COMMON STOCK PURCHASE WARRANT
Exhibit
99.2 Form of Warrant
THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT
AND
THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO BRAVO! BRANDS INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
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Right
to Purchase 3,125,000 shares of Common Stock of Bravo! Brands Inc.
(subject to adjustment as provided
herein)
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COMMON
STOCK PURCHASE WARRANT
|
No.
2007 - 7
|
Issue
Date: April 27, 2007
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BRAVO!
BRANDS INC. (FORMERLY
KNOWN AS BRAVO! FOODS INTERNATIONAL, CORP.),
a
corporation organized under the laws of the State of Delaware (the “Company”),
hereby certifies that, for value received,*************************, or its
permitted assigns (the “Holder”), is entitled, subject to the terms set forth
below, to purchase from the Company at any time after the Issue Date until
5:00
p.m., E.S.T on the fifth anniversary of the Closing Date as described in
the
Subscription Agreement (the
“Expiration Date”), up to 3,125,000 fully paid and nonassessable shares of the
common stock of the Company (the “Common Stock”), $0.001 par value per share at
a per share purchase price of $0.04. The aforedescribed purchase price per
share, as adjusted from time to time as herein provided, is referred to herein
as the "Purchase Price." The number and character of such shares of Common
Stock
and the Purchase Price are subject to adjustment as provided herein. The
Company
may reduce the Purchase Price without the consent of the Holder. Capitalized
terms used and not otherwise defined herein shall have the meanings set forth
in
that certain Subscription Agreement (the “Subscription Agreement”), dated as of
April 27, 2007, entered into by the Company and the Holder.
As
used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term
“Company” shall include Bravo! Brands Inc. and any corporation which shall
succeed or assume the obligations of Bravo! Brands Inc. hereunder.
(b) The
term
“Common Stock” includes (a) the Company's Common Stock, $0.001 par value
per share, as authorized on the date of the Subscription Agreement.
(c) The
term
“Excepted Issuances” shall mean any proposed issuance by the Company of its
Common Stock or other securities or debt obligations that are convertible
into
Common Stock in connection with (i) any stock options or compensation plans
of
the Company, (ii) as full or partial consideration in connection with merger,
consolidation or purchase of substantially all of the securities or assets
of
any corporation or other entity, (iii) strategic transactions such as joint
ventures or (iv) as has been described in the Reports or Other Written
Information filed with the Securities and Exchange Commission (the “SEC”) or
delivered to the Holder prior to the Closing Date.
(d) The
term
“Other Securities” refers to any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which
the
holder of the Warrant at any time shall be entitled to receive, or shall
have
received, on the exercise of the Warrant, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant
to
Section 3 or otherwise.
1
(e) The
term
“Other Written Information” shall mean such other information received from the
Company by the Holder concerning the Company’s operations, financial condition
and other matters as the Holder has requested in writing.
(f) The
term “Reports” shall mean the
Company’s Form 10-KSB for the year ended December 31, 2005 as filed with the
SEC, together with all subsequently filed Forms 10-QSB, 8-K, and filings
made
with the SEC available at the XXXXX website.
(g) The
term “Warrant Shares” shall mean the Common Stock issuable upon exercise of this
Warrant.
1. Exercise
of Warrant.
1.1. Number
of Shares Issuable upon Exercise.
From
and after the Issue Date through and including the Expiration Date, the Holder
hereof shall be entitled to receive, upon exercise of this Warrant in whole
in
accordance with the terms of subsection 1.2 or upon exercise of this
Warrant in part in accordance with subsection 1.3, shares of Common Stock
of the Company, subject to adjustment pursuant to Sections 2 and
3.
1.2. Full
Exercise.
This Warrant may be exercised in full by the Holder hereof by delivery of
an
original or facsimile copy of the form of subscription attached as
Exhibit A hereto (the “Subscription Form”) duly executed by such Holder and
delivery of payment, in cash, wire transfer or by certified or official bank
check payable to the order of the Company, in the amount obtained by multiplying
the number of shares of Common Stock for which this Warrant is then exercisable
by the Purchase Price then in effect. The original Warrant is not required
to be
surrendered to the Company until it has been fully exercised.
