UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


 
FORM 10-Q
 


 QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended May 31, 2017

or

 TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number: 333-161943

SPORT ENDURANCE, INC.
(Exact name of registrant as specified in its charter)

Nevada
26-2754069
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)

222  Broadway, 19th Floor, New York, NY  10038
(Address of principal executive offices) (Zip Code)

(646) 846-4280
(Registrant’s telephone number, including area code)

Not Applicable
(Former name, former address and former fiscal year, if changed since last report)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes     No

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Yes      No

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer,  a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act.

(Check One):
Large Accelerated filer 
Accelerated filer                   
Non-accelerated filer    
(Do not check if a smaller reporting company)
Smaller reporting company 
Emerging growth company 
 
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes      No
 
Indicate the number of shares outstanding of each of the issuer’s classes of common stock as of the latest practicable date: 78,226,969 shares of $0.001 par value common stock outstanding as of July 6, 2017.  


SPORT ENDURANCE, INC.

FORM 10-Q
Quarterly Period Ended May 31, 2017

TABLE OF CONTENTS

 
Page
 
 
 
 
 
PART I. FINANCIAL INFORMATION
 
Item 1.
4
 
4
 
5
 
6
 
7
Item 2.
16
Item 3.
19
Item 4.
19
 
 
 
PART II. OTHER INFORMATION
 
Item 1.
21
Item 1A.
21
Item 2.
21
Item 3.
21
Item 4.
21
Item 5.
21
Item 6.
22
 
 
 
23





EXPLANATORY NOTE

Unless otherwise noted, references in this registration statement to “Sport Endurance” the “Company,” “we,” “our” or “us” means Sport Endurance, Inc.

 
 

 
PART I – FINANCIAL INFORMATION

Item 1. Financial Statements.

SPORT ENDURANCE, INC.
BALANCE SHEETS
 
 
 
May 31,
   
August 31,
 
 
 
2017
   
2016
 
ASSETS
           
Current assets
           
 
           
Cash and cash equivalents
 
$
1,484
   
$
10,197
 
Accounts receivable
   
-
     
45
 
Inventory
   
14,985
     
6,398
 
Total current assets
   
16,469
     
16,640
 
Total Assets
   
16,469
     
16,640
 
 
               
LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT)
               
Current liabilities
               
Accounts payable and accrued liabilities
   
114,974
     
44,746
 
Derivative liability
   
284,547
     
254,952
 
Accrued officer salary
   
96,000
     
24,000
 
Notes payable and accrued interest - related party
   
204,893
     
-
 
Convertible notes, net of unamortized debt discounts of $85,212 and $172,735
   
442,706
     
267,265
 
Total current liabilities
   
1,143,120
     
590,963
 
 
               
Commitments and contingencies
   
-
     
-
 
 
               
Stockholders’ equity (deficit)
               
Preferred stock, $0.001 par value, 20,000,000 shares authorized, 1,000  shares issued and outstanding as of May 31, 2017 and August  31, 2016
   
1
     
1
 
Common stock, $0.001 par value, 580,000,000 shares authorized 78,018,636 shares issued and outstanding as of May 31, 2017 and 77,775,303 as of August 31, 2016
   
78,018
     
77,775
 
Additional paid-in capital
   
1,587,300
     
718,487
 
Subscription receivable
   
(5,372
)
   
(5,372
)
Accumulated deficit
   
(2,786,598
)
   
(1,365,214
)
Total stockholders’ equity (deficit)
   
(1,126,651
)
   
(574,323
)
 
               
Total liabilities and stockholders’ equity (deficit)
   
16,469
   
$
16,640
 
 
See accompanying notes to these financial statements.

SPORT ENDURANCE, INC.
STATEMENTS OF OPERATIONS
(UNAUDITED)
 
 
 
For the Three
   
For the Three
   
For the Nine
   
For the Nine
 
 
 
Months Ended
   
Months Ended
   
Months Ended
   
Months Ended
 
 
 
May 31,
   
May 31,
   
May 31,
   
May 31,
 
 
 
2017
   
2016
   
2017
   
2016
 
 
                       
Revenue
 
$
714
   
$
-
   
$
1,034
   
$
-
 
Cost of goods sold
   
138
     
-
     
231
     
-
 
 
                               
Net revenue
   
576
     
-
     
803
     
-
 
 
                               
Operating expenses:
                               
General and administrative
   
83,322
     
61,862
     
341,827
     
74,993
 
Professional fees
   
32,234
     
53,525
     
79,332
     
63,217
 
Impairment of assets
   
-
     
167,251
     
-
     
167,251
 
Depreciation
   
-
     
546
     
-
     
1,638
 
Total operating expenses
   
115,556
     
283,184
     
421,159
     
307,099
 
 
                               
Net Operating Loss
   
(114,980
)
   
(283,184
)
   
(420,356
)
   
(307,099
)
 
                               
Other income (expense):
                               
Interest expense
   
(274,693
)
   
(180,298
)
   
(658,758
)
   
(182,555
)
Change in fair value of derivative liability
   
(75,998
)
   
(1,001
)
   
(342,270
)
   
(1,001
)
Total other expense, net
   
(350,691
)
   
(181,299
)
   
(1,001,028
)
   
(183,556
)
 
                               
Loss before provision for income taxes
   
(465,671
)
   
(464,483
)
   
(1,421,384
)
   
(490,655
)
 
                               
Provision for income taxes
   
-
     
-
     
-
     
-
 
 
                               
Net loss
 
$
(465,671
)
 
$
(464,483
)
 
$
(1,421,384
)
 
$
(490,655
)
 
                               
Net loss per share - basic
 
$
(0.01
)
 
$
(0.01
)
 
$
(0.02
)
 
$
(0.01
)
 
                               
Net loss per share - diluted
 
$
(0.01
)
 
$
(0.001
)
 
$
(0.02
)
 
$
(0.01
)
 
                               
Weighted average shares outstanding - basic
   
77,875,973
     
77,618,781
     
77,816,280
     
68,008,151
 
 
                               
Weighted average shares outstanding - diluted
   
77,875,973
     
77,681,781
     
77,816,280
     
68,008,151
 
 
See accompanying notes to these financial statements.

SPORT ENDURANCE, INC.
STATEMENTS OF CASH FLOWS
(UNAUDITED)
 
 
 
For the Nine
   
For the Nine
 
 
 
Months Ended
   
Months Ended
 
 
 
May 31,
   
May 31,
 
 
 
2017
   
2016
 
CASH FLOWS FROM OPERATING ACTIVITIES
           
Net loss
 
$
(1,421,384
)
 
$
(490,655
)
Adjustments to reconcile net loss to net cash used in operating activities:
               
Depreciation
   
-
     
1,638
 
Impairment of assets
   
-
     
167,251
 
Inducement shares
   
-
     
112,841
 
Change in fair value of derivative liability
   
342,270
     
1,001
 
Amortization of discount on convertible debt
   
625,853
     
48,878
 
Amortization of discount on convertible interest
   
-
     
2,383
 
Penalty on debt extension
   
227,634
     
-
 
Imputed interest
   
-
     
670
 
Changes in assets and liabilities:
               
Accounts receivable
   
45
     
-
 
Inventory
   
(8,587
)
   
-
 
Accrued officer salary
   
72,000
     
-
 
Interest payable - related party
   
893
     
-
 
Accounts payable and accrued liabilities
   
73,563
     
38,881
 
Other payable
   
-
     
-
 
 
               
Net cash used in operating activities
   
(87,713
)
   
(117,112
)
 
               
CASH FLOWS FROM INVESTING ACTIVITIES
               
Payments to acquire assets
           
(250,000
)
                 
Net Cash used in investing activities
           
(250,000
)
                 
CASH FLOWS FROM FINANCING ACTIVITIES
               
Principal payments made on convertible notes
   
(125,000
)
   
-
 
Proceeds from sale of common stock
   
-
     
14,500
 
Proceeds from officer loans
   
204,000
     
12,626
 
Repayment of officer loans
           
(12,626
)
Proceeds from convertible debt
   
-
     
441,700
 
 
               
Net cash provided by financing activities
   
79,000
     
456,200
 
 
               
Net increase in cash and cash equivalents
   
(8,713
)
   
89,088
 
 
               
Cash and cash equivalents at beginning of period
   
10,197
     
-
 
 
               
Cash and cash equivalents at end of period
 
$
1,484
   
$
89,088
 
 
               
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
               
Interest paid
 
$
-
   
$
-
 
Income taxes paid
 
$
-
   
$
-
 
 
               
NON-CASH INVESTING AND FINANCING ACTIVITIES:
               
Discount on beneficial conversion feature
  $
-
   
$
-
 
Stock issued for conversion of debt
  $
25,000
   
$
40,244
 
Common stock issued for discount
  $ -    
$
247,159
 
Stock issued for subscription receivable
  $
-
   
$
5,372
 
Discount from derivative
 
$
454,731
    $
192,841
 
Stock issued for commitment fee
 
$
68,950
    $
-
 
Settlement of derivative
 
$
775,106
    $
-
 
Accrued interest  capitalized into principal of convertible notes
 
$
29,362
   
$
-
 
Discount on convertible accrued interest
  $ -    
$
4,083
 
 
See accompanying notes to these financial statements.


Sport Endurance, Inc.
Notes to Condensed Financial Statements
(Unaudited)

Note 1 – Nature of Business and Significant Accounting Policies

Nature of Business
 

Sport Endurance, Inc. (“the Company”) was incorporated in the S tate of Nevada on January 3, 2001 (“Inception”). The Company was dormant until it was revived in 2009 with a name change to, Sport Endurance, Inc. on August 6, 2009. The Company develops, markets, and distributes quality dietary supplements throughout the United States.

Basis of Presentation

The unaudited condensed financial statements have been prepared in accordance with United States generally accepted accounting principles and reflect all adjustments which, in the opinion of management, are necessary for a fair presentation. All such adjustments are of a normal recurring nature.

The Company has adopted a fiscal year end of August 31st.

Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, and the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Cash and Cash Equivalents

Cash and equivalents include investments with initial maturities of three months or less.  The Company maintains its cash balances at credit-worthy financial institutions that are insured by the Federal Deposit Insurance Corporation (“FDIC”) up to $250,000.  Deposits with these banks may exceed the amount of insurance provided on such deposits; however, these deposits typically may be redeemed upon demand and, therefore, bear minimal risk. The Company had cash and cash equivalents of $1,484 and $10,197 as of May 31, 2017 and August 31, 2016, respectively.

Inventory

Inventory consists of finished goods and is stated at the lower of cost or market by the first-in, first-out method.  The Company is currently marketing three products under the names “Ultra Peak T”, “Sports Leg and Lung Formula” and “Pain-Freeze Recovery Gel” which are included in inventory at May 31, 2017 and August 31, 2016. 

Intangible Assets

Intangible assets generally arise from business combinations accounted for under the purchase method.  The Company performs an annual review or more frequently if indicators of potential impairment exist, to determine if the recorded intangible assets are impaired.

Equipment

Equipment is recorded at the lower of cost or estimated net recoverable amount, and is depreciated using the straight-line method over the estimated useful lives of the related assets as follows:

Computer equipment
5 years
Furniture and fixtures
7 years

As of May 31, 2017 and August 31, 2016 the Company’s property and equipment had been fully depreciated. The Company recorded depreciation expense of $0 and $1,638  for the nine months ended May 31, 2017 and 2016, respectively.


Maintenance and repairs will be charged to expense as incurred. Significant renewals and betterments will be capitalized. At the time of retirement or other disposition of equipment, the cost and accumulated depreciation will be removed from the accounts and any resulting gain or loss will be reflected in operations.

The Company will assess the recoverability of equipment by determining whether the depreciation and amortization of these assets over their remaining life can be recovered through projected undiscounted future cash flows. The amount of equipment impairment, if any, will be measured based on fair value and is charged to operations in the period in which such impairment is determined by management.

Revenue Recognition

The Company recognizes revenue upon product delivery. All of our products are shipped through a third party fulfillment center to the customer and the customer takes title to product and assumes risk and ownership of the product when it is delivered. Shipping charges to customers and sales taxes collectible from customers, if any, are included in revenues.

