Exhibit 4.36
THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS NOTE
AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS NOTE UNDER SAID ACT OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO BRAVO! FOODS INTERNATIONAL CORP. THAT
SUCH REGISTRATION IS NOT REQUIRED.
CONVERTIBLE NOTE
FOR VALUE RECEIVED, BRAVO! FOODS INTERNATIONAL CORP., a Delaware corporation
(hereinafter called "Borrower"), hereby promises to pay to LONGVIEW FUND,
LP, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, Fax: 415-
000-0000, (the "Holder") or its registered assigns or successors in
interest or order, without demand, the sum of Two Hundred and Fifty Thousand
Dollars ($250,000.00) ("Principal Amount"), with simple and unpaid interest
thereon, on January ___, 2007 (the "Maturity Date"), if not sooner paid.
This Note has been entered into pursuant to the terms of a subscription
agreement between the Borrower and the Holder, dated of even date herewith
(the "Subscription Agreement"), and shall be governed by the terms of such
Subscription Agreement. Unless otherwise separately defined herein, all
capitalized terms used in this Note shall have the same meaning as is set
forth in the Subscription Agreement. The following terms shall apply to
this Note:
ARTICLE I
INTEREST; AMORTIZATION; SECURITY AGREEMENT
1.1. Interest Rate. Subject to Section 5.7 hereof, interest payable
on this Note shall accrue at a rate per annum (the "Interest Rate") equal to
the "prime rate" published in The Wall Street Journal from time to time,
plus four percent (4%). The interest rate shall be increased or decreased
as the case may be for each increase or decrease in the prime rate in an
amount equal to such increase or decrease in the prime rate; each change to
be effective as of the day of the change in such rate. The Interest Rate
shall not be less than eight percent (8%). Interest shall be calculated on
the basis of a 360 day year. Interest on the Principal Amount shall be
payable monthly, in arrears, commencing on June 1, 2005 and on the first day
of each consecutive calendar month thereafter (each, a "Repayment Date") and
on the Maturity Date, whether by acceleration or otherwise.
1.2. Minimum Monthly Principal Payments. Amortizing payments of the
outstanding Principal Amount of this Note shall commence on the first (1st)
Repayment Date and shall recur on each succeeding Repayment Date thereafter
until the Principal Amount has been repaid in full, whether by the payment
of cash or by the conversion of such principal into Common Stock pursuant to
the terms hereof. Subject to Section 2.1 and Article 3 below, on each
Repayment Date, the Borrower shall make payments to the Holder in the amount
of one-twentieth (1/20th) of the initial Principal Amount (the "Monthly
Principal Amount"), together with any accrued and unpaid interest then due
on such portion of the Principal Amount plus any and all other amounts which
are then owing under this Note that have not been paid (the Monthly
Principal Amount, together with such accrued and unpaid interest and such
other amounts, collectively, the "Monthly Amount"). Amounts of conversions
of Principal Amount made by the Holder or Borrower
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pursuant to Section 2.1 or Article III, and Redemption Amounts (as defined
in Section 2.3 of this Note) actually paid to Borrower shall be applied to
Monthly Amounts commencing with the Monthly Amounts first payable and then
Monthly Amounts thereafter in chronological order. Any Principal Amount
that remains outstanding on the Maturity Date shall be due and payable on
the Maturity Date.
1.3. Default Interest Rate. Following the occurrence and during the
continuance of an Event of Default, subject to Section 6.7, the annual
interest rate on this Note shall automatically be increased by five percent
(5%), and all outstanding obligations under this Note, including unpaid
interest, shall continue to accrue interest from the date of such Event of
Default at such interest rate applicable to such obligations until such
Event of Default is cured or waived.
ARTICLE II
CONVERSION REPAYMENT
2.1. (a) Payment of Monthly Amount in Cash or Common Stock. If
the Monthly Amount (or a portion thereof of such Monthly Amount if such
portion of the Monthly Amount could have been converted into shares of
Common Stock but for Section 3.2) is required to be paid in cash pursuant to
Section 2.1(b), then the Borrower shall pay the Holder an amount equal to
103% of the Monthly Amount due and owing to the Holder on the Repayment Date
in cash. If the Monthly Amount (or a portion of such Monthly Amount if not
all of the Monthly Amount may be converted into shares of Common Stock
pursuant to Section 3.2) is required to be paid in shares of Common Stock
pursuant to Section 2.1(b), the number of such shares to be issued by the
Borrower to the Holder on such Repayment Date (in respect of such portion of
the Monthly Amount converted into shares of Common Stock pursuant to Section
2.1(b)), shall be the number determined by dividing (x) the portion of the
Monthly Amount converted into shares of Common Stock, by (y) the then
applicable Fixed Conversion Price. For purposes hereof, the initial "Fixed
Conversion Price" means $0.125.
