Exhibit 99.1
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT (the "Agreement"), dated as of August 31, 2006, by and
among Bravo! Foods International Corp., a Delaware corporation, with
headquarters located at 00000 X.X. Xxxxxxx #0, Xxxxx 000, Xxxxx Xxxx Xxxxx,
Xxxxxxx 00000 (the "Company"), and [Investor] (the "Investor").
WHEREAS:
A. The Company, the Investor and certain other investors (the "Other
Investors", and collectively with the Investor, the "Investors") are parties to
that certain Securities Purchase Agreement, dated as of July 26, 2006 (the
"Securities Purchase Agreement"), pursuant to which, among other things, the
Investors purchased from the Company (i) senior convertible notes (the "Initial
Notes"), which are convertible into shares of the Company's common stock, par
value $0.001 per share (the "Common Stock") in accordance with the terms
thereof, (ii) additional senior convertible notes (the "Existing Additional
Notes," and together with the Initial Notes, the "Existing Notes"), which are
convertible into Common Stock, (the Existing Additional Notes, as converted, the
"Existing Additional Conversion Shares") in accordance with the terms thereof
and (iii) warrants, which are exercisable into shares of Common Stock.
B. The Company has indicated in its current report on Form 8-K, filed with
the Securities Exchange Commission (the "SEC") on August 22, 2006 that it failed
to file its Quarterly Report on Form 10-QSB for the quarter ended June 30, 2006
when due (the "10-QSB Filing Failure"), and that such failure caused an Event of
Default (as defined in the Existing Notes) to occur under the terms of the
Existing Notes.
C. The Company and the Investor desire to enter into this Agreement,
pursuant to which, among other things, (i) in consideration of the Investor's
agreement to not issue an Event of Default Redemption Notice (as defined in the
Existing Notes) pursuant to the terms of the Existing Notes and the conditional
release by the Investor of Events of Default relating to the 10-QSB Filing
Failure, the Company and the Investor shall exchange the Investor's Existing
Additional Notes for senior convertible notes in the form attached hereto as
Exhibit A (the "Amended and Restated Additional Notes" and together with the
Initial Notes, the "Notes"), which shall be convertible into Common Stock (as
converted, the "Amended and Restated Additional Shares"), in accordance with the
terms thereof; and (ii) the Company and the Investor amend the Registration
Rights Agreement to change the definition of "Additional Filing Deadline."
D. The exchange of the Existing Additional Notes for the Amended and
Restated Additional Notes is being made in reliance upon the exemption from
registration provided by Section 4(2) of the 1933 Act.
E. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings ascribed to them in the Securities Purchase
Agreement and the Amended and Restated Additional Notes.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the Company and the Investor hereby agree as
follows:
1. AMENDMENT AND RESTATEMENT OF NOTES.
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(a) Amendment and Restatement. Subject to satisfaction (or waiver)
of the conditions set forth in Sections 5 and 6 below, at the closing
contemplated by this Agreement (the "Closing"), the Investor shall
surrender to the Company its Existing Additional Notes and the Company
shall issue and deliver to the Investor the Amended and Restated
Additional Notes in a principal amount equal to that of the Existing
Additional Notes being so amended and restated.
(b) Ratifications. Except as otherwise expressly provided herein,
(i) the Securities Purchase Agreement, Registration Rights Agreement, and
each other Transaction Documents is, and shall continue to be, in full
force and effect and is hereby ratified and confirmed in all respects,
except that on and after the Closing Date (A) all references in the
Securities Purchase Agreement to "this Agreement", "hereto", "hereof",
"hereunder" or words of like import referring to the Securities Purchase
Agreement shall mean the Securities Purchase Agreement as amended by this
Agreement, (B) all references in the Registration Rights Agreement to
"this Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Registration Rights Agreement shall mean the Registration
Rights Agreement as amended by this Agreement, (C) all references in the
Transaction Documents other than the Securities Purchase Agreement, to the
"Securities Purchase Agreement", "thereto", "thereof", "thereunder" or
words of like import referring to the Securities Purchase Agreement shall
mean the Securities Purchase Agreement as amended by this Agreement, and
(D) all references in the Transaction Documents other than the
Registration Rights Agreement, to the "Registration Rights Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to
the Registration Rights Agreement shall mean the Registration Rights
Agreement as amended by this Agreement and (ii) the execution, delivery
and effectiveness of this Agreement shall not operate as an amendment of
any right, power or remedy of the Investor under any Transaction Document,
nor constitute an amendment of any provision of any Transaction Document.