For revenue from product sales, the Company recognizes revenue in accordance with Financial Accounting Standards Board “FASB” Accounting Standards Codification “ASC” 605-15-05. ASC 605-15-05 requires that four basic criteria must be met before revenue can be recognized: (1) persuasive evidence of an arrangement exists; (2) delivery has occurred; (3) the selling   price is fixed and determinable; and (4) collectability is reasonably assured.  Determination of criteria (3) and (4) are based on management’s judgments regarding the fixed nature of the selling prices of the products delivered and the collectability of those amounts.  Provisions for discounts and rebates to customers, estimated returns and allowances, and other adjustments are provided for in the same period the related sales are recorded.  The Company defers any revenue for which the product has not been delivered or is subject to refund until such time that the Company and the customer jointly determine that the product has been delivered or no refund will be required.

Income Taxes
 
The Company accounts for income taxes using the asset and liability method, which requires the establishment of deferred tax assets and liabilities for the temporary differences between the financial reporting basis and the tax basis of the Company’s assets and liabilities at enacted tax rates expected to be in effect when such amounts are realized or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.  A valuation allowance is provided to the extent deferred tax assets may not be recoverable after consideration of the future reversal of deferred tax liabilities, tax planning strategies, and projected future taxable income.

Fair Value of Financial Instruments

Under FASB ASC 820-10-05, the Financial Accounting Standards Board establishes a framework for measuring fair value in generally accepted accounting principles and expands disclosures about fair value measurements.  This Statement reaffirms that fair value is the relevant measurement attribute. The adoption of this standard did not have a material effect on the Company’s financial statements as reflected herein. The carrying amounts of cash and accrued expenses reported on the balance sheet are estimated by management to approximate fair value primarily due to the short term nature of the instruments.  The Company had no items that required fair value measurement on a recurring basis.

Fair Value Measurements

ASC 820 Fair Value Measurements defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles, and expands disclosure about fair value measurements.

The following provides an analysis of financial instruments that are measured subsequent to initial recognition at fair value, grouped into Levels 1 to 3 based on the degree to which fair value is observable:

Level 1- fair value measurements are those derived from quoted prices (unadjusted in active markets for identical assets or liabilities);

Level 2- fair value measurements are those derived from inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly (i.e. as prices) or indirectly (i.e. derived from prices); and

Level 3- fair value measurements are those derived from valuation techniques that include inputs for the asset or liability that are not based on observable market data (unobservable inputs).

Financial instruments classified as Level 1 - quoted prices in active markets include cash.

These condensed consolidated financial instruments are measured using management’s best estimate of fair value, where the inputs into the determination of fair value require significant management judgment to estimation. Valuations based on unobservable inputs are highly subjective and require significant judgments. Changes in such judgments could have a material impact on fair value estimates. In addition, since estimates are as of a specific point in time, they are susceptible to material near-term changes. Changes in economic conditions may also dramatically affect the estimated fair values.
 
Fair value estimates discussed herein are based upon certain market assumptions and pertinent information available to management as of May 31, 2017 and August 31, 2016. The respective carrying value of certain financial instruments approximated their fair values due to the short-term nature of these instruments. These financial instruments include cash, accounts payable and accrued expenses.

Derivative Financial Instruments

Derivatives are recorded on the condensed consolidated balance sheet at fair value. The conversion features of the convertible notes are embedded derivatives and are separately valued and accounted for on the consolidated balance sheet with changes in fair value recognized during the period of change as a separate component of other income/expense. Fair values for exchange-traded securities and derivatives are based on quoted market prices. The pricing model we use for determining fair value of our derivatives is the Lattice Model. Valuations derived from this model are subject to ongoing internal and external verification and review. The model uses market-sourced inputs such as interest rates and stock price volatilities. Selection of these inputs involves management’s judgment and may impact net income (see note 7).

Basic and Diluted Loss Per Share

The basic net loss per common share is computed by dividing the net loss by the weighted average number of common stock outstanding. Diluted net loss per common share is computed by dividing the net loss adjusted on an “as if converted” basis, by the weighted average number of common stock outstanding plus potential dilutive securities. For the periods presented, there were no outstanding potential common stock equivalents and therefore basic and diluted earnings per share result in the same figure.

Recently Issued Accounting Pronouncements

In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842). The update requires lessees to recognize assets and liabilities on the balance sheet for the rights and obligations created by long-term leases. The update also requires certain qualitative and quantitative disclosures about the amount, timing and uncertainty of cash flows arising from leases. Accounting by lessors will remain largely unchanged. This update is effective for annual and interim periods beginning after December 15, 2018, with early adoption permitted. Adoption will require a modified retrospective approach beginning with the earliest period presented. We are currently evaluating the potential impact of the update on our financial statements.

In March 2016, the FASB issued ASU 2016-09, Compensation - Stock Compensation (Topic 718). The update covers such areas as the recognition of excess tax benefits and deficiencies, the classification of those excess tax benefits on the statement of cash flows, an accounting policy election for forfeitures, the amount an employer can withhold to cover income taxes and still qualify for equity classification and the classification of those taxes paid on the statement of cash flows. This update will be effective for reporting periods beginning after December 15, 2016, including interim periods within the reporting period. Early adoption is permitted. We are currently evaluating the potential impact of the update on our financial statements.

In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230). The update addresses eight specific cash flow issues and is intended to reduce diversity in practice in how certain cash receipts and cash payments are presented and classified in the statement of cash flows. This update will be effective for reporting periods beginning after December 15, 2017, including interim periods within the reporting period. Early adoption is permitted. We are currently evaluating the potential impact of the update on our financial statements.

There are various other updates recently issued, most of which represented technical corrections to the accounting literature or application to specific industries and are not expected to a have a material impact on the Company’s consolidated financial position, results of operations or cash flows. 
 

Note 2 – Going Concern

As shown in the accompanying financial statements, the Company has incurred recurring net losses from operations resulting in an accumulated deficit of $2,786,598 and a working capital deficit of $1,126,651  as of May 31, 2017. These factors raise substantial doubt about the Company’s ability to continue as a going concern. Management is actively pursuing new ventures to increase revenues. In addition, the Company is currently seeking additional sources of capital to fund short term operations and repay indebtedness. The Company, however, is dependent upon its ability to secure equity and/or debt financing and there are no assurances that the Company will be successful, therefore, without sufficient financing it would be unlikely for the Company to continue as a going concern. 
 
The financial statements do not include any adjustments that might result from the outcome of any uncertainty as to the Company’s ability to continue as a going concern. The financial statements also do not include any adjustments relating to the recoverability and classification of recorded asset amounts, or amounts and classifications of liabilities that might be necessary should the Company be unable to continue as a going concern.

Note 3 – Change of Control

On April 25, 2016, shareholders holding 55,030,600 shares of the outstanding common stock of the Company, representing approximately 71% of the Company’s outstanding shares, acted by written consent to remove the Company’s existing members of the Board of Directors, and in their place appoint David Lelong as the sole director of the Company. Previously, on February 4, 2016, shareholders representing a majority of the outstanding common stock of the Company acted by written consent to remove the Company’s directors and appoint Mr. Lelong as sole director of the Company, and following the February 4, 2016 shareholder action, Mr. Lelong, acting as sole director, replaced Mr. Gerald Ricks as President, Chief Executive Officer and Chairman of the Company. However, under Nevada law, directors may be removed only by shareholders representing two-thirds of outstanding shares; consequently the February 4, 2016 shareholder action was not valid, and on April 25, 2016 the Company sought, and received, new approval from shareholders representing a sufficient percentage of outstanding shares to act validly under Nevada law.

On April 29, 2016, the Board acted to ratify the removal of Mr. Ricks from all positions held by him as an executive officer of the Company, and also ratified the appointment of Mr. Lelong as President, Secretary, Treasurer, Chief Executive Officer, Chief Financial Officer, and Chairman of the Board.

As a result of the above transaction BK Consulting is no longer a related party and Mr. Lelong is now the majority shareholder and a related party.

Note 4 – Note Receivable

On September 15, 2016 the Company and a third party entered into a stock purchase agreement where the Company sold 100% of the outstanding shares of its shell company, Be Tru Organics, Inc., a Nevada corporation in exchange for a $5,000 promissory note, bearing interest at 10% per month and due November 15, 2016.  During the three months ended November 2016 the Company received $5,000 from the repayment of the note receivable.
 
Note 5 – Accounts Payable and Accrued Liabilities

Accounts payable and accrued liabilities consist of the following:

 
 
May 31, 2017
   
August 31, 2016
 
Trade accounts payable
   
102,750
     
28,371
 
Payroll and related
   
6,913
     
2,903
 
Accrued interest
   
5,311
     
13,472
 
 
   
114,974
     
44,746
 

Note 6 – Accrued Officer Salary

During the three months ended May 31, 2017, the Company accrued the amount of $24,000 in salary payable to its President and CEO, David Lelong.  At May 31, 2017 and August 31, 2016, the Company had accrued salary payable in the amount of $96,000 and $24,000, respectively, due to Mr. Lelong.

Note 7 – Related Party Transactions

Former Majority Shareholder – BK Consulting

On October 28, 2015, the Company issued an unsecured convertible loan to a related party of $1,700, non-interest bearing, due on demand and convertible into Common Stock at a rate $0.002 per share, from a major shareholder, BK Consulting, to fund operations.  The Company calculated the beneficial conversion feature embedded in the convertible note.  The conversion feature, in the amount of $1,700, was recorded as debt discount.

On November 2, 2015, the Company converted $29,500 of convertible debt due to BK Consulting, into 14,750,400 shares of common stock at a conversion price of $0.002.  As the note conversion occurred within the terms of the agreement, no gain or loss was recognized.

On November 10, 2015, the Company converted $10,744 of convertible debt due to BK Consulting, into 5,371,500 shares of common stock at a conversion price of $0.002.  As the note conversion occurred within the terms of the agreement, no gain or loss was recognized.

President and CEO – David Lelong

In January and February 2017, the Company’s President and CEO loaned the Company the aggregate amount of $70,000 represented by three notes payable.
 
In April and May 2017, the Company’s President and CEO loaned the Company an additional $134,000 represented by three notes payable.  At May 31, 2017, the Company has outstanding notes payable to its President and CEO in the aggregate amount of $204,000.  The Company accrued interest on these notes in the aggregate amount of $363 and $894 during the three months and nine months ended May 31, 2017, respectively.

Note 8 – Derivative Liability

The Company entered into convertible note agreements containing beneficial conversion features.  One of the features is a ratchet reset provision which allows the note holders to reduce the conversion price should the Company issue equity with an effective price per share that is lower than the stated conversion price in the note agreement (see note 10). The Company accounts for the fair value of the conversion feature in accordance with ASC 815, Accounting for Derivatives and Hedging and EITF 07-05, the embedded derivatives should be bundled and valued as a single, compound embedded derivative, bifurcate treated as a derivative liability. The Company is required to carry the embedded derivative on its balance sheet at fair value and account for any unrealized change in fair value as a component in its results of operations.

The Company recognized that the conversion feature embedded within its convertible debts is a financial derivative. The Generally Accepted Accounting Principles (GAAP) required that the Company’s embedded conversion option be accounted for at fair value. The following schedule shows the change in fair value of the derivative liabilities for the period ended May 31, 2017:
 
 
 
Derivative
 
 
 
Liability
 
Liabilities Measured at Fair Value
     
 
     
Balance as of August 31, 2016
 
$
254,952
 
 
       
Issuances
   
462,431
 
 
       
Conversions / redemptions
   
(775,106
)
 
       
Revaluation
   
342,270
 
 
       
Balance as of May 31, 2017
 
$
284,547
 
 
The derivative liabilities incurred valued based upon the following assumptions and key inputs at May 31, 2017 and August 31, 2016:
 
 
May 31,
 
August 31,
 
Assumption
2017
 
2016
 
Expected dividends:
 
 
0
%
 
 
0
%
Expected volatility:
 
 
37.8% - 276.9
%
 
 
244.4
%
Expected term (years):
0.04 - 0.50 years
 
0.20 years
 
Risk free interest rate:
 
 
0.264% - 0.98
 
 
 
0.26
%
Stock price
 
$
0.51- 1.97
 
 
$
1.89
 

Note 9 – Convertible Notes Payable

3.5% OID Convertible Notes

On May 11, 2016 the Company entered into Securities Purchase Agreements with certain purchasers (“the Holders”).  The Company issued 3.5% original issue discount (“OID”) senior secured convertible promissory notes having an aggregate face amount of $440,000 (the “3.5% OID Convertible Notes”).  These notes bear interest at a rate of 10% per annum and mature in six months.  The Company received cash proceeds of $424,600 net of the 3.5% original issue discount of $15,400.  At the Holders option the principal and accrued interest under the Notes are convertible into common stock at a rate of $0.50 per share and have a full reset feature.  The Notes are secured by all assets of the Company.  The Company at any time may prepay in whole or in part the outstanding principal and accrued interest at 125% during the first 90 days and 130% for the period from the 91st day through maturity. During November 2016 Company entered into forbearance agreements with the investors extending its time to pay the Notes until December 16, 2016. See Note 12.