1.3. Partial
Exercise.
This
Warrant may be exercised in part (but not for a fractional share) by surrender
of this Warrant in the manner and at the place provided in subsection 1.2
except that the amount payable by the Holder on such partial exercise shall
be
the amount obtained by multiplying (a) the number of whole shares of Common
Stock designated by the Holder in the Subscription Form by (b) the Purchase
Price then in effect. On any such partial exercise provided the Holder has
surrendered the original Warrant, the Company, at its expense, will forthwith
issue and deliver to or upon the order of the Holder hereof a new Warrant
of
like tenor, in the name of the Holder hereof or as such Holder (upon payment
by
such Holder of any applicable transfer taxes) may request, the whole number
of
shares of Common Stock for which such Warrant may still be exercised for
the
balance of.
1.4. Company
Acknowledgment.
The
Company will, at the time of the exercise of the Warrant, upon the request
of
the Holder hereof acknowledge in writing its continuing obligation to afford
to
such Holder any rights to which such Holder shall continue to be entitled
after
such exercise in accordance with the provisions of this Warrant. If the Holder
shall fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such Holder any such
rights.
1.5. Trustee
for Warrant Holders.
In the
event that a bank or trust company shall have been appointed as trustee for
the
Holder of the Warrants pursuant to Subsection 2.2, such bank or trust
company shall have all the powers and duties of a warrant agent (as hereinafter
described) and shall accept, in its own name for the account of the Company
or
such successor person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor, as the case may be, on exercise of this
Warrant pursuant to this Section 1.
1.6 Delivery
of Stock Certificates, etc. on Exercise.
The
Company agrees that the shares of Common Stock purchased upon exercise of
this
Warrant shall be deemed to be issued to the Holder hereof as the record owner
of
such shares as of the close of business on the date on which payment shall
have
been made for such Warrant Shares as aforesaid. As soon as practicable after
the
exercise of this Warrant in full or in part, and in any event within five
(5)
days thereafter (the
“Warrant Share Delivery Date”),
the
Company at its expense (including the payment by it of any applicable issue
taxes) will cause to be issued in the name of and delivered to the Holder
hereof, or as such Holder (upon payment by such Holder of any applicable
transfer taxes) may direct in compliance with applicable securities laws,
a
certificate or certificates for the number of duly and validly issued, fully
paid and nonassessable shares of Common Stock (or Other Securities) to which
such Holder shall be entitled on such exercise, plus, in lieu of any fractional
share to which such Holder would otherwise be entitled, cash equal to such
fraction multiplied by the then Fair Market Value of one full share of Common
Stock, together with any other stock or other securities and property (including
cash, where applicable) to which such Holder is entitled upon such exercise
pursuant to Section 1 or otherwise.
2
1.7 Buy-In.
In addition to any other rights available to the Holder, if the Company fails
to
deliver to a Holder the Warrant Shares as required pursuant to this Warrant,
within seven (7) business days after the Warrant Share Delivery Date and
the
Holder or a broker on the Holder’s behalf, purchases (in an open market
transaction or otherwise) shares of common stock to deliver in satisfaction
of a
sale by such Holder of the Warrant Shares which the Holder was entitled to
receive from the Company (a "Buy-In"),
then the Company shall pay in cash to the Holder (in addition to any remedies
available to or elected by the Holder) the amount by which (A) the Holder's
total purchase price (including brokerage commissions, if any) for the shares
of
common stock so purchased exceeds (B) the aggregate Purchase Price of the
Warrant Shares
required to have been delivered together
with interest thereon at a rate of 15% per annum, accruing until such amount
and
any accrued interest thereon is paid in full (which amount shall be paid
as
liquidated damages and not as a penalty). For
example, if a Holder purchases shares of Common Stock having a total purchase
price of $11,000 to cover a Buy-In with respect to $10,000 of Purchase Price
of
Warrant Shares to have been received upon exercise of this Warrant, the Company
shall be required to pay the Holder $1,000,
plus interest. The
Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In.
2. Adjustment
for Reorganization, Consolidation, Merger, etc.
2.1. Reorganization,
Consolidation, Merger, etc.