(b) Monthly Amount Conversion Guidelines. Subject to
Sections 2.1(a), 2.2 and 3.2 hereof, the Holder shall convert into shares of
Common Stock all at the Fixed Conversion Price or the maximum portion of the
Monthly Amount due on each Repayment Date provided that the average of the
five lowest closing bid prices of the Common Stock as reported by Bloomberg,
L.P. on the Principal Market (as defined below) for the twenty (20)
consecutive trading days immediately preceding such Repayment Date shall be
greater than or equal to 15% above the Fixed Conversion Price ("Conversion
Criterion"). The Borrower may not elect to pay a Monthly Amount due on a
Repayment Date in Common Stock in an amount of shares of Common Stock which
would exceed twenty percent (20%) of the average daily trading volume for
the twenty days preceding the Repayment Date multiplied by the lesser of (i)
the average volume weighted average price of the Common stock as reported by
Bloomberg L.P. for the Principal Market using the AQR function ("VWAP") for
the twenty trading days preceding the Repayment Date, or (ii) the closing
bid price of the Common Stock as reported by Bloomberg L.P. for the
Principal Market for the trading day preceding the Repayment Date
("Additional Conversion Criterion"). The Monthly Amount due on a Repayment
Date that the Holder has not been able to convert into shares of Common
Stock due to failure to meet the Conversion Criterion or the Additional
Conversion Limitation shall be paid by the Borrower at the Borrower's
election (i) in cash at the rate of 103% of such Monthly Amount otherwise
due on such Repayment Date within three (3) business days of the applicable
Repayment Date, or (ii) in registered, unlegended, free-trading Common Stock
at an applied conversion rate equal to eighty percent (80%) of the average
of the five (5) lowest closing bid prices of the Common Stock as reported by
Bloomberg L.P. for the twenty (20) trading days preceding such Repayment
Date. Such shares of Common Stock must be delivered to the Holder not later
than three (3) business days of the applicable Repayment Date. Whichever of
the OTC Pink Sheets, NASD OTC Bulletin Board, NASDAQ
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SmallCap Market, NASDAQ National Market System, American Stock Exchange, or
New York Stock Exchange or such other principal market or exchange where the
Common Stock is listed or traded is the principal trading exchange or market
for the Common Stock is the Principal Market.
(c) Application of Conversion Amounts. Any amounts converted
by the Holder pursuant to Section 2.1(b) shall be deemed to constitute
payments of, or applied (i) first, against outstanding fees, (ii) second,
against accrued interest on the Principal Amount, and (iii) third, against
the Principal Amount.
2.2. No Effective Registration. Notwithstanding anything to the
contrary herein, no amount payable hereunder may made in shares of Common
Stock by the Borrower without the Holder's consent unless (a) either (i) an
effective current Registration Statement covering the shares of Common Stock
to be issued in satisfaction of such obligations exists, or (ii) an
exemption from registration of the Common Stock is available pursuant to
Rule 144(k) of the Securities Act, and (b) no Event of Default hereunder
exists and is continuing, unless such Event of Default is cured within any
applicable cure period or is otherwise waived in writing by the Holder in
whole or in part at the Holder's option.
2.3. Optional Redemption of Principal Amount. Provided an Event of
Default has not occurred, whether or not such Event of Default has been
cured, the Borrower will have the option of prepaying the outstanding
Principal Amount ("Optional Redemption"), in whole or in part, by paying to
the Holder a sum of money equal to one hundred twenty percent (120%) of the
Principal Amount to be redeemed, together with accrued but unpaid interest
thereon and any and all other sums due, accrued or payable to the Holder
arising under this Note, the Subscription Agreement or any Transaction
Document through the Redemption Payment Date as defined below (the
"Redemption Amount"). Borrower's election to exercise its right to prepay
must be by notice in writing ("Notice of Redemption"). The Notice of
Redemption shall specify the date for such Optional Redemption (the
"Redemption Payment Date"), which date shall be not less than thirty (30)
business days after the date of the Notice of Redemption (the "Redemption
Period"). A Notice of Redemption shall not be effective with respect to any
portion of the Principal Amount for which the Holder has a pending election
to convert pursuant to Section 3.1, or for conversions initiated or made by
the Holder pursuant to Section 3.1 during the Redemption Period. On the
Redemption Payment Date, the Redemption Amount less any portion of the
Redemption Amount against which the Holder has exercised its rights pursuant
to Section 3.1, shall be paid in good funds to the Holder. In the event the
Borrower fails to pay the Redemption Amount on the Redemption Payment Date
as set forth herein, then (i) such Notice of Redemption will be null and
void, (ii) Borrower will have no right to deliver another Notice of
Redemption, and (iii) Borrower's failure may be deemed by Holder to be a
non-curable Event of Default.