In addition the Company issued to the Holders an aggregate of 200,000 shares of common stock value at $360,000 as commitment shares.  These shares were issued during the period and are considered a discount to the Notes.  Due to the reset feature of the conversion price of the convertible notes, the Company concluded that a derivative liability existed at the date of issuance and recorded a derivative liability in the amount of $192,841 (see note 7).  The sum of the value of the derivative liability of $192,841, the original issue discount of $15,400,  and the discount attributable to the 200,000 commitment shares of $360,000 was $568,241, which exceeded the $440,000 face amount of the 3.5% OID Convertible Notes by $128,241; this amount was charged to interest expense during the year ended August 31, 2016.  During the three months ended November 30, 2016 the Company amortized $172,735 of these discounts were charged to interest expense.  As of November 30, 2016 and August 31, 2016 the balance due on the 3.5% OID Convertible Notes was $440,000 and $267,265 net of unamortized debt discounts of $0 and $172,735, respectively.
 
During the three months ended November 30, 2016, the Company accrued interest on the 3.5% OID Convertible Notes in the amount of $10,970.  Accrued interest on these notes is convertible to common stock at the same terms as the principal. 
 
During the three months ended February 28, 2017, the 3.5% OID Convertible Notes became due. The Company entered into restructuring agreements with the Holders under the following terms:   new notes (the “January and February 2017 Convertible Notes”) would be issued for the amounts due under the 3.5% OID Convertible Notes;  penalties, fees, and accrued interest in the aggregate amount of $212,702 would be added to the principal amount due under  the January and February 2017 Convertible Notes; 35,000 shares of common stock would be issued as a commitment fee; the January and February 2017 Convertible Notes would be issued at a discount of 3.5%, and bear interest at the rate of 10% per annum; the notes are convertible at a rate of $0.50 per share, and also contain a variable conversion rate whereby, should the Company subsequently sell common stock at a price less than the conversion price, the conversion price of the January and February 2017 Convertible Notes will be reduced to match the lower conversion price. In addition, the proceeds from one of the January and February 2017 Convertible Notes were used to fully redeem one of the 3.5% OID Convertible Notes. The aggregate amount of principal due under the January and February 2017 Convertible Notes is $614,258.  Two of the January and February 2017 Convertible Notes in the aggregate amount of $494,340 are due March 31, 2017, and one of the January and February 2017 Convertible Notes in the amount of $119,918 is due August 17, 2017.  In April 2017, the Company received forbearance letters from the Holders of the January and February 2017 Convertible Notes that are due March 31, 2017 to extend the due date to April 17, 2017 in exchange for principal payments in the aggregate amount of $75,000.   Discounts attributable to the beneficial conversion features of the January and February 2017 Convertible Notes were calculated in the aggregate amount of $426,154.  $177,181 of this amount was amortized to interest expense during the three months ended February 28, 2017; unamortized discounts in the aggregate amount of $252,783 is carried on the Company’s balance sheet at February 28, 2017.

During the three months ended May 31, 2017, the January and February 2017 Convertible Notes became due.  On April 4, 2017, the Company entered into a forbearance agreement with the Holders with the following terms: the Company would pay $75,000 towards the balance of the note in exchange for an extension of the maturity date of the notes until April 17, 2017.  On April 18, 2017 the Company entered into an additional forbearance agreement with the Holders with the following terms: the Company would pay a penalty of $45,000 to the Holders in exchange for an extension of the maturity date until May 1, 2017.  On April 28, 2017, the Company entered into an additional forbearance agreement with the other two Holders with the following terms: the Company would pay a penalty of $20 to the Holders in exchange for an extension of the maturity date until June 2, 2017.  The Holders also converted $15,000 of principal and $10,000 of accrued interest into 208,333 shares of common stock. As of May 31, 2017 the balance due on the January and February 2017 Convertible Notes was $614,258.  The Company also amortized $267,829 of the discount during the three months ended May 31, 2017 to interest expense; the unamortized discount as of May 31, 2017 was $85,212.
 
BK Consulting Notes

On October 28, 2015, the Company issued an unsecured convertible loan to a related party of $1,700, non-interest bearing, due on demand and convertible into Common Stock at a rate $0.002 per share, from a major shareholder, BK Consulting, to fund operations.  The Company calculated the beneficial conversion feature embedded in the convertible note.  The conversion feature, in the amount of $1,700, was recorded as debt discount.
 
On November 2, 2015, the Company converted $29,500 of convertible debt due to the Company’s major shareholder, BK Consulting, into 14,750,400 shares of common stock at a conversion price of $0.002.  As the note conversion occurred within the terms of the agreement, no gain or loss was recognized.

On November 10, 2015, the Company converted $10,744 of convertible debt due to the debt holder, BK Consulting, into 5,371,500 shares of common stock at a conversion price of $0.002.  As the note conversion occurred within the terms of the agreement, no gain or loss was recognized.

The Company calculates any beneficial conversion feature embedded in its convertible notes via the intrinsic value method.  The conversion feature was considered a discount to the notes, to the extent the aggregate value of the conversion feature did not exceed the face value of the notes.  These discounts are amortized to interest expense through earlier of the term or conversion of the notes.  During the three months ended November 30, 2015, the Company recorded debt discounts in the amount of $1,700, respectively.  During the three months ended November 30, 2016, the Company amortized debt discounts to interest expense in the aggregate amount of $1,700.

As of May 31, 2017 and August 31, 2016 the balance of the convertible debt due to BK Consulting was $0 and $0.  The Company recorded imputed interest on all outstanding BK Consulting convertible notes at a rate of 8%.  The Company recorded imputed interest in the amount of $0 and $553 during the three months ended May 31, 2017 and 2016 related to the BK Consulting convertible notes.

Note 10 – Stockholders’ Equity

Preferred stock
The Company is authorized to issue 20,000,000 shares of $0.001 par value preferred stock as of May 31, 2017 and August 31, 2016.  The Company has 1,000 shares of preferred stock issued and outstanding as of May 31, 2017, 2016 and August 31, 2016.

Common stock
The Company is authorized to issue 580,000,000 shares of $0.001 par value common stock as of May 31, 2017 and August 31, 2016.  The Company has 78,018,636 and 77,775,303 shares of common stock issued and outstanding as of May 31, 2017 and August 31, 2016.
 
On November 2, 2015, BK Consulting converted $29,500 of convertible debt into 14,750,400 shares of common stock at a conversion price of $0.002.  As the note conversion occurred within the terms of the agreement, no gain or loss was recognized.

On November 3, 2015, the Company issued 14,500,000 shares of common stock at par value, $0.001 per share, to a third party investor, for cash proceeds of $14,500.

On November 10, 2015, BK Consulting converted $10,744 of convertible debt into 5,371,500 shares of common stock at a conversion price of $0.002.  As the note conversion occurred within the terms of the agreement, no gain or loss was recognized.

On November 11, 2015, the Company issued 5,371,500 shares of common stock at par value, $0.001 per share, to BK Consulting, for a stock subscription receivable, valued at $5,372.  As of August 31, 2016, subscription receivables were $5,372.
 

On May 11, 2016, the Company issued 200,000 shares of common stock, valued at $360,000 as commitment shares to convertible note holders.  These shares were issued at fair value based on the market price at issuance of $1.80 per share.

On January 4, 2017, the Company issued 35,000 shares of common stock, valued at $68,950 as commitment shares to convertible note holders.  These shares were issued at fair value based on the market price at issuance of $1.80 per share.

On May 2, 2017, the Company issued 208,333 shares of common stock, for the conversion of $15,000 of principal and $10,000 of accrued interest of convertible notes payable.

Note 11 – Fair Value of Financial Instruments

Under FASB ASC 820-10-05, the Financial Accounting Standards Board establishes a framework for measuring fair value in generally accepted accounting principles and expands disclosures about fair value measurements. This Statement reaffirms that fair value is the relevant measurement attribute. The adoption of this standard did not have a material effect on the Company’s financial statements as reflected herein. The carrying amounts of cash, accounts payable and accrued expenses reported on the balance sheet are estimated by management to approximate fair value primarily due to the short term nature of the instruments. The Company had no other items that required fair value measurement on a recurring basis.
 
The Company’s financial assets and liabilities are measured using inputs from the three levels of the fair value hierarchy. The three levels are as follows:

Level 1 - Inputs are unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the ability to access at the measurement date.

Level 2 - Inputs include quoted prices for similar assets and liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability (e.g., interest rates, yield curves, etc.), and inputs that are derived principally from or corroborated by observable market data by correlation or other means (market corroborated inputs).

Level 3 - Unobservable inputs that reflect our assumptions about the assumptions that market participants would use in pricing the asset or liability.

The following summarized the Company’s financial liabilities that are recorded at fair value on a recurring basis at May 31, 2017 and August 31, 2016.
 
 
 
May 31, 2017
 
 
 
Level 1
   
Level 2
   
Level 3
   
Total
 
Liabilities
                       
Derivative liabilities
 
$
-
   
$
-
   
$
284,547
   
$
284,547
 

 
 
August 31, 2016
 
 
 
Level 1
   
Level 2
   
Level 3
   
Total
 
Liabilities
                       
Derivative liabilities
 
$
-
   
$
-
   
$
254,952
   
$
254,952
 

Note 12 – Asset Purchase Agreement

On May 18, 2016 the Company entered into an Asset Purchase Agreement (the “Asset Purchase Agreement”) with Sharp Innovations, LLC (“Seller”) to acquire certain assets  consisting of (a) tangible assets of Seller consisting of approximately 450 containers of that performance drink currently marketed under the name “sports leg and lung”; (b) all intangible assets of Seller, including goodwill, licenses, patents, trade secrets, trademarks, copyrights, marketing rights, etc., specifically relating to and including certain intellectual property described as: that certain website URL www.sportslegandlung.com, the product formula for that performance drink currently marketed under the name “sports leg and lung”, all proprietary data owned and collected by the Seller with respect to the Product, and all rights of any description related to two future product formulations (one for weight loss and one for anti-aging, both of which the Seller has agreed to develop to completion and timely deliver to the Purchaser at no further charge).  The purchase price consisted of Two Hundred Fifty Thousand ($250,000) Dollars in cash.  The acquisition of the assets has been accounted for as a purchase in accordance with ASC Topic 805 Business Combinations and the assets have been included in the Company’s financial statements since May 18, 2016.  The Company obtained a third-party independent valuation of the assets acquired.
 
The acquisition date estimated fair value prior to impairment of assets acquired consisted of following:

Inventory
 
$
1,049
 
Intangible assets
   
248,951
 
Total purchase price
 
$
250,000
 

During the year ended August 31, 2016 the Company performed test on intangible assets and recorded an intangible asset impairment loss of $248,951.

Note 13 – Subsequent Events
 
On June 1, 2017 and June 30, 2017 , the Company issued demand note s to its President and CEO in the amount of $7,000 and $11,000, respectively, for cash received.
 
On June 2, 2017, note h olders converted principal of the January and February 2017 Convertible Notes in the amount of $25,000 into 208,333 shares of common stock.
 
On June 5, 2017, the Company entered into a forbearance agreement with Holders of the January and February 2017 Convertible Notes with the following terms: principal due under the Note s would be increased by $50,111 in exchange for extending the due date of the note to December 27, 2017 , and the Holders would waive the $163,151 default penalty associated with the N otes.
 
On June 8, 2017, the Company  entered into a forbearance agreement with  Holders of the January and February 2017 Convertible Notes with the following terms: principal due under the Note would be increased by $28,792 in exchange for extending the due date of the note to December 27, 2017.
 
We evaluated subsequent events after the balance sheet date through the date the financial statements were issued. We did not identify any additional material events or transactions occurring during this subsequent event reporting period that required further recognition or disclosure in these financial statements.
 


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

OVERVIEW AND OUTLOOK
 
Sport Endurance, Inc. (“Sport Endurance”) is a Nevada corporation that currently develops, markets, and distributes quality dietary supplements throughout the United States.  
 