(c) Closing Date. The date and time of the Closing (the "Closing
Date") shall be 10:00 a.m., New York Time, on the Business Day after
notification of satisfaction (or waiver) of the conditions to the Closing
set forth in Sections 5 and 6 below (or such other time and date as is
mutually agreed to by the Company and the Investor). The Closing shall
occur on the Closing Date at the offices of Xxxxxxx Xxxx & Xxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
2. AMENDMENTS TO TRANSACTION DOCUMENTS.
------------------------------------
(a) The Securities Purchase Agreement and the Registration Rights
Agreement are hereby amended as follows:
(i) All references to "Additional Notes" shall mean, and are
hereby replaced with, the "Amended and Restated Additional Notes";
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(ii) All references to "Additional Conversion Shares" shall
mean, and are hereby replaced with, the "Amended and Restated
Additional Conversion Shares";
(iii) The defined term "Transaction Documents" is hereby
amended to include this Agreement and the Amended and Restated
Additional Notes.
(b) Section 1(d) of the Registration Rights Agreement is hereby
amended and restated in its entirety as follows: "'Additional Filing
Deadline' means the later of (a) 30 days after the Company Escrow Release
Date (as defined in the Securities Purchase Agreement) to the Company and
(b) the last day of the Holder Optional Redemption Period (as such term is
defined in the Amended and Restated Additional Notes)."
(c) Clause (v) of the definition of "Excluded Securities" in Section
28(v) of the Initial Note owned by the Investor is hereby amended and
restated in its entirety as follows: "(v) in connection with a Subsequent
Placement (as defined in the Securities Purchase Agreement) of Common
Stock with the then current stockholders of the Company that is
consummated prior to the earlier of (A) the twenty first (21st) calendar
day after effectiveness of the Form SB-2 filed pursuant to the Securities
Purchase Agreement, dated as of November 23, 2005, by and among the
Company and the investors listed on Exhibit A attached thereto and (B)
December 15, 2006, which Subsequent Placement of Common Stock (A) does not
exceed $6,000,000 in the aggregate, (B) is at an issuance price per share
of Common Stock not less than $0.50 and (C) has been effected in
accordance with Section 4(o) of the Securities Purchase Agreement".
3. REPRESENTATIONS AND WARRANTIES
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(a) Investor Bring Down. The Investor hereby represents and warrants
to the Company with respect to itself only as set forth in Section 2 of
the Securities Purchase Agreement as to this Agreement as if such
representations and warranties were made as of the date hereof and set
forth in their entirety in this Agreement[ INSERT IN HBK AGREEMENT -;
provided, however, that with respect to the representations set forth in
Section 2(k) of the Securities Purchase Agreement, the Investor makes no
representation with respect to trading activity or Short Sales from and
after the 8-K Filing (as defined in the Securities Purchase Agreement)].
Such representations and warranties in the Securities Purchase Agreement
to the transactions thereunder and the securities issued thereby are
hereby deemed for purposes of this Agreement to be references to the
transactions hereunder and the issuance of the securities hereby.
(b) Company Bring Down. The Company represents and warrants to the
Investor as set forth in Section 3 of the Securities Purchase Agreement as
if such representations and warranties were made as of the date hereof and
set forth in their entirety in this Agreement. Such representations and
warranties in the Securities Purchase Agreement to the transactions
thereunder and the securities issued thereby are hereby deemed for
purposes of this Agreement to be references to the transactions hereunder
and the issuance of the securities hereby.
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4. CERTAIN COVENANTS AND AGREEMENTS
--------------------------------
(a) Disclosure of Transactions and Other Material Information. On or
before 5:00 p.m., New York City time, on the second Business Day following
the date of this Agreement, the Company shall issue a press release and
file a Current Report on Form 8-K describing the terms of the transactions
contemplated by this Agreement in the form required by the 1934 Act and
attaching the material Transaction Documents (including, without
limitation, this Agreement (and all schedules and exhibits to this
Agreement) and the form of the Amended and Additional Restated Notes) as
exhibits to such filing (including all attachments, the "8-K Filing").
From and after the filing of the 8-K Filing with the SEC, no Buyer shall
be in possession of any material, nonpublic information received from the
Company, any of its Subsidiaries or any of its respective officers,
directors, employees or agents, that is not disclosed in the 8-K Filing.
The Company shall not, and shall cause each of its Subsidiaries and its
and each of their respective officers, directors, employees and agents,
not to, provide the Investor with any material, nonpublic information
regarding the Company or any of its Subsidiaries from and after the filing
of the 8-K Filing with the SEC without the express written consent of the
Investor. If the Investor has, or believes it has, received any such
material, nonpublic information regarding the Company or any of its
Subsidiaries, it may provide the Company with