In case
at any time or from time to time, the Company shall (a) effect a
reorganization, (b) consolidate with or merge into any other person or
(c) transfer all or substantially all of its properties or assets to any
other person under any plan or arrangement contemplating the dissolution
of the
Company, then, in each such case, as a condition to the consummation of such
a
transaction, proper and adequate provision shall be made by the Company whereby
the Holder of this Warrant, on the exercise hereof as provided in
Section 1, at any time after the consummation of such reorganization,
consolidation or merger or the effective date of such dissolution, as the
case
may be, shall receive, in lieu of the Common Stock (or Other Securities)
issuable on such exercise prior to such consummation or such effective date,
the
stock and other securities and property (including cash) to which such Holder
would have been entitled upon such consummation or in connection with such
dissolution, as the case may be, if such Holder had so exercised this Warrant,
immediately prior thereto, all subject to further adjustment thereafter as
provided in Section 3.
2.2. Dissolution.
In the
event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock
and
other securities and property (including cash, where applicable) receivable
by
the Holder of the Warrants after the effective date of such dissolution pursuant
to this Section 2 to a bank or trust company (a "Trustee") having its
principal office in New York, NY, as trustee for the Holder of the
Warrants.
2.3. Continuation
of Terms.
Upon
any reorganization, consolidation, merger or transfer (and any dissolution
following any transfer) referred to in this Section 2, this Warrant shall
continue in full force and effect and the terms hereof shall be applicable
to
the Other Securities and property receivable on the exercise of this Warrant
after the consummation of such reorganization, consolidation or merger or
the
effective date of dissolution following any such transfer, as the case may
be,
and shall be binding upon the issuer of any Other Securities, including,
in the
case of any such transfer, the person acquiring all or substantially all
of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 3. In
the event this Warrant does not continue in full force and effect after the
consummation of the transaction described in this Section 2 then only in
such event will the Company's securities and property (including cash, where
applicable) receivable by the Holder of the Warrants be delivered to the
Trustee
as contemplated by Section 2.2.
3
2.4 Share
Issuance.
Until the Expiration Date, if the Company shall issue any Common Stock except
for the Excepted Issuances, prior to the complete exercise of this Warrant
for a
consideration less than the Purchase Price that would be in effect at the
time
of such issue, then, and thereafter successively upon each such issue, the
Purchase Price shall be reduced to such other lower price for then outstanding
Warrants. For purposes of this adjustment, the issuance of any security or
debt
instrument of the Company carrying the right to convert such security or
debt
instrument into Common Stock or of any warrant, right or option to purchase
Common Stock shall result in an adjustment to the Purchase Price upon the
issuance of the above-described security, debt instrument, warrant, right,
or
option if such issuance is at a price lower than the Purchase Price in effect
upon such issuance and again at any time upon any subsequent issuances of
shares
of Common Stock upon exercise of such conversion or purchase rights if such
issuance is at a price lower than the Purchase Price in effect upon such
issuance. The reduction of the Purchase Price described in this Section 2.4
is
subject to the provisions of, and in addition to the other rights of the
Holder
described in, the Subscription Agreement.
3. Extraordinary
Events Regarding Common Stock.
In the
event that the Company shall (a) issue additional shares of the Common
Stock as a dividend or other distribution on outstanding Common Stock,
(b) subdivide its outstanding shares of Common Stock, or (c) combine
its outstanding shares of the Common Stock into a smaller number of shares
of
the Common Stock, then, in each such event, the Purchase Price shall,
simultaneously with the happening of such event, be adjusted by multiplying
the
then Purchase Price by a fraction, the numerator of which shall be the number
of
shares of Common Stock outstanding immediately prior to such event and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately after such event, and the product so obtained shall thereafter
be
the Purchase Price then in effect. The Purchase Price, as so adjusted, shall
be
readjusted in the same manner upon the happening of any successive event
or
events described herein in this Section 3. The number of shares of Common
Stock that the Holder of this Warrant shall thereafter, on the exercise hereof
as provided in Section 1, be entitled to receive shall be adjusted to a
number determined by multiplying the number of shares of Common Stock that
would
otherwise (but for the provisions of this Section 4) be issuable on such
exercise by a fraction of which (a) the numerator is the Purchase Price
that would otherwise (but for the provisions of this Section 4) be in
effect, and (b) the denominator is the Purchase Price in effect on the date
of such exercise.