For the three and nine months ended May 31, 2017, we had net losses of $465,671 and $1,421,384,  respectively, compared to net losses of $464,483  and $490,655, respectively,  for the three and nine months ended May 31, 2016.  Our accumulated deficit as of May 31, 2017 was $2,786,598.  These conditions raise substantial doubt about our ability to continue as a going concern over the next twelve months.
 
Results of Operations for the Three Months Ended May 31, 2017 and 2016

Revenues
The Company had sales of $714 during the three months ended May 31, 2017 compared to $0 for the three months ended May 31, 2016.  The Company had cost of goods sold related to the sale in the amount of $138 for net revenue of $576 during the three months ended May 31, 2017.  We expect revenues to increase in future period as we continue to implement our business plan.

General and administrative expenses
General and administrative expenses were $83,322  for the three months ended May 31, 2017 compared to $61,862 for the three months ended May 31, 2016, an increase of $21,460.  The increase in general and administrative expense for the three months ended May 31, 2017 compared to the three months ended May 31, 2016 was due primarily due to implementation of our business plan.  We expect general and administrative expense to increase in future periods as we continue to implement our business plan and commence operations.
 
Professional fees
Professional fees were $32,234  for the three months ended May 31, 2017 compared to $53,525 for the three months ended May 31, 2016, a decrease of $21,291.  Professional fees consist primarily of legal and accounting fees.  We expect professional fees to increase in future periods as we implement our business plan.

Impairment of assets
During the three months ended May 31, 2016 the Company acquired inventory and certain intangible assets as part of an asset purchase agreement.  The Company revalued the inventory and intangibles at the end of the period and determined that the fair value was less than the book value and recorded an impairment charges in the amount of $167,251 during the three months ended May 31, 2016.

Depreciation
Depreciation expense for the three months ended May 31, 2017 totaled $0 compared to $546 for the three months ended May 31, 2016, a decrease of $546.  The decrease in depreciation was primarily due to fully depreciating certain office equipment.  

Interest expense
Net interest expense for the three months ended May 31, 2017 was $274,693 compared to $180,298 for the three months ended May 31, 2016, an increase of $94,395.  The decrease in net interest expenses for the three months ended May 31, 2017 compared to 2016 was primarily to the amortization of the discount on our convertible notes payable.
 
Change in Fair Value of Derivative Liability
The Company had a non cash loss of $75,998 on revaluation of derivative liabilities during the three months ended May 31, 2017 compared to $1,001 in the three months ended May 31, 2016.  The increase was due primarily to the restructuring of our debt during the current period.

Net loss
For the reasons above, our net loss for the three months ended May 31, 2017 was $465,671 compared to $464,483 for the three months ended May 31, 2016, an increase in our net loss of $1,189. 
 
Results of Operations for the Nine Months Ended May 31, 2017 and 2016

Revenues
The Company had sales of $1,034 during the nine  months ended May 31, 2017 compared to $0 for the nine months ended May 31, 2016.  The Company had cost of goods sold related to the sale in the amount of $231 for net revenue of $803 during the nine months ended May 31, 2017.  We expect revenues to increase in future period as we continue to implement our business plan.

General and administrative expenses
General and administrative expenses were $341,827 for the nine  months ended May 31, 2017 compared to $74,993 for the nine months ended May 31, 2016, an increase of $266,834. The increase in general and administrative expense for the nine months ended May 31, 2017 compared to the nine  months ended May 31, 2016 was due primarily due to implementation of our business plan.  We expect general and administrative expense to increase in future periods as we continue to implement our business plan and commence operations.
 
Professional fees
Professional fees were $79,332  for the nine  months ended May 31, 2017 compared to $63,217 for the nine months ended May 31, 2016, an increase of $16,115.  Professional fees consist primarily of legal and accounting fees.  We expect professional fees to increase in future periods as we implement our business plan.

Impairment of assets
During the nine months ended May 31, 2016 the Company acquired inventory and certain intangible assets as part of an asset purchase agreement.  The Company revalued the inventory and intangibles at the end of the period and determined that the fair value was less than the book value and recorded an impairment in the amount of $167,251 during the nine months ended May 31, 2016.

Depreciation
Depreciation expense for the nine months ended May 31, 2017 totaled $0 compared to $1,638 for the nine months ended May 31, 2016, a decrease of $1,638.  The decrease in depreciation was primarily due to fully depreciating certain office equipment.  

Interest expense
Net interest expense for the nine  months ended May 31, 2017 was $658,758 compared to $182,555 for the nine months ended May 31, 2016, an increase of $476,203.  The increase in net interest expenses for the nine months ended May 31, 2017 compared to 2016 was primarily to the amortization of the discount on our convertible notes payable.
 
Change in Fair Value of Derivative Liability
The Company had a non cash loss of $342,270 on revaluation of derivative liabilities during the nine months ended May 31, 2017 compared to $1,001 in the nine months ended May 31, 2016.  The increase was due primarily to the restructuring of our debt during the current period.

Net loss
For the reasons above, our net loss for nine  months ended May 31, 2017 was $1,421,384 compared to $490,655 for the nine months ended May 31, 2016, an increase in our net loss of $930,729.     
 
Liquidity and Capital Resources

The following table summarizes total current assets, liabilities and working capital at May 31, 2017 compared to August 31, 2016.

 
 
May 31,
2017
   
August 31,
2016
 
 
           
Current Assets
 
$
16,469
   
$
16,640
 
 
               
Current Liabilities
 
$
1,143,120
   
$
590,963
 
 
               
Working Capital (Deficit)
 
$
(1,126,651
)
 
$
(574,323
)
 
During the nine months ended May 31, 2017, the Company had cash used in operating activities of $87,713.  This primarily consisted of Company’s net loss of $1,421,384,  decreased by change in fair value of derivative liabilities of $342,270 and the amortization of discount on convertible debt in the amount of $625,853.
 
As of July 6, 2017, we had cash and cash equivalents of $1,548.  We do not have sufficient working capital to pay our indebtedness which is due December 27, 2017 or to pay our expenses for the next 12 months. Our plan for satisfying our cash requirements to pay our debt, including convertible debt, over the next 2 months and to remain operational for the next 12 months is through sale of shares of our capital stock or convertible debt. We anticipate revenue during that same period of time, but do not anticipate generating sufficient amounts of revenues to meet our working capital requirements. We cannot assure you we will be successful in meeting our working capital needs.
 

Should we not be able to continue to secure additional financing when needed, we may be required to slow down or suspend our business activities or reduce the scope of our current operations, either of which would have a material adverse effect on our business.
 
Our future capital requirements will depend on many factors, including the development of our business; the cost and availability of third-party financing for development; the condition of the capital markets in general and for speculative microcap companies; and administrative and legal expenses.
 
We anticipate that we will incur operating losses in the next 12 months. Our prospects must be considered in light of the risks, expenses and difficulties frequently encountered by companies in their early stage of development.  Such risks for us include, but are not limited to, an evolving and unpredictable business model; recognition of revenue sources; and the management of growth. To address these risks, we must, among other things, expand our customer base, implement and successfully execute our business and marketing strategy, respond to competitive developments, and attract, retain and motivate qualified personnel.  There can be no assurance that we will be successful in addressing such risks, and the failure to do so could have a material adverse effect on our business prospects, financial condition and results of operations.
 
Cautionary Note Regarding Forward Looking Statements

This Report contains forward-looking statements including statements regarding our generation of revenues, our increasing expenses, the availability of future financing, and our liquidity. All statements other than statements of historical facts contained in this report, including statements regarding our future financial position, liquidity, business strategy and plans and objectives of management for future operations, are forward-looking statements. The words “believe,” “may,” “estimate,” “continue,” “anticipate,” “intend,” “should,” “plan,” “could,” “target,” “potential,” “is likely,” “will,” “expect” and similar expressions, as they relate to us, are intended to identify forward-looking statements. We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy and financial needs.
 
The results anticipated by any or all of these forward-looking statements might not occur. Important factors that could cause actual results to differ from those in the forward-looking statements include our lack of working capital, the failure to generate sufficient revenue, the reluctance of consumers to purchase products, difficulties we may encounter in raising capital based upon our current financial condition and lack of material revenues, and the condition of the securities markets in general and for microcap companies in particular. Further information on our risk factors is contained in our filings with the SEC, including the Form 10-K for the year ended August 31, 2016 which was for a prior business. Any forward-looking statement made by us in this report speaks only as of the date on which it is made. Factors or events that could cause our actual results to differ may emerge from time to time, and it is not possible for us to predict all of them. We undertake no obligation to publicly update or revise any forward-looking statements, whether as the result of new information, future events or otherwise.
 
Going concern.

Our financial statements are prepared using accounting principles generally accepted in the United States of America applicable to a going concern, which contemplate the realization of assets and liquidation of liabilities in the normal course of business. We have incurred continuous losses from operations, have an accumulated deficit of $2,786,598 and a working capital deficit of $1,126,651 at May 31, 2017, and have reported negative cash flows from operations since inception. In addition, we do not currently have the cash resources to meet our operating commitments for the next twelve months.  The Company’s ability to continue as a going concern must be considered in light of the problems, expenses, and complications frequently encountered by entrance into established markets and the competitive nature in which we operate.

Our ability to continue as a going concern is dependent on our ability to generate sufficient cash from operations to meet our cash needs and/or to raise funds to finance ongoing operations and repay debt.  There can be no assurance, however, that we will be successful in our efforts to raise additional debt or equity capital and/or that our cash generated by our future operations will be adequate to meet our needs. These factors, among others, indicate that we may be unable to continue as a going concern for a reasonable period of time. 
 
Off-Balance Sheet Arrangements

We do not have any off-balance sheet arrangements that have, or are reasonably likely to have, a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results or operations, liquidity, capital expenditures or capital resources that are material to investors.


Critical Accounting Estimates

Management uses various estimates and assumptions in preparing our financial statements in accordance with generally accepted accounting principles.  These estimates and assumptions affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the reported revenues and expenses. Accounting estimates that are the most important to the presentation of our results of operations and financial condition, and which require the greatest use of judgment by management, are designated as our critical accounting estimates. We have the following critical accounting estimates:

·
Inventory: Inventories are valued at the lower of cost or market (“LCM”), which requires us to make significant estimates in assessing our inventory balances for potential LCM adjustments.
·
Estimates and assumptions used in valuation of derivative liability: Management utilizes a lattice model to estimate the fair value of derivative liabilities. The model includes subjective assumptions that can materially affect the fair value estimates.

These significant accounting estimates or assumptions bear the risk of change due to the fact that there are uncertainties attached to these estimates or assumptions, and certain estimates or assumptions are difficult to measure or value.
Management bases its estimates on various assumptions that are believed to be reasonable in relation to the financial statements taken as a whole under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results could differ from those estimates.

Recently Issued Accounting Standards

In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842). The update requires lessees to recognize assets and liabilities on the balance sheet for the rights and obligations created by long-term leases. The update also requires certain qualitative and quantitative disclosures about the amount, timing and uncertainty of cash flows arising from leases. Accounting by lessors will remain largely unchanged. This update is effective for annual and interim periods beginning after December 15, 2018, with early adoption permitted. Adoption will require a modified retrospective approach beginning with the earliest period presented. We are currently evaluating the potential impact of the update on our financial statements.

In March 2016, the FASB issued ASU 2016-09, Compensation - Stock Compensation (Topic 718). The update covers such areas as the recognition of excess tax benefits and deficiencies, the classification of those excess tax benefits on the statement of cash flows, an accounting policy election for forfeitures, the amount an employer can withhold to cover income taxes and still qualify for equity classification and the classification of those taxes paid on the statement of cash flows. This update will be effective for reporting periods beginning after December 15, 2016, including interim periods within the reporting period. Early adoption is permitted. We are currently evaluating the potential impact of the update on our financial statements.

In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230). The update addresses eight specific cash flow issues and is intended to reduce diversity in practice in how certain cash receipts and cash payments are presented and classified in the statement of cash flows. This update will be effective for reporting periods beginning after December 15, 2017, including interim periods within the reporting period. Early adoption is permitted. We are currently evaluating the potential impact of the update on our financial statements.

There are various other updates recently issued, most of which represented technical corrections to the accounting literature or application to specific industries and are not expected to a have a material impact on the Company’s consolidated financial position, results of operations or cash flows. 
  
Item 3. Quantitative and Qualitative Disclosure About Market Risk.
 
This item is not applicable as we are currently considered a smaller reporting company.

Item 4. Controls and Procedures.
 
