is in compliance with the current public information requirement under
      Rule 144 and the
      Holder may sell the 144 Eligible Securities without any restriction or
      limitation under Rule 144 as of any date after October 26, 2008. Notwithstanding
      anything in the Transaction Documents to the contrary, in connection with the
      foregoing, the Company hereby covenants and agrees that at any time during
      the
      period commencing
      on the date hereof and ending at such time that all of the Underlying Shares
      can
      be sold without the requirement that adequate public information with respect
      to
      the Company be available as set forth in Rule 144(c)(1) and otherwise without
      restriction or limitation pursuant to Rule 144, if the Company shall fail for
      any reason to satisfy the current public information requirement under Rule
      144(c)(1) (any such failure being referred to as a “Public
      Information Failure”
and
      the
      Business Day immediately following the date the applicable report giving rise
      to
      the Public Information Failure was due to be filed being referred to as the
      “Public
      Information Failure Date”),
      then,
      as partial relief for the damages to the Holder by reason of any such delay
      in
      or reduction of its ability to sell the Underlying Shares (which remedy shall
      not be exclusive of any other remedies available at law or in equity), the
      Company shall pay to each such holder an amount in cash equal to two percent
      (2.0%) of the aggregate purchase price paid by such holder under each of the
      Purchase Agreement for any Securities then held by such holder on the Public
      Information Failure Date and on every thirtieth day (pro rated for periods
      totaling less than thirty days) thereafter until the earlier of (y) the date
      such Public Information Failure is cured and (z) such date that the public
      information requirement set forth in Rule 144(c)(1) is no longer required
      pursuant to Rule 144. The foregoing payments to which a holder shall be entitled
      are referred to herein as “Public
      Information Failure Payments.”
Public
      Information Failure Payments shall be paid on the earlier of (I) the last day
      of
      the calendar month during which such Public Information Failure Payments are
      incurred and (II) the third Business Day after the event or failure giving
      rise
      to the Public Information Failure Payments is cured. In the event the Company
      fails to make Public Information Failure Payments in a timely manner, such
      Public Information Failure Payments shall bear interest at the rate of 1.5%
      per
      month (prorated for partial months) until paid in full.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    4. The
      Company hereby agrees to cause its legal counsel to issue a legal opinion to
      the
      undersigned Holders and the Company’s Transfer Agent (a “144
      Opinion”)
      that
      the 144 Eligible Securities may be sold pursuant to Rule 144 without volume
      restrictions or manner of sale limitations as of October 26, 2008 and that
      certificates representing the 144 Eligible Securities issuable upon conversion
      of the Debentures, in lieu of cash payments of interest under the Debentures
      or
      a “cashless exercise” of the Warrants may be issued without a restrictive legend
      as required pursuant to Section 4.1 of the Purchase Agreement. Further, after
      October 26, 2008, the Company agrees to cause its legal counsel to keep a
      current 144 Opinion on file with the Holders and the Company’s Transfer Agent at
      all times while the Holders own Securities other than during a Public
      Information Failure.

     

    5. Except
      as
      expressly set forth above, all of the terms and conditions of the Transaction
      Documents shall continue in full force and effect after the execution of this
      Consent and Waiver and shall not be in any way changed, modified or superseded
      by the terms set forth herein. Within four Trading Days of the date hereof,
      the
      Company shall issue a Current Report on Form 8-K, attaching this agreement.
      The
      waivers and amendments set forth herein shall not be effective unless and until
      the Company and all Holders shall have agreed to the terms and conditions
      hereunder and executed and delivered their signature page hereto. In addition,
      the respective obligations, amendments, agreements and waivers of the Holders
      hereunder are subject to the following conditions being met: (a) the accuracy
      in
      all material respects of the representations and warranties of the Company
      contained herein and (b) the performance by the Company of all if its
      obligations, covenants and agreements required to be performed
      hereunder.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    6. This
      Agreement may be executed in two or more counterparts and by facsimile signature
      or otherwise, and each of such counterparts shall be deemed an original and
      all
      of such counterparts together shall constitute one and the same
      agreement.

     

    7. The
      Company has elected to provide all Holders with the same terms and form of
      consent and waiver for the convenience of the Company and not because it was
      required or requested to do so by the Holders. The obligations of each Holder
      under this consent and waiver, and any Transaction Document are several and
      not
      joint with the obligations of any other Holder, and no Holder shall be
      responsible in any way for the performance or non-performance of the obligations
      of any other Holder under this consent and waiver or any Transaction Document.
      Nothing contained herein or in any Transaction Document, and no action taken
      by
      any Holder pursuant thereto, shall be deemed to constitute the Holders as a
      partnership, an association, a joint venture or any other kind of entity, or
      create a presumption that the Holders are in any way acting in concert or as
      a
      group with respect to such obligations or the transactions contemplated by
      this
      consent and waiver or the Transaction Documents. Each Holder shall be entitled
      to independently protect and enforce its rights, including without limitation,
      the rights arising out of this consent and waiver or out of the other
      Transaction Documents, and it shall not be necessary for any other Holder to
      be
      joined as an additional party in any proceeding for such purpose. Each Holder
      has been represented by its own separate legal counsel in their review and
      negotiation of this consent and waiver and the Transaction Documents.


     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    IN
      WITNESS WHEREOF, this Consent and Waiver is executed as of the date first set
      forth above.

     

    
      	
            	 	 
	 	ADRENALINA
	 
 	 
 	 
 
	 	By:  	/s/ Jeffrey
              Geller
	 	
              
Jeffrey
              Geller
	 	
              President
                and COO

            


    

     

    [signature
      page(s) of Holders to follow]

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    COUNTERPART
      SIGNATURE PAGE

    OF
      HOLDER
      TO AENA CONSENT AND WAIVER

    


    
      	
            	 	 
	 	Name
              of
              Holder:_Enable Capital Mangement
	 
 	 
 	 
 
	 	By:  	/s/ Adam
              Epstein 
	 	
              

            
	 	Principal




    
      
         

      

      
         

        
          

        

      

      
         

      

    

    SCHEDULE
      A

    PAYMENT
      OF LIQUIDATED DAMAGES

    


    
      	
              Name     

            	 	
              Accrued
                but unpaid liquidated damages

            	 	
              Shares
                to be issued

            	 
	
               

              Enable
                Growth Partners, LP 

            	 	
              $

            	
              243,000

            	 	 	
              133,429

            	 
	
               

              Enable
                Opportunity Partners, LP

            	 	
              $

            	
              27,000

            	 	 	
              14,825