4. Certificate
as to Adjustments.
In each
case of any adjustment or readjustment in the shares of Common Stock (or
Other
Securities) issuable on the exercise of the Warrants, the Company at its
expense
will promptly cause its Chief Financial Officer or other appropriate designee
to
compute such adjustment or readjustment in accordance with the terms of the
Warrant and prepare a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment
is
based, including a statement of (a) the consideration received or
receivable by the Company for any additional shares of Common Stock (or Other
Securities) issued or sold or deemed to have been issued or sold, (b) the
number of shares of Common Stock (or Other Securities) outstanding or deemed
to
be outstanding, and (c) the Purchase Price and the number of shares of
Common Stock to be received upon exercise of this Warrant, in effect immediately
prior to such adjustment or readjustment and as adjusted or readjusted as
provided in this Warrant. The Company will forthwith mail a copy of each
such
certificate to the Holder of the Warrant and any Warrant Agent of the Company
(appointed pursuant to Section 9 hereof).
4
5. Reservation
of Stock, etc. Issuable on Exercise of Warrant; Financial
Statements.
The
Company will at all times reserve and keep available, solely for issuance
and
delivery on the exercise of the Warrants, all shares of Common Stock (or
Other
Securities) from time to time issuable on the exercise of the Warrant. This
Warrant entitles the Holder hereof to receive copies of all financial and
other
information distributed or required to be distributed to the holders of the
Company's Common Stock.
6. Assignment;
Exchange of Warrant.
Subject
to compliance with applicable securities laws, this Warrant, and the rights
evidenced hereby, may be transferred by any registered holder hereof (a
"Transferor"). On the surrender for exchange of this Warrant, with the
Transferor's endorsement in the form of Exhibit B attached hereto (the
“Transferor Endorsement Form") and together with an opinion of counsel
reasonably satisfactory to the Company that the transfer of this Warrant
will be
in compliance with applicable securities laws, the Company will issue and
deliver to or on the order of the Transferor thereof a new Warrant or Warrants
of like tenor, in the name of the Transferor and/or the transferee(s) specified
in such Transferor Endorsement Form (each a "Transferee"), calling in the
aggregate on the face or faces thereof for the number of shares of Common
Stock
called for on the face or faces of the Warrant so surrendered by the
Transferor.
7. Replacement
of Warrant.
On
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction of this Warrant, on delivery of an indemnity agreement
or
security reasonably satisfactory in form and amount to the Company or, in
the
case of any such mutilation, on surrender and cancellation of this Warrant,
the
Company at its expense, twice only, will execute and deliver, in lieu thereof,
a
new Warrant of like tenor.
8. Maximum
Exercise.
The
Holder shall not be entitled to exercise this Warrant on an exercise date
in
connection with that number of Common Stock which would be in excess of the
sum
of (i) the number of Common Stock beneficially owned by the Holder and its
affiliates on an exercise date or Call Date, and (ii) the number of Common
Stock issuable upon the exercise of this Warrant with respect to which the
determination of this limitation is being made on an exercise date or Call
Date,
which would result in beneficial ownership by the Holder and its affiliates
of
more than 4.99% of the outstanding Common Stock on such date. For the purposes
of the immediately preceding sentence, beneficial ownership shall be determined
in accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended, and Regulation 13d-3 thereunder. Subject to the foregoing,
the
Holder shall not be limited to aggregate exercises which would result in
the
issuance of more than 4.99%. The restriction described in this
paragraph may be waived, in whole or in part, upon sixty-one (61) days
prior notice from the Holder to the Company to increase such percentage to
up to
9.99%. The Holder may allocate which of the equity of the Company deemed
beneficially owned by the Holder shall be included in the 4.99% amount described
above and which shall be allocated to the excess above 4.99%.
9. Warrant
Agent.