Disclosure controls and procedures are controls and other procedures that are designed to ensure that information required to be disclosed by us in the reports that we file or submit pursuant to the requirements of the Securities Exchange Act of 1934 is recorded, processed, summarized and reported, within the time periods specified in the Securities and Exchange Commission’s rules and forms. Disclosure controls and procedures include, among other things, controls and procedures designed to ensure that information required to be disclosed by us in the reports that we file under the Exchange Act is accumulated and communicated to our management, including our principal executive and financial officers, as appropriate, to allow timely decisions regarding required disclosure.


Evaluation of Disclosure Controls and Procedures

Our Chief Executive Officer and Chief Financial Officer, David Lelong, has evaluated the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended) as of the end of the period covered by this report.  Based on the evaluation, Mr. Lelong concluded that our disclosure controls and procedures are not effective in timely alerting them to material information relating to us that is required to be included in our periodic SEC filings and ensuring that information required to be disclosed by us in the reports we file or submit under the Act is accumulated and communicated to our management, including our chief financial officer, or person performing similar functions, as appropriate to allow timely decisions regarding required disclosure, for the following reasons:

The Company does not have an independent board of directors or audit committee or adequate segregation of duties;

All of our financial reporting is carried out by our financial consultant;

We do not have an independent body to oversee our internal controls over financial reporting and lack segregation of duties due to the limited nature and resources of the Company.

We plan to rectify these weaknesses by implementing an independent board of directors and hiring additional accounting personnel once we have additional resources to do so.

Changes in Internal Control Over Financial Reporting

There were no changes in our internal control over financial reporting that occurred during our most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
 


PART II – OTHER INFORMATION

Item 1. Legal Proceedings.
 
From time to time, we may be involved in litigation relating to claims arising out of our operations in the normal course of business. As of the date of this Report to our knowledge, there were no pending or threatened lawsuits that could reasonably be expected to have a material effect on the results of our operations and there are no proceedings in which any of our directors, officers or affiliates, or any registered or beneficial shareholder, is an adverse party or has a material interest adverse to our interest.

Item 1A. Risk Factors.

This item is not applicable to a smaller reporting company.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.

We have previously disclosed all sales of securities without registration under the Securities Act of 1933 (the “Act”), other than the following:
 
In January 2017 and February 2017, the Company entered into restructuring agreements with holders of its 3.5% original issue discount senior secured convertible promissory notes issued in May 2016 in an aggregate face amount of $440,000 (the “3.5% OID Convertible Notes”). Pursuant to these agreements, the Company agreed to issue new notes (the “January and February 2017 Convertible Notes”) for the amounts due under the 3.5% OID Convertible Notes;  penalties, fees, and accrued interest in the aggregate amount of $212,702 would be added to the principal amount due under  the January and February 2017 Convertible Notes; 35,000 shares of common stock would be issued as a commitment fee; the January and February 2017 Convertible Notes would be issued at a discount of 3.5%, and bear interest at the rate of 10% per annum; the notes are convertible at a rate of $0.50 per share, and also contain a variable conversion rate whereby, should the Company subsequently sell common stock at a price less than the conversion price, the conversion price of the January and February 2017 Convertible Notes will be reduced to match the lower conversion price. In addition, the proceeds from one of the January and February 2017 Convertible Notes were used to fully redeem one of the 3.5% OID Convertible Notes. The aggregate amount of principal due under the January and February 2017 Convertible Notes is $614,258.  Two of the January and February 2017 Convertible Notes in the aggregate amount of $494,340 are due April 17, 2017, and one of the January and February 2017 Convertible Notes in the amount of $119,918 is due August 17, 2017.  On June 26, 2017,  the January and February 2017 Convertible Notes maturity dates were extended until December 27, 2017.
 
The January and February 2017 Convertible Notes and the 35,000 shares of common stock issued as a commitment fee were issued and sold in reliance upon the exemption from registration contained in Section 4(a)(2) of the Act and Rule 506(b) promulgated thereunder.
 
On May 2, 2017, the Company issued 208,333 shares of common stock, for the conversion of $15,000 of principal and $10,000 of accrued interest of convertible notes payable.

Item 3. Defaults Upon Senior Securities.
 
None.

Item 4. Mine Safety Disclosures.

None.

Item 5. Other Information.

None.
 


Item 6. Exhibits.
 
 
 
 
 
Incorporated by reference
Exhibit
 
Exhibit Description
Filed herewith
Form
Exhibit
Filing date
3.1
 
Articles of Incorporation
 
S-1
3.1
2/19/10
3.2
 
X
     
3.3
 
Bylaws of Sport Endurance, Inc.
 
8-K
3.2
4/29/16
3.4
 
Certificate of Designation of Class A Preferred
 
S-1
3.2
2/19/10
10.1
 
X
     
10.2
 
X
     
10.3
 
X
     
10.4
 
X
     
10.5
 
2% Promissory Note Issued April 21, 2017
 
8-K
10.2
4/24/17
10.6
 
Form of Forbearance on Senior Secured Convertible Promissory Notes dated April 18, 2017
 
8-K
10.1
4/24/17
10.7
 
Form of 10% Convertible Note Issued January 27, 2017
 
10-Q
10.4
4/12/17
10.8
 
Form of 10% Convertible Note Issued February 17, 2017
 
10-Q
10.5
4/12/17
10.9
 
2% Promissory Note Issued January 4, 2017
 
10-Q
10.6
4/12/17
10.10
 
2% Promissory Note Issued January 26, 2017
 
10-Q
10.7
4/12/17
10.11
 
2% Promissory Note Issued February 28, 2017
 
10-Q
10.8
4/12/17
10.12
 
Form of Forbearance Agreement dated January 4, 2017
 
8-K
10.1
1/10/17
10.13
 
Form of Forbearance Agreement dated December 28, 2016
 
8-K
10.1
1/4/17
10.14
 
Form of 10% Convertible Note Issued December 28, 2016
 
8-K
10.2
1/4/17
10.15
 
Asset Purchase and Sale Agreement
 
10-Q
10.3
7/15/16
10.16
 
3.5% Original Issue Discount 10% Senior Secured Convertible Promissory Note Due November 11, 2016
 
8-K
4.1
5/13/16
10.17
 
Securities Purchase Agreement
 
8-K
10.1
5/13/16
10.18
 
Security Agreement
 
8-K
10.2
5/13/16
31.1
 
X
 
 
 
31.2
 
X
 
 
 
32.1
 
X
 
 
 
101.INS
 
XBRL Instance Document
X
 
 
 
101.SCH
 
XBRL Taxonomy Extension Schema Document
X
 
 
 
101.CAL
 
XBRL Taxonomy Extension Calculation Linkbase Document
X
 
 
 
101.DEF
 
XBRL Taxonomy Extension Definition Linkbase Document
X
 
 
 
101.LAB
 
XBRL Taxonomy Extension Label Linkbase Document
X
 
 
 
101.PRE
 
XBRL Taxonomy Extension Presentation Linkbase Document
X
 
 
 

 
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 thereunto duly authorized.


 
SPORT ENDURANCE, INC.
 
       
Date: July 14, 2017
By:
/s/ David Lelong  
   
David Lelong
 
   
President, Chief Executive Officer, Director
(Principal Executive Officer, Principal Financial Officer,
and Principal Accounting Officer)
 
       

23


Exhibit 3.2
 
 
 
ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www . nv sos.gov
 
Certificate of Amendment
(PURSUANT TO NRS 78.385 AND 78.390)
     
Filed in the office of
Ross Miller
Secretary of State
State of Nevada
 Document Number
20120741863-04
 
 Filing Date and Time
10/31/2012 9:08 AM
 
 Entity Number
C184-2001
         
 
USE BLACK INK ONLY   DO NOT HIGHLIGHT
ABOVE SPACE IS FOR OFFICE USE ONLY
 
Certificate of Amendment to Articles of Incorporation
For Nevada Profit Corporations
(Pursuant to NRS 78.385 and 78.390 - After Issuance of Stock)
 
1. 
Name of Represented Entity:
 
Sport Endurance Inc.
 
2. 
The articles have been amended as follows: (provide article numbers, if available)
 
Previous Stock Value: Par Value Shares: 500,000,000 Value: $ 0.001 No Par Value Shares: 0
 
Total Authorized Capital: $ 500,000.00

New Stock Value: Par Value Shares: 600,000,000 Value: $ 0.001 Par Value Shares: 600,000,000 Value: $ 0.001 No Par Value Shares: 0  

Common Shares: 580,000,000 Preferred Share: 20,000,000

Total Authorized Capital: $ 600,000.00
 
3. 
The vote by which the stockholders holding shares in the corporation entitling them to exercise at least a majority of the voting power, or such greater proportion of the voting power as may be required in the case of a vote by classes or series, or as may be required by the provisions of the articles of incorporation* have voted in favor of the amendment is:       unanimous
 
4.
Effective date and time of filing: (optional)                                           Date:                                                           Time:                                                  
(must not be later than 90 days after the certificate is filed)
 
5.
Signature: (required)
 
/s/ Gerald Ricks
Signature of Officer  
 
*If any proposed amendment would alter or change any preference or any relative or other right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition to the affirmative vote otherwise required, of the holders of shares representing a majority of the voting power of each class or series affected by the amendment regardless to limitations or restrictions on the voting power thereof.
 
IMPORTANT: Failure to include any of the above information and submit with the proper fees may cause this filing to be rejected.
 
This form must  be accompanied  by appropriate fees.
Nevada Secretary of State Amend Profit-After
Revised : 8-31-11

 
Exhibit 10.1
Sport Endurance, Inc.
222 Broadway, 19th Floor
New York, NY 10038


__________________, 2017



_____________________
_____________________
_____________________
Attention: __________________
 

Re:            Sport Endurance, Inc. / Forbearance on Senior Secured Promissory Notes

Dear Sirs:

This letter agreement (the “Agreement”) acknowledges that in exchange for Sport Endurance, Inc. (the “Company”) paying ______________________ $___ and other good and valuable consideration, receipt of which is acknowledged, ___________ extends the due date of   the 10% Senior Secured Promissory Note (the “Senior Note”), to and including 5:00 pm on _________________(the “Due Date”).

Without modifying or amending the terms of the Senior Note, the Security Agreement or the Purchase Agreement , ____________   agrees to forebear and not to seek collection against the Company of any amounts due under the Senior Note,   Security Agreement or Purchase Agreement through and until the Due Date. The period of forbearance provided in this Agreement shall terminate on the Due Date if the amount due under the Senior Note is not paid within that period.

Except as modified by this Agreement, the Company hereby ratifies and confirms the terms and provisions of the Senior Note, the Security Agreement and the Purchase Agreement. The Senior Note , Security Agreement, Purchase Agreement and all other agreements, instruments and other documents executed in connection with the obligations of the Company under the Senior Note are legal, valid, binding and enforceable against the Company in accordance with their terms.

Any number of counterparts of this Agreement may be signed and delivered, each of which shall be considered an original and all of which, together, shall constitute one and the same instrument.

Please sign below evidencing your agreement to be bound by this Agreement and return to us.




Very truly yours,


_________________________
_______________
President and CEO

We hereby agree to the foregoing:

________________________


By:                                                                       
_____________________,


 
 
 
 

Exhibit 10.2
 
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.  THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.


Issuance Date: _____________, 2017
                                 US$__________________

AMENDED AND RESTATED
3.5% ORIGINAL ISSUE DISCOUNT
10% SENIOR SECURED CONVERTIBLE PROMISSORY NOTE
DUE ______________, 2017

THIS 10% SENIOR SECURED CONVERTIBLE PROMISORY NOTE is one of a series of duly authorized and validly issued as of _________________  10% Senior Secured Convertible Promissory Notes issued at a 3.5% original issue discount by SPORT ENDURANCE, INC. , a Nevada corporation (the “ Company ”) (this note, the “ Note ” and, collectively with the other notes of such series, the “ Notes ”).  This Note replaces the $_______________ Note issued to ____________________________ on ______________, 2017 following the assignment of such Note for value to _____________________ as of ______________, 2017. As a result of previous partial payments, the total amount owing on the Note as of the Issuance Date is $_____________.

FOR VALUE RECEIVED, the Company promises to pay to __________________ or his registered assigns (the “ Holder ”), or shall have paid pursuant to the terms hereunder, the principal sum of ________________________ on ____________, 2017 (the “ Maturity Date ”) or such earlier date as this Note is required or permitted to be repaid as provided hereunder, and to pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note in accordance with the provisions hereof.