ARTICLE III
CONVERSION RIGHTS
3.1. Holder's Conversion Rights. Subject to Section 2.2 and the
mandatory conversion provisions therein, the Holder shall have the right,
but not the obligation, to convert all or any portion of the then aggregate
outstanding Principal Amount of this Note, together with interest and fees
due hereon, into shares of Common Stock, subject to the terms and conditions
set forth in this Article III. The Holder may exercise such right by
delivery to the Borrower of a written Notice of Conversion pursuant to
Section 3.3.
3.2. Conversion Limitation. Notwithstanding anything contained
herein to the contrary, the Holder shall not be entitled to convert pursuant
to the terms of this Note nor may this Note be converted in
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whole or in part into an amount of Common Stock that would be convertible
into that number of Common Stock which would exceed the difference between
the number of shares of Common Stock beneficially owned by such Holder and
9.99% of the outstanding shares of Common Stock. For the purposes of the
immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Exchange Act and Regulation 13d-3
thereunder. The foregoing limitation shall be calculated as of each
Conversion Date. Aggregate conversions over time shall not be limited to
9.99%. The Holder may void the Conversion Share limitation described in
this Section 3.2 upon 61 days prior notice to the Borrower. The Holder may
allocate which of the equity of the Borrower deemed beneficially owned by
the Holder shall be included in the 9.99% amount described above and which
shall be allocated to the excess above 9.99%.
3.3. Mechanics of Holder's Conversion.
(a) In the event that the Holder elects to convert any amounts
outstanding under this Note into Common Stock, the Holder shall give notice
of such election by delivering an executed and completed notice of
conversion (a "Notice of Conversion") to the Borrower, which Notice of
Conversion shall provide a breakdown in reasonable detail of the Principal
Amount, accrued interest and fees being converted. The original Note is not
required to be surrendered to the Borrower until all sums due under the Note
have been paid. On each Conversion Date (as hereinafter defined) and in
accordance with its Notice of Conversion, the Holder shall make the
appropriate reduction to the Principal Amount, accrued interest and fees as
entered in its records and shall provide written notice thereof to the
Borrower within three (3) business days after the Conversion Date. Each
date on which a Notice of Conversion is delivered or telecopied to the
Borrower in accordance with the provisions hereof shall be deemed a
"Conversion Date." A form of Notice of Conversion to be employed by the
Holder is annexed hereto as Exhibit A.
(b) Pursuant to the terms of a Notice of Conversion, the
Borrower will issue instructions to the transfer agent accompanied by an
opinion of counsel, if so required by the Borrower's transfer agent, within
two (2) business days after the date of the delivery to Borrower of the
Notice of Conversion and shall cause the transfer agent to transmit the
certificates representing the Conversion Shares to the Holder by crediting
the account of the Holder's designated broker with the Depository Trust
Corporation ("DTC") through its Deposit Withdrawal Agent Commission ("DWAC")
system within three (3) business days after receipt by the Borrower of the
Notice of Conversion (the "Delivery Date"). In the case of the exercise of
the conversion rights set forth herein the conversion privilege shall be
deemed to have been exercised and the Conversion Shares issuable upon such
conversion shall be deemed to have been issued upon the date of receipt by
the Borrower of the Notice of Conversion. The Holder shall be treated for
all purposes as the record holder of such shares of Common Stock, unless the
Holder provides the Borrower written instructions to the contrary.
