ex10-13.htm


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#: ###-##-####

	
$100,000.00


	
TOTAL

	
$425,000.00

















*  All share numbers disclosed herein are reflected as “pre-split” numbers.