This Note is subject to the following additional provisions:

Section 1 .            Definitions .  For the purposes hereof, (a) capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement (as defined herein) and (b) the following terms shall have the following meanings:

Alternate Consideration ” shall have the meaning set forth in Section 5(e) .



Bankruptcy Event ” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or any Significant Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof any such case or proceeding that is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary thereof is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company or any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company or any Significant Subsidiary thereof makes a general assignment for the benefit of creditors, (f) the Company or any Significant Subsidiary thereof calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts or (g) the Company or any Significant Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.

Base Conversion Price ” shall have the meaning set forth in Section 5(b) .

Beneficial Ownership Limitation ” shall have the meaning set forth in Section 4(d) .

Black Scholes Value ” means the value of the outstanding principal amount of this Note, plus all accrued and unpaid interest hereon based on the Black and Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“ Bloomberg ”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Maturity Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Maturity Date.

Business Day ” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

Buy-In ” shall have the meaning set forth in Section 4(c)(v) .

Change of Control Transaction ” means the occurrence after the  Issuance Date of any of (a) an acquisition after the Issuance Date by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of 50% of the voting securities of the Company (other than by means of conversion, exercise or exchange of the Notes or the Securities issued together with the Notes), (b) the Company merges into or consolidates with any other Person, or any Person merges into or consolidates with the Company and, after giving effect to such transaction, the shareholders of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the Company or the successor entity of such transaction, (c) the Company sells or transfers all or substantially all
2


of its assets to another Person and the shareholders of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately after the transaction, (d) a replacement at one time or within a three year period of more than one-half of the members of the Board of Directors which is not approved by a majority of those individuals who are members of the Board of Directors on the Issuance Date (or by those individuals who are serving as members of the Board of Directors on any date whose nomination to the Board of Directors was approved by a majority of the members of the Board of Directors who are members on the Issuance Date), or (e) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in clauses (a) through (d) above.

Collateral Agent ” means the party listed on Schedule 1 .

Conversion ” shall have the meaning ascribed to such term in Section 4 .

Conversion Date ” shall have the meaning set forth in Section 4(a) .

Conversion Price ” shall have the meaning set forth in Section 4(b) .

Conversion Schedule ” means the Conversion Schedule in the form of Schedule 1 attached hereto.

Conversion Shares ” means, collectively, the shares of Common Stock issuable upon conversion of this Note in accordance with the terms hereof.

Default Conversion Price ” shall have the meaning set forth in Section 4(b) .

Default Interest Rate ” shall have the meaning set forth in Section 2(a) .

Dilutive Issuance ” shall have the meaning set forth in Section 5(b) .

Dilutive Issuance Notice ” shall have the meaning set forth in Section 5(b) .

DWAC ” means the Deposit or Withdrawal at Custodian system at The Depository Trust Company.

Event of Default ” shall have the meaning set forth in Section 7(a) .

Exempt Issuance ” shall have the meaning set forth in the Purchase Agreement.

Force Majure ” means the Company shall be excused from any delay in performance or for non-performance of any of the terms and conditions of this Agreement caused by any Force Majeure event. Force Majeure shall mean strikes, labor disputes, freight embargoes, interruption or failure in the Internet, telephone or other telecommunications service or related equipment, material interruption in the mail service or other means of communication within the United States, if the Company shall have sustained a material or substantial loss by fire, flood, accident, hurricane, earthquake, theft, sabotage, or other calamity or malicious act, whether or not such loss shall have been insured, acts of God, outbreak or material escalation of hostilities or civil disturbances,  national emergency or war (whether or not declared), or other calamity or crises including a terrorist act or acts affecting the United States, future laws, rules, regulations or acts of any government (including any orders, rules or regulations issued by any official or agency of such government), or any cause beyond the reasonable control of the Company.

3


Fundamental Transaction ” shall have the meaning set forth in Section 5(e) .

Indebtedness ” shall have the meaning set forth in the Purchase Agreement.

Late Fees ” shall have the meaning set forth in Section 2(c) .

Liens ” shall have the meaning set forth in the Purchase Agreement.

Mandatory Default Amount ” means the sum of (a) 130% of the outstanding principal amount of this Note, plus 100% of accrued and unpaid interest hereon, and (b) all other amounts, costs, expenses and liquidated damages due in respect of this Note.

New York Courts ” shall have the meaning set forth in Section 8(e) .

Note Register ” shall mean the Company’s records regarding the ownership of the Note.

Notice of Conversion ” shall have the meaning set forth in Section 4(a) .

Option Value ” means the value of a Common Stock Equivalent based on the Black Scholes Option Pricing model obtained from the "OV" function on Bloomberg determined as of (A) the Trading Day prior to the public announcement of the issuance of the applicable Common Stock Equivalent, if the issuance of such Common Stock Equivalent is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Common Stock Equivalent if the issuance of such Common Stock Equivalent is not publicly announced, for pricing purposes and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of the applicable Common Stock Equivalent as of the applicable date of determination, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of (A) the Trading Day immediately following the public announcement of the applicable Common Stock Equivalent if the issuance of such Common Stock Equivalent is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Common Stock Equivalent if the issuance of such Common Stock Equivalent is not publicly announced, (iii) the underlying price per share used in such calculation shall be the highest VWAP of the Common Stock during the period beginning on the Trading Day prior to the execution of definitive documentation relating to the issuance of the applicable Common Stock Equivalent and ending on (A) the Trading Day immediately following the public announcement of such issuance, if the issuance of such Common Stock Equivalent is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Common Stock Equivalent if the issuance of such Common Stock Equivalent is not publicly announced, (iv) a zero cost of borrow and (v) a 360 day annualization factor.

Permitted Indebtedness ” means (a) the indebtedness evidenced by the Notes, and (b) capital lease obligations and purchase money indebtedness incurred in connection with the acquisition of machinery and equipment as long as such capital leases and indebtedness are approved in advance by the Collateral Agent.

Permitted Lien ” means the individual and collective reference to the following: (a) Liens for taxes, assessments and other governmental charges or levies not yet due or Liens for taxes, assessments and other governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance with GAAP, (b) Liens imposed by law which were incurred in the ordinary course of the
4


Company’s business, such as carriers’, warehousemen’s and mechanics’ Liens, statutory landlords’ Liens, and other similar Liens arising in the ordinary course of the Company’s business, and which (x) do not individually or in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of the Company and its consolidated Subsidiaries or (y) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing for the foreseeable future the forfeiture or sale of the property or asset subject to such Lien, and (c) Liens incurred in connection with Permitted Indebtedness under clauses (a) and (b) thereunder, and (d) Liens incurred in connection with Permitted Indebtedness thereunder, provided that such Liens are not secured by assets of the Company or its Subsidiaries other than the assets so acquired or leased.
Purchase Agreement ” means the Securities Purchase Agreement, dated as of May 11, 2016 among the Company and the original Holders, as amended, modified or supplemented from time to time in accordance with its terms.
Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Share Delivery Date ” shall have the meaning set forth in Section 4(c)(ii) .

Successor Entity ” shall have the meaning set forth in Section 5(e) .

Trading Day ” means a day on which the principal Trading Market is open for trading.

Trading Market ” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, or any market of the OTC Markets, Inc. (or any successors to any of the foregoing).

VWAP ” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b)  if the Common Stock is not listed on a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then  quoted for trading on the OTCQB or OTCQX and if prices for the Common Stock are then reported by the OTC Pink marketplace published by OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Notes then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.

Section 2 .            Interest;   Amortization Payments .

(a)            Interest . Interest shall accrue to the Holder on the aggregate unconverted and then outstanding principal amount of this Note at the rate of ten percent (10%) per annum, calculated on the basis of a 360-day year and shall accrue daily commencing on the Issuance Date until payment in full of the outstanding principal (or conversion to the extent applicable), together with all accrued and unpaid interest, liquidated damages and
5


other amounts which may become due hereunder, has been made. Following an Event of Default, regardless of whether such Event of Default has been cured or remains ongoing, interest shall accrue at the lesser of (i) the rate of 24% per annum, or (ii) the maximum amount permitted by law (the lesser of clause (i) or (ii), the “ Default Interest Rate ”).

(b)            Security . The obligations of the Company under this Note are secured by the terms of the Security Agreement and the Pledge Agreement.

(c)            Payment in Cash . All payments due hereunder shall be made in cash on the Maturity Date.

(d)            Prepayment .  The Notes may be prepaid at any time at an amount equal to (i) 120% of outstanding principal and accrued and unpaid interest during the period from the Issuance Date through the 90 th day following the Issuance Date, and (ii) 130% of outstanding principal and accrued and unpaid interest during the period from the 91 st day following the Issuance Date through and including the Maturity Date. In order to prepay the Note, the Company shall provide 10 days’ prior written notice to the Holder, during which time the Holder may convert the Note in whole or in part at the Conversion Price.

Section 3 .            Registration of Transfers and Exchanges .

(a)            Different Denominations . This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations, as requested by the Holder surrendering the same.  No service charge will be payable for such registration of transfer or exchange.

(b)            Investor Representations . This Note has been issued subject to certain investment representations of the original Holder set forth in the Purchase Agreement and may be transferred or exchanged only in compliance with the Purchase Agreement and applicable federal and state securities laws and regulations.

(c)            Reliance on Note Register . Prior to due presentment for transfer to the Company of this Note, the Company and any agent of the Company may treat the Person in whose name this Note is duly registered on the Note Register as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.

Section 4.            Conversion .

(a)            Voluntary Conversion . After the Issuance Date and subject to prior prepayment until this Note is no longer outstanding, and provided that that the provisions of Rule 144 under the Securities Act so permit, this Note shall be convertible, in whole or in part, at any time, and from time to time, into shares of Common Stock at the option of the Holder (“ Conversion ”).  The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of which is attached hereto as Annex A (each, a “ Notice of Conversion ”), specifying therein the principal amount of this Note to be converted and the date on which such conversion shall be effected (such date, the “ Conversion Date ”).  If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder.  No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required.   To effect conversions hereunder, the Holder shall not be required to physically surrender this Note to the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest thereon, has been so converted. Conversions
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hereunder shall have the effect of lowering the outstanding principal amount of this Note in an amount equal to the applicable conversion.  The Holder and the Company shall maintain records showing the principal amount(s) converted in each conversion, the date of each conversion, and the Conversion Price in effect at the time of each conversion.  The Company may deliver an objection to any Notice of Conversion within one Business Day of delivery of such Notice of Conversion.  In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error. The Holder, and any assignee by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted principal amount of this Note may be less than the amount stated on the face hereof.

(b)            Conversion Price .  The “ Conversion Price ” in effect on any Conversion Date means, as of any Conversion Date or other date of determination, ____________ ($________) per share (subject to adjustment as provided herein), provided,   however , that if an Event of Default has occurred, regardless of whether such Event of Default has been cured or remains ongoing, the Note shall be convertible at price equal to the lower of; (i) $__________; or (ii) 60% of the lowest closing   price during the prior twenty (20) Trading Days of the Common Stock as reported on the OTCQB  or other principal Trading Market (the “ Default Conversion Price ”).

(c)            Mechanics of Conversion or Prepayment .

(i)            Conversion Shares Issuable Upon Conversion of Principal Amount .  The number of Conversion Shares issuable upon a conversion hereunder shall be determined by the quotient obtained by dividing (x) the outstanding principal amount of this Note and accrued interest and other amounts due and owing under this Note to be converted by (y) the Conversion Price in effect at the time of such conversion.

(ii)            Delivery of Certificate Upon Conversion . Not later than three (3) Trading Days after each Conversion Date (the “ Share Delivery Date ”), the Company shall deliver, or cause to be delivered, to the Holder any certificate or certificates required to be delivered by the Company under this Section 4(c) electronically through the Depository Trust Company or another established clearing corporation performing similar functions.

(iii)            Failure to Deliver Certificates .  If, in the case of any Notice of Conversion, such certificate or certificates are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time on or before its receipt of such certificate or certificates, to rescind such Conversion, in which event the Company shall promptly return to the Holder any original Note delivered to the Company and the Holder shall promptly return to the Company the Common Stock certificates issued to such Holder pursuant to the rescinded Conversion Notice.