The
Company may, by written notice to the Holder of the Warrant, appoint an agent
(a
“Warrant Agent”) for the purpose of issuing Common Stock (or Other Securities)
on the exercise of this Warrant pursuant to Section 1, exchanging this
Warrant pursuant to Section 6, and replacing this Warrant pursuant to
Section 7, or any of the foregoing, and thereafter any such issuance,
exchange or replacement, as the case may be, shall be made at such office
by
such Warrant Agent.
10. Transfer
on the Company's Books.
Until
this Warrant is transferred on the books of the Company, the Company may
treat
the registered holder hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
5
11. Notices.
Any
notices, consents, waivers or other communications required or permitted
to be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending
party);
or (iii) one Business Day after deposit with an overnight courier service,
in
each case properly addressed to the party to receive the same. The addresses
and
facsimile numbers for such communications shall be: (i) if to the Company,
to:
Bravo! Brands, Inc., 00000 X.X. Xxxxxxx 0, Xxxxx 000, Xxxxx Xxxx Xxxxx, Xxxxxxx
00000, Attn: Xxx X. Xxxxxx, Xx., Esq., fascmile: (000) 000-0000, with an
additional copy to: Xxxxx & XxXxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000, Attn: Xxxxxx X. Xxxxxxxx, Esq., fascmile: (000) 000-0000,
and
(ii) if to the Holder, to: Salomom and Xxxx Xxxxxx Tenants in the entirety
,
00000 Xxxxxxx Xxxxxxx, Xxxxx Xxxx Xxxxx, XX 00000.
12. Miscellaneous.
This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought. This Warrant
is
governed by and construed in accordance with the laws of the State of New
York
without regard to principles of conflicts of laws. Any action brought concerning
the transactions contemplated by this Warrant shall be brought exclusively
in
the state courts of New York located in New York City or in the Federal District
Court for the Southern District of New York. The
parties and the individuals executing this Warrant and other agreements referred
to herein or delivered in connection herewith on behalf of the Company agree
to
submit to the jurisdiction of such courts and waive trial by
jury.
The
prevailing party shall be entitled to recover from the other party its
reasonable attorney fees and costs. In the event that any provision of this
Warrant or any other agreement delivered in connection herewith is invalid
or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith
and
shall be deemed modified to conform with such statute or rule of law. Any
such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any agreement.
The headings in this Warrant are for purposes of reference only, and shall
not
limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity
or
enforceability of any other provision.
6
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
| BRAVO! BRANDS INC. | ||
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| By: | ||
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Name:
Title:
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7
Exhibit A
FORM
OF
SUBSCRIPTION
(to
be
signed only on exercise of Warrant)
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable
box):
___ ________
shares of the Common Stock covered by such Warrant; or
The
undersigned herewith makes payment of the full purchase price for such shares
at
the price per share provided for in such Warrant, which is $___________.
Such
payment takes the form of (check applicable box or boxes):
___
$__________
in lawful money of the United States; and/or
___
the
cancellation of such portion of the attached Warrant as is exercisable for
a
total of _______ shares of Common Stock (using a Fair Market Value of $_______
per share for purposes of this calculation); and/or
The
undersigned requests that the certificates for such shares be issued in the name
of, and delivered to
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whose
address is
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.
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The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act of
1933,
as amended (the "Securities Act"), or pursuant to an exemption from registration
under the Securities Act.
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Dated:___________________
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(Signature
must conform to name of holder as specified on the face of the
Warrant)
(Address)
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8
Exhibit B
FORM
OF
TRANSFEROR ENDORSEMENT
(To
be
signed only on transfer of Warrant)
For
value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading "Transferees" the right represented
by
the within Warrant to purchase the percentage and number of shares of Common
Stock of BRAVO! BRANDS INC. to which the within Warrant relates specified
under
the headings "Percentage Transferred" and "Number Transferred," respectively,
opposite the name(s) of such person(s) and appoints each such person Attorney
to
transfer its respective right on the books of BRAVO! BRANDS INC. with full
power
of substitution in the premises.
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Transferees
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Percentage
Transferred
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Number
Transferred
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Dated:
______________, _______________
Signed
in the presence of:
(Name)
ACCEPTED
AND AGREED:
[TRANSFEREE]
(Name)
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(Signature
must conform to name of holder as specified on the face of the
warrant)
(address)
(address)
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