Notwithstanding the foregoing to the contrary, the Borrower or its transfer
agent shall only be obligated to issue and deliver the shares to the DTC on
the Holder's behalf via DWAC (or certificates free of restrictive legends)
if the registration statement providing for the resale of the shares of
Common Stock issuable upon the conversion of this Note is effective and the
Holder has complied with all applicable securities laws in connection with
the sale of the Common Stock, including, without limitation, the prospectus
delivery requirements. In the event that Conversion Shares cannot be
delivered to the Holder via DWAC, the Borrower shall deliver physical
certificates representing the Conversion Shares by the Delivery Date.
3.4. Conversion Mechanics.
(a) The number of shares of Common Stock to be issued upon
each conversion of this Note pursuant to this Article III shall be
determined by dividing that portion of the Principal Amount and interest and
fees to be converted, if any, by the then applicable Fixed Conversion Price.
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(b) The Fixed Conversion Price and number and kind of shares
or other securities to be issued upon conversion shall be subject to
adjustment from time to time upon the happening of certain events while this
conversion right remains outstanding, as follows:
A. Merger, Sale of Assets, etc. If the Borrower at any
time shall consolidate with or merge into or sell or convey all or
substantially all its assets to any other corporation, this Note, as to the
unpaid principal portion thereof and accrued interest thereon, shall
thereafter be deemed to evidence the right to purchase such number and kind
of shares or other securities and property as would have been issuable or
distributable on account of such consolidation, merger, sale or conveyance,
upon or with respect to the securities subject to the conversion or purchase
right immediately prior to such consolidation, merger, sale or conveyance.
The foregoing provision shall similarly apply to successive transactions of
a similar nature by any such successor or purchaser. Without limiting the
generality of the foregoing, the anti-dilution provisions of this Section
shall apply to such securities of such successor or purchaser after any such
consolidation, merger, sale or conveyance.
B. Reclassification, etc. If the Borrower at any time
shall, by reclassification or otherwise, change the Common Stock into the
same or a different number of securities of any class or classes, this Note,
as to the unpaid principal portion thereof and accrued interest thereon,
shall thereafter be deemed to evidence the right to purchase an adjusted
number of such securities and kind of securities as would have been issuable
as the result of such change with respect to the Common Stock immediately
prior to such reclassification or other change.
C. Stock Splits, Combinations and Dividends. If the
shares of Common Stock are subdivided or combined into a greater or smaller
number of shares of Common Stock, or if a dividend is paid on the Common
Stock in shares of Common Stock, the Conversion Price shall be
proportionately reduced in case of subdivision of shares or stock dividend
or proportionately increased in the case of combination of shares, in each
such case by the ratio which the total number of shares of Common Stock
outstanding immediately after such event bears to the total number of shares
of Common Stock outstanding immediately prior to such event.
D. Share Issuance. So long as this Note is
outstanding, if the Borrower shall issue any Common Stock except for the
Excepted Issuances (as defined in the Subscription Agreement), prior to the
complete conversion of this Note for a consideration less than the Fixed
Conversion Price that would be in effect at the time of such issue, then,
and thereafter successively upon each such issuance, the Fixed Conversion
Price shall be reduced to such other lower issue price. For purposes of
this adjustment, the issuance of any security or debt instrument of the
Borrower 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 Fixed Conversion Price upon the
issuance of the above-described security, debt instrument, warrant, right,
or option and again upon the issuance of shares of Common Stock upon
exercise of such conversion or purchase rights if such issuance is at a
price lower than the then applicable Conversion Price. The reduction of the
Fixed Conversion Price described in this paragraph is in addition to the
other rights of the Holder described in the Subscription Agreement.
(c) Whenever the Conversion Price is adjusted pursuant to
Section 3.4(b) above, the Borrower shall promptly mail to the Holder a
notice setting forth the Conversion Price after such adjustment and setting
forth a statement of the facts requiring such adjustment.
3.5. Reservation. During the period the conversion right exists,
Borrower will reserve from its authorized and unissued Common Stock not less
than one hundred fifty percent (150%) of the number of
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shares to provide for the issuance of Common Stock upon the full conversion
of this Note. Borrower represents that upon issuance, such shares will be
duly and validly issued, fully paid and non-assessable. Borrower agrees
that its issuance of this Note shall constitute full authority to its
officers, agents, and transfer agents who are charged with the duty of
executing and issuing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon the conversion of this Note.