(iv)            Obligation Absolute; Partial Liquidated Damages .  The Company’s obligations to issue and deliver the Conversion Shares upon conversion of this Note in accordance with the terms hereof is absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of such Conversion Shares; provided , however , that such delivery shall not operate as a waiver by the Company of any such action the Company may have against the Holder.  In the event the Holder of this Note shall elect to convert any or all
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of the outstanding principal amount hereof, the Company may not refuse conversion based on any claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion or prepayment of all or part of this Note shall have been sought and obtained, and the Company posts a surety bond for the benefit of the Holder in the amount of 150% of the outstanding principal amount of this Note, which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to the Holder to the extent it obtains judgment.  In the absence of such injunction, the Company shall issue Conversion Shares.  If the Company fails for any reason to deliver to the Holder such certificate or certificates pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of principal amount being converted, $10 per Trading Day (increasing to $20 per Trading Day on the fifth (5 th ) Trading Day after such Conversion Date) for each Trading Day after such Share Delivery Date until such certificates are delivered or Holder rescinds such conversion.  Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 7 hereof for the Company’s failure to deliver Conversion Shares within the period specified herein and the Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.  The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable Law.

(v)            Compensation for Buy-In on Failure to Timely Deliver Certificates Upon Conversion . In addition to any other rights available to the Holder, if the Company fails for any reason to deliver to the Holder such certificate or certificates by the Share Delivery Date pursuant to Section 4(c)(ii) , and if after such Share Delivery Date the Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Conversion Shares which the Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “ Buy-In ”), then the Company shall (A) pay in cash to the Holder (in addition to any other remedies available to or elected by the Holder) the amount, if any, by which (x) the Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of the Holder, either reissue (if surrendered) this Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued if the Company had timely complied with its delivery requirements under Section 4(c)(ii) .  For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Note with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Company shall be required to pay the Holder $1,000.  The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss.  Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock upon conversion of this Note as required pursuant to the terms hereof.

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(vi)            Reservation of Shares Issuable Upon Conversion . The Company covenants that it will reserve and keep available out of its authorized and unissued shares of Common Stock for the purpose of issuances upon conversion of this Note (and other purposes further detailed in the Purchase Agreement), free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other holders of the Notes), not less than the amount of shares designated in Section 4.9 of the Purchase Agreement.  The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.

(vii)            Fractional Shares . No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note.  As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share.

(viii)            Transfer Taxes and Expenses .  The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates, provided that, the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holder of this Note so converted and the Company shall not be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.  The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.

(ix)            Prepayment .  Upon the Company giving notice of prepayment in accordance with Section 2(d) , it shall within three Business Days deliver by Federal Express or other nationally recognized carrier, next business day delivery, a check for the principal and accrued interest (the “ Prepayment Amount ”), unless prior thereto it has received wire transfer instructions from the Holder within three Business Days of the giving of notice of prepayment in which case it shall wire transfer the Prepayment Amount in accordance with the instructions on the fourth Business Day after the giving of notice prepayment.

(d)           Holder’s Conversion Limitations .  The Company shall not effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder or any of the Holder’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).  For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes) beneficially owned by the Holder or any of its Affiliates.  Except as set forth in the preceding sentence, for purposes of this Section 4(d) , beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.  To the extent that the limitation contained in this Section 4(d) applies,
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the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of such determination.  In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.  For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding.  Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.  In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder.  The Holder, upon not less than 61 days’ prior notice to the Company, may increase the Beneficial Ownership Limitation provisions of this Section 4(d) solely with respect to the Holder’s Note.  Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company.  The Holder may also decrease the Beneficial Ownership Limitation provisions of this Section 4(d) solely with respect to the Holder’s Note at any time, which decrease shall be effective immediately upon delivery of notice to the Company.  The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note.
 
Section 5 .            Certain Adjustments .

(a)            Stock Dividends and Stock Splits .  If the Company, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon conversion of, or payment of interest on, the Notes or pursuant to any of the other Transaction Documents), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event.  Any adjustment made pursuant to this Section shall become effective immediately after the record
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date for the determination of shareholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

(b)            Subsequent Equity Sales   If, at any time,   f or so long as the Note or any amounts accrued and payable thereunder remain outstanding , the Company or any Subsidiary, as applicable, sells or grants any option to purchase or sells or grants any right to reprice, or otherwise disposes of or issues, any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock at an effective price per share that is lower than the Conversion Price then in effect (such lower price, the “ Base Conversion Price ” and each such issuance a “ Dilutive Issuance ”), then the Conversion Price shall be immediately reduced to equal the Base Conversion Price.  Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued.
If the price per share for which shares of Common Stock are sold, or may be issuable pursuant to any such Common Stock Equivalent, is less than the Conversion Price then in effect, or if, after any such issuance of Common Stock Equivalents, the price per share for which shares of Common Stock may be issuable thereafter is amended or adjusted, and such price as so amended shall be less than the Conversion Price in effect at the time of such amendment or adjustment, then the Conversion Price shall be adjusted upon each such issuance or amendment as provided in this Section 5(b) .  In case any Common Stock Equivalent is issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction, (x) the Common Stock Equivalents will be deemed to have been issued for the Option Value of such Common Stock Equivalents and (y) the other securities issued or sold in such integrated transaction shall be deemed to have been issued or sold for the difference of (I) the aggregate consideration received by the Company less any consideration paid or payable by the Company pursuant to the terms of such other securities of the Company, less (II) the Option Value.  If any shares of Common Stock or Common Stock Equivalents are issued or sold or deemed to have been issued or sold for cash, the amount of such consideration received by the Company will be deemed to be the net amount received by the Company therefor.  If any shares of Common Stock or Common Stock Equivalents are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company will be the VWAP of such public traded securities on the date of receipt.  If any shares of Common Stock or Common Stock Equivalents are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock or Common Stock Equivalents, as the case may be.
If any holder of Common Stock or Common Stock Equivalents outstanding on the Issuance Date or issued thereafter shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price then in effect, such issuance shall be deemed to have occurred for less than the Conversion Price on such date and such issuance shall be deemed to be a Dilutive Issuance.
If the Company enters into a Variable Rate Transaction despite the prohibition set forth in the Purchase Agreement, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible conversion price at which such securities may be converted or exercised under the terms of such Variable Rate Transaction.
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The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5(b) , indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “ Dilutive Issuance Notice ”).  For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5(b) , upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Conversion Shares based upon the Base Conversion Price on or after the date of such Dilutive Issuance, regardless of whether the Holder accurately refers to the Base Conversion Price in the Notice of Conversion.
The provisions of this Section 5(b) shall apply each time a Dilutive Issuance occurs after the Issuance Date for so long as the Note or any amounts accrued and payable thereunder remain outstanding, but any adjustment of the Conversion Price pursuant to this Section 5(b) shall be downward only.  Notwithstanding the foregoing, no adjustment will be made under this Section 5(b) in respect of an Exempt Issuance .
(c)            Subsequent Rights Offerings In addition to any adjustments pursuant to Section 5(a) above, if at any time the Company grants, issues or sells any Common Stock, Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “ Purchase Rights ”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights ( provided , however , to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).

(d)            Pro Rata Distributions . During such time as this Note is outstanding, if the Company shall declare or make any dividend or other distribution of its assets or rights or warrants to acquire its assets, or subscribe for or purchase any security other than Common Stock, to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “ Distribution ”), at any time after the issuance of this Note, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution ( provided , however , to the extent that the Holders’ right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation with respect to the Company or any other publicly-traded corporation subject to Section 13(d) of the Exchange Act, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of common stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
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Ownership Limitation with respect to the Company or any other publicly-traded corporation subject to Section 13(d) of the Exchange Act).

(e)            Fundamental Transaction . If, at any time while this Note is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “ Fundamental Transaction ”), then, upon any subsequent conversion of this Note, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation on the conversion of this Note), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “ Alternate Consideration ”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Note is convertible immediately prior to such Fundamental Transaction (without regard to any limitation on the conversion of this Note).  For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.  If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Note following such Fundamental Transaction.  Notwithstanding anything to the contrary, in the event of a Fundamental Transaction that is (1) an all cash transaction, (2) a “Rule 13e-3 transaction” as defined in Rule 13e-3 under the Exchange Act, or (3) a Fundamental Transaction involving a person or entity not traded on a national securities exchange or trading market (with such exchange or market including, without limitation, the Nasdaq Global Select Trading Market, the Nasdaq Global Market, or the Nasdaq Capital Market, The New York Stock Exchange, Inc.,  the NYSE MKT or the OTCQB), the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable concurrently with the consummation of the Fundamental Transaction, purchase this Note from the Holder by paying to the Holder the higher of (i) an amount of cash equal to the Black Scholes Value of the outstanding principal of this Note, accrued interest on this Note and all other amounts due and payable under this Note, on the date of the consummation of such Fundamental Transaction, or (ii) the product of (a) the number of Conversion Shares issuable upon full conversion of this Note (without regard to any limitation on conversion of this Note) and (b) the positive difference between the cash per share paid in such Fundamental Transaction minus the then in effect Conversion Price.  The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “ Successor Entity ”) to assume in
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writing all of the obligations of the Company under this Note and the other Transaction Documents (as defined in the Purchase Agreement) in accordance with the provisions of this Section 5(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the holder of this Note, deliver to the Holder in exchange for this Note a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Note which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Note (without regard to any limitations on the conversion of this Note) prior to such Fundamental Transaction, and with a conversion price which applies the Conversion Price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Note immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Note and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.  Notwithstanding anything in this Section 5(d) , an Exempt Issuance (as defined in the Purchase Agreement) shall not be deemed a Fundamental Transaction.
 
(f)            Calculations .  All calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be.  For purposes of this Section 5 , the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Company) issued and outstanding.

(g)            Notice to the Holder .

(i)            Adjustment to Conversion Price .  Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5 , the Company shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

(ii)            Notice to Allow Conversion by Holder .  If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of this Note, and shall cause to be delivered to the Holder at its last address as it shall appear upon the Note Register, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of
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which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice.  To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries (as determined in good faith by the Company), the Company or its successor shall simultaneously file such notice with the SEC pursuant to a Current Report on Form 8-K.  The Holder shall remain entitled to convert this Note during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.

Section 6 .            Negative Covenants . As long as any portion of this Note remains outstanding, unless the holders of 100% in principal amount of the then outstanding Notes shall have otherwise given prior written consent, the Company shall not, and shall not permit any of the Subsidiaries to, directly or indirectly:

(a)            other than Permitted Indebtedness, enter into, create, incur, assume, guarantee or suffer to exist any indebtedness for borrowed money of any kind, including, but not limited to, a guarantee, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom;

(b)            other than Permitted Liens, enter into, create, incur, assume or suffer to exist any Liens of any kind, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom;

(c)            amend its charter documents, including, without limitation, its certificate of incorporation and bylaws, in any manner that materially and adversely affects any rights of the Holder (provided, however, the consent of the Holders shall not be required in connection with the first clause of the first sentence of Section 4(c)(vi) above);

(d)           repay, repurchase or offer to repay, repurchase or otherwise acquire more than a de minimis number of shares of its Common Stock or Common Stock Equivalents other than as to the Conversion Shares as permitted or required under the Transaction Documents;

(e)            repay, repurchase or offer to repay, repurchase or otherwise acquire any Indebtedness, other than the Notes if on a pro-rata basis, other than regularly scheduled principal and interest payments as such terms are in effect as of the Issuance Date, provided that such payments shall not be permitted if, at such time, or after giving effect to such payment, any Event of Default shall exist or occur;

(f)            pay cash dividends or distributions on any equity securities of the Company;

(g)            enter into any transaction with any Affiliate of the Company which would be required to be disclosed in any public filing with the SEC assuming that the Company is subject to the Securities Act or the Exchange Act, unless such transaction is made on an arm’s-length basis and expressly approved by a majority of the disinterested directors of the Company (even if less than a quorum otherwise required for board approval);
15

 
(h)            except in connection with an Exempt Issuance, issue any equity securities of the Company other than pursuant to the provisions of the Purchase Agreement, unless (A) such securities are issued at a purchase price (or applicable equivalent) in excess of $_______ per share of Common Stock (subject to adjustment for stock splits, stock dividends, combinations and similar events), (B) the proceeds from the sale of such securities are first applied to the amounts outstanding and payable under the Notes issued pursuant to the Purchase Agreement and the satisfaction of all obligations related to the Transaction Documents, and (C) any registration statements filed by the Company with the SEC must cover the resale of the Commitment Shares; or

(i)            enter into any agreement with respect to any of the foregoing .

Section 7 .            Events of Default .

(a)            Event of Default ” means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body):

(i)            any default in the payment of (A) the principal amount of any Note or (B) interest, late fees, liquidated damages and other amounts owing to a Holder on any Note, as and when the same shall become due and payable (whether on a Conversion Date or the Maturity Date or by acceleration or otherwise);

(ii)            the Company shall fail to observe or perform any other covenant or agreement contained in the Notes (other than a breach by the Company of its obligations to deliver shares of Common Stock to the Holder upon conversion, which breach is addressed in clause (xi) below) or any Transaction Document which failure is not cured, if possible to cure, within the earlier to occur of (A) five Trading Days after notice of such failure sent by the Holder or by any other Holde r to the Company and (B) 10 Trading Days after the Company has become aware of such failure;

(iii)            a default or event of default (subject to any grace or cure period provided in the applicable agreement, document or instrument) shall occur under (A) any of the Transaction Documents or (B) any other material agreement, lease, document or instrument to which the Company or any Subsidiary is obligated (and not covered by clause (vi) or (xii) below);

(iv)            any representation or warranty made in this Note, any other Transaction Document, any written statement pursuant hereto or thereto or any other report, financial statement or certificate made or delivered to the Holder or any other Holder shall be untrue or incorrect in any material respect as of the date when made or deemed made;

(v)            the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X)  shall be subject to a Bankruptcy Event;

(vi)            the Company or any Subsidiary shall default on any of its obligations under any mortgage, credit agreement or other facility, indenture agreement, factoring agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness for borrowed money or money due under any long term leasing or factoring arrangement that (a) involves an obligation greater than $5,000, whether such indebtedness now exists or shall hereafter be created, and (b)
16


results in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise become due and payable and such default is not cured within five Trading Days;

(vii)            the Common Stock shall not be eligible for listing or quotation for trading on any Trading Market and shall not be eligible to resume listing or quotation for trading thereon within five Trading Days unless a Force Majure event has occurred;

(viii)            the Company shall be a party to any Change of Control Transaction or shall agree to sell or dispose of all or in excess of 50% of its assets in one transaction or a series of related transactions (whether or not such sale would constitute a Change of Control Transaction);

(ix)            from and after the Issuance Date, the Company fails to have  authorized and reserved the amount of shares designated in Section 4.9 of the Purchase Agreement ( without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) ;

(x)            the Company shall fail for any reason, except if caused by the action or inaction of the Holder to deliver certificates to a Holder prior to the third Trading Day after a Conversion Date pursuant to Section 4(c) or the Company shall provide at any time notice to the Holder, including by way of public announcement, of the Company’s intention to not honor requests for conversions of any Notes in accordance with the terms hereof; or

(xi)            any monetary judgment, writ or similar final process shall be entered or filed against the Company, any Subsidiary or any of their respective property or other assets for more than $25,000, and such judgment, writ or similar final process shall remain unvacated, unbonded or unstayed for a period of 10 calendar days.

(b)            Remedies Upon Event of Default . If any Event of Default occurs and is not cured within 10 days after the giving of written notice, the outstanding principal amount of this Note, plus accrued but unpaid interest, liquidated damages and other amounts owing in respect thereof through the date of acceleration, shall become, at the Holder’s election, immediately due and payable in cash at the Mandatory Default Amount.  Upon the payment in full of the Mandatory Default Amount, the Holder shall promptly surrender this Note to or as directed by the Company.  In connection with such acceleration described herein, the Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable Law.  Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to this Section 7(b) .  No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.

(c)            Interest Rate Upon Event of Default .  Commencing on the occurrence of any Event of Default and until such Event of Default is cured, this Note shall accrue interest at an interest rate equal to the Default Interest Rate.

(d)            Conversion Price Upon Event of Default .  Commencing on the occurrence of any Event of Default and until such Event of Default is cured, this Note shall be convertible at the Default Conversion Price.

17


Section 8 .            Miscellaneous .

(a)            No Rights as Stockholder Until Conversion .  This Note does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the conversion hereof other than as explicitly set forth in Section 5 .

(b)            Notices .  All notices, offers, acceptance and any other acts under this Agreement (except payment) shall be in writing, and shall be sufficiently given if delivered to the addressees in person, by Federal Express or similar receipted next business day delivery, as follows:

If to the Company:  
Sport Endurance, Inc.
222 Broadway, 19th Floor
New York, New York 10038
Attention: David Lelong, President
 
 
with a copy to (that shall not constitute notice):  
Nason Yeager Gerson White & Lioce, P.A.
3001 PGA Boulevard, Suite 305
Palm Beach Gardens, FL 33410
Attention: Michael D. Harris, Esq.
Email: mharris@nasonyeager.com
   
If to Holder:  
_____________________
________________________
________________________

or to such other address as any of them, by notice to the other may designate from time to time. Time shall be counted to, or from, as the case may be, the date of delivery.

(c)            Absolute Obligation . Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, liquidated damages and accrued interest and late fees, as applicable, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed.  This Note is a direct debt obligation of the Company.  This Note ranks pari   passu with all other Notes now or hereafter issued under the Purchase Agreement.

(d)            Lost or Mutilated Note .  If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company.

(e)            Exclusive Jurisdiction; Governing Law .  All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflict of laws thereof.  Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall only be commenced in the state and federal courts sitting in New York County, New York (the “ New York Courts ”).  Each party hereto
18


hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding.  Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable Law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable Law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Note or the transactions contemplated hereby.

(f)            Waiver .  Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Note.  The failure of the Company or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion.  Any waiver by the Company or the Holder must be in writing.

(g)            Severability .  If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances.  If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of or interest on this Note as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Note, and the Company (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such Law, and covenants that it will not, by resort to any such Law, hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though no such law has been enacted.

(h)            Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief.   The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note.  The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach would be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any such breach or any such threatened breach, without the necessity of
19


showing economic loss and without any bond or other security being required. The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note.

(i)            Next Business Day .  Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.

(j)            Headings .  The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit or affect any of the provisions hereof.


** Signature Pages Follow **
 
20


IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by a duly authorized officer as of the Issuance Date.


SPORT ENDURANCE, INC.
 
 
 
By:__________________________________________
Name: _________________
Title:
 
 

 
21

ANNEX A
NOTICE OF CONVERSION

The undersigned hereby elects to convert principal under the 10% Senior Secured Convertible Promissory Note due ______________, 2017 of ____________________, a Nevada corporation (the “Company”), into shares of common stock (the “Common Stock”), of the Company according to the conditions hereof, as of the date written below.  If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance therewith.  No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.

By the delivery of this Notice of Conversion the undersigned represents and warrants to the Company that its ownership of the Common Stock does not exceed the amounts specified under Section 4 of this Note, as determined in accordance with Section 13(d) of the Exchange Act.

The undersigned agrees to comply with the prospectus delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid shares of Common Stock.

Conversion calculations:
Date to Effect Conversion:

Principal Amount of Note to be Converted:

Payment of Interest in Common Stock __ yes  __ no
If yes, $_____ of Interest Accrued on Account of Conversion at Issue.

Number of shares of Common Stock to be issued:


Signature:

Name:


DWAC Instructions:

Broker No:                                    
Account No:                                 
22


Schedule 1
CONVERSION SCHEDULE

The 10% Senior Secured Convertible Promissory Note due on _______________, 2017 in the original principal amount of $______________ is issued by Sport Endurance, Inc., a Nevada corporation.  This Conversion Schedule reflects conversions made under Section 4 of the above referenced Note.
 
Dated:

 
Date of Conversion
(or for first entry, Issuance Date)
 
Amount of Converted Principal
 
Aggregate Principal Amount Remaining Subsequent to Conversion
(or original Principal Amount)
 
Applicable Conversion Price
 
Company Attest
 
 
 
     
 
 
 
     
 
 
 
     
 
 
 
     
 
 
 
     
 
 
 
     
 
 
 
     
 
 
 
     
 
 
 
     
 


23

Exhibit 10.3
 
Sport Endurance, Inc.
222 Broadway, 19th Floor
New York, NY 10038


_________________, 2017



______________________
______________________
______________________
______________________
 

Re:            Sport Endurance, Inc. / Forbearance on Senior Secured Promissory Notes

Dear Sirs:

This letter agreement (the “Agreement”) acknowledges that in exchange for Sport Endurance, Inc. (the “Company”), paying you $___________ paid toward the sums due under the 10% Senior Secured Promissory Notes executed and delivered by the Company to __________________ (the “Senior Note”), _____________ agrees that the due date under the Senior Note shall be extended to 5:00 pm on ________________ (the “Due Date”).

Without modifying or amending the terms of the Senior Notes, the Security Agreement or the Purchase Agreement , __________   agrees to forebear and not to seek collection against the Company of any amounts due under the Senior Note,   Security Agreement or Purchase Agreement through and until the Due Date. The period of forbearance provided in this Agreement shall terminate on the Due Date if the amount due under the Senior Note is not paid within that period.

Except as modified by this Agreement, the Company hereby ratifies and confirms the terms and provisions of the Senior Note, the Security Agreement and the Purchase Agreement. The Senior Notes , Security Agreement, Purchase Agreement and all other agreements, instruments and other documents executed in connection with the obligations of the Company under the Senior Note are legal, valid, binding and enforceable against the Company in accordance with their terms.

Any number of counterparts of this Agreement may be signed and delivered, each of which shall be considered an original and all of which, together, shall constitute one and the same instrument.

Please sign below evidencing your agreement to be bound by this Agreement and return to us.




Very truly yours,


_________________________
_________________
President and CEO

We hereby agree to the foregoing:

___________________


By:                                                           
________________,


 
 
 
 
Exhibit 10.4

PROMISSORY NOTE

$75,000
April 6, 2017

FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order of David Lelong (the "Holder") the sum of Seventy-Five Thousand Dollars ($75,000).  This Note shall bear interest at the rate of two percent (2%) per annum.  Said principal and interest is due and payable upon demand of the Holder.  Interest shall accrue on the sum of Seventy-Five Thousand Dollars ($75,000) for the period of April 4, 2017 through the date of repayment.

Payments shall be made of lawful money of the United States at such place designated in writing by the Holder at the time of demand.

All makers and endorsers now or hereafter becoming parties hereto jointly and severally waive demand, presentment, notice of non-payment in protest and, if this Note becomes in default and is placed into the hands of an attorney for collection, to pay attorneys' fees and all other costs for making such collection, provided the Holder is the prevailing party.

This Note may not be changed or terminated orally, but only with an agreement in writing, signed by the parties against whom enforcement of any waiver, change, modification or discharge is sought, with such agreement being effective and binding only upon the parties thereto.

Each of the Maker and the Holder hereby waives any right to a trial by jury in any action or proceeding to enforce or defend any rights under this note and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith or arising from any relationship existing in connection with any of the foregoing, and agrees that any such action or proceeding shall be tried before a court and not before a jury.

All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflict of laws thereof.  Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the loan evidenced by this Note (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall only be commenced in the state and federal courts sitting in New York County, New York (the “ New York Courts ”).  Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding.  Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and
1

agrees that such service shall constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law.

SPORT ENDURANCE, INC.


By:                                                  
     David Lelong
     Chief Executive Officer



2
 
 
Exhibit 31.1

CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER

I, David Lelong, certify that:

1.            I have reviewed this quarterly report on Form 10-Q of Sport Endurance, Inc.;

2.            Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.            Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.            The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a)            Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)            Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)            Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)            Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.            The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a)            All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b)            Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: July 14,  2017

/s/  David Lelong
David Lelong
Chief Executive Officer
(Principal Executive Officer)
 
 
 
 

 
 
Exhibit 31.2

CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER

I, David Lelong, certify that:

1.            I have reviewed this quarterly report on Form 10-Q of Sport Endurance, Inc.;

2.            Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.            Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.            The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a)            Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)            Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)            Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)            Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.            The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a)            All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b)            Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: July 14, 2017

/s/  David Lelong
David Lelong
Principal Financial Officer

 
 
 

 
 

Exhibit 32.1

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
 AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002



In connection with the quarterly report of Sport Endurance, Inc. (the “Company”) on Form 10-Q for the quarter ended May 31, 2017, as filed with the Securities and Exchange Commission on the date hereof, I, David Lelong, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

1.
The annual report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and

2.
The information contained in the annual report fairly presents, in all material respects, the financial condition and results of operations of the Company.


/s/  David Lelong
David Lelong
Chief Executive Officer and Principal Financial Officer
(Principal Executive Officer)
Dated: July 14, 2017