3.6 Issuance of Replacement Note. Upon any partial conversion of
this Note, a replacement Note containing the same date and provisions of
this Note shall, at the written request of the Holder, be issued by the
Borrower to the Holder for the outstanding Principal Amount of this Note and
accrued interest which shall not have been converted or paid, provided
Holder has surrendered an original Note to the Company. In the event that
the Holder elects not to surrender a Note for reissuance upon partial
payment or conversion, the Holder hereby indemnifies the Borrower against
any and all loss or damage attributable to a third-party claim in an amount
in excess of the actual amount then due under the Note.
ARTICLE IV
EVENTS OF DEFAULT
The occurrence of any of the following events of default ("Event of
Default") shall, at the option of the Holder hereof, make all sums of
principal and interest then remaining unpaid hereon and all other amounts
payable hereunder immediately due and payable, upon demand, without
presentment, or grace period, all of which hereby are expressly waived,
except as set forth below:
4.1 Failure to Pay Principal or Interest. The Borrower fails to pay
any installment of Principal Amount, interest or other sum due under this
Note or any Transaction Document when due and such failure continues for a
period of five (5) business days after the due date.
4.2 Breach of Covenant. The Borrower breaches any material covenant
or other term or condition of the Subscription Agreement, this Note or
Transaction Document in any material respect and such breach, if subject to
cure, continues for a period of ten (10) business days after written notice
to the Borrower from the Holder.
4.3 Breach of Representations and Warranties. Any material
representation or warranty of the Borrower made herein, in the Subscription
Agreement, Transaction Document or in any agreement, statement or
certificate given in writing pursuant hereto or in connection herewith or
therewith shall be false or misleading in any material respect as of the
date made and a Closing Date.
4.4 Receiver or Trustee. The Borrower or any Subsidiary of Borrower
shall make an assignment for the benefit of creditors, or apply for or
consent to the appointment of a receiver or trustee for them or for a
substantial part of their property or business; or such a receiver or
trustee shall otherwise be appointed.
4.5 Judgments. Any money judgment, writ or similar final process
shall be entered or filed against Borrower or any subsidiary of Borrower or
any of their property or other assets for more than $50,000, and shall
remain unvacated, unbonded or unstayed for a period of forty-five (45) days.
4.6 Non-Payment. A default by the Borrower under any one or more
obligations in an aggregate monetary amount in excess of $50,000 for more
than twenty (20) days after the due date.
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4.7 Bankruptcy. Bankruptcy, insolvency, reorganization or
liquidation proceedings or other proceedings or relief under any bankruptcy
law or any law, or the issuance of any notice in relation to such event, for
the relief of debtors shall be instituted by or against the Borrower or any
Subsidiary of Borrower and if instituted against them are not dismissed
within forty-five (45) - days of initiation.
4.8 Delisting. Delisting of the Common Stock from the OTC Bulletin
Board ("Bulletin Board") or such other principal exchange on which the
Common Stock is listed for trading; failure to comply with the requirements
for continued listing on the Bulletin Board for a period of seven
consecutive trading days; or notification from the Bulletin Board or any
Principal Market that the Borrower is not in compliance with the conditions
for such continued listing on the Bulletin Board or other Principal Market.
4.9 Stop Trade. An SEC or judicial stop trade order or Principal
Market trading suspension with respect to Borrower's Common Stock that lasts
for five or more consecutive trading days.
4.10 Failure to Deliver Common Stock or Replacement Note. Borrower's
failure to timely deliver Common Stock to the Holder pursuant to and in the
form required by this Note or the Subscription Agreement, or, if requested
by Borrower, a replacement Note.
4.11 Non-Registration Event. The occurrence of a Non-Registration
Event as described in the Subscription Agreement.
4.12 Reverse Splits. The Borrower effectuates a reverse split of its
Common Stock without the prior written consent of the Holder.
4.13 Cross Default. A default by the Borrower of a material term,
covenant, warranty or undertaking of any Transaction Document or other
agreement to which the Borrower and Holder are parties, or the occurrence of
a material event of default under any such other agreement which is not
cured after any required notice and/or cure period.
4.14 Change in Control. A majority of the directors of the Borrower
as of the issue date of this Note no longer serving on Borrower's board of
directors unless such change is a result of the death of one or more
directors, or if Xxx Xxxxxx is no longer employed by the Borrower as its
Chief Executive Officer.
ARTICLE V
MISCELLANEOUS
5.1 Failure or Indulgence Not Waiver. No failure or delay on the
part of Holder hereof in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing hereunder are cumulative to, and not exclusive of, any
rights or remedies otherwise available.
5.2 Notices. All notices, demands, requests, consents, approvals,
and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) personally served, (ii)
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with
charges prepaid, or (iv) transmitted by hand delivery, telegram, or
facsimile, addressed as set forth below or to such other address as such
party shall have specified most recently by written notice. Any notice or
other communication required or permitted to be given hereunder shall be
deemed effective (a) upon hand delivery or delivery by facsimile, with
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accurate confirmation generated by the transmitting facsimile machine, at
the address or number designated below (if delivered on a business day
during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be
received) or (b) on the second business day following the date of mailing by
express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be: (i) if to the Borrower to: Bravo! Foods
International Corp., 00000 X.X. Xxxxxxx 0, Xxxxx 000, Xxxxx Xxxx Xxxxx,
Xxxxxxx 00000, Attn: Xxx X. Xxxxxx, Xx., Esq., telecopier: (000) 000-0000,
and (ii) if to the Holder, to the name, address and telecopy number set
forth on the front page of this Note, with a copy by telecopier only to
Grushko & Xxxxxxx, P.C., 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, telecopier number: (000) 000-0000.
5.3 Amendment Provision. The term "Note" and all reference thereto,
as used throughout this instrument, shall mean this instrument as originally
executed, or if later amended or supplemented, then as so amended or
supplemented.
5.4 Assignability. This Note shall be binding upon the Borrower and
its successors and assigns, and shall inure to the benefit of the Holder and
its successors and assigns.
5.5 Cost of Collection. If default is made in the payment of this
Note, Borrower shall pay the Holder hereof reasonable costs of collection,
including reasonable attorneys' fees.
5.6 Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without regard to
conflicts of laws principles that would result in the application of the
substantive laws of another jurisdiction. Any action brought by either
party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the state courts of New York or in the
federal courts located in the state of New York. Both parties and the
individual signing this Note on behalf of the Borrower agree to submit to
the jurisdiction of such courts. The prevailing party shall be entitled to
recover from the other party its reasonable attorney's fees and costs. In
the event that any provision of this Note 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 unenforceability of any other provision of this Note. Nothing
contained herein shall be deemed or operate to preclude the Holder from
bringing suit or taking other legal action against the Borrower in any other
jurisdiction to collect on the Borrower's obligations to Holder, to realize
on any collateral or any other security for such obligations, or to enforce
a judgment or other court in favor of the Holder.
5.7 Maximum Payments. Nothing contained herein shall be deemed to
establish or require the payment of a rate of interest or other charges in
excess of the maximum permitted by applicable law. In the event that the
rate of interest required to be paid or other charges hereunder exceed the
maximum permitted by such law, any payments in excess of such maximum shall
be credited against amounts owed by the Borrower to the Holder and thus
refunded to the Borrower.
5.8. Construction. Each party acknowledges that its legal counsel
participated in the preparation of this Note and, therefore, stipulates that
the rule of construction that ambiguities are to be resolved against the
drafting party shall not be applied in the interpretation of this Note to
favor any party against the other.
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5.9 Redemption. This Note may not be redeemed or called without the
consent of the Holder except as described in this Note.
5.10 Shareholder Status. The Holder shall not have rights as a
shareholder of the Borrower with respect to unconverted portions of this
Note. However, the Holder will have the rights of a shareholder of the
Borrower with respect to the Shares of Common Stock to be received after
delivery by the Holder of a Conversion Notice to the Borrower.
IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its
name by an authorized officer as of the ____ day of January, 2005.
BRAVO! FOODS INTERNATIONAL CORP.
By:________________________________
Name: Xxx Xxxxxx
Title: CEO
WITNESS:
______________________________________
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NOTICE OF CONVERSION
(To be executed by the Registered Holder in order to convert the Note)
The undersigned hereby elects to convert $_________ of the principal
and $_________ of the interest due on the Note issued by Bravo! Foods
International Corp. on January ____, 2005 into Shares of Common Stock of
Bravo! Foods International Corp. (the "Borrower") according to the
conditions set forth in such Note, as of the date written below.
Date of
Conversion:_________________________________________________________________
Conversion
Price:______________________________________________________________________
Number of Shares of Common Stock Beneficially Owned on the Conversion Date:
Less than 5% of the outstanding Common Stock of Bravo! Foods International
Corp..
Shares To Be Delivered:_____________________________________________________
Signature:__________________________________________________________________
Print Name:_________________________________________________________________
Address:____________________________________________________________________
____________________________________________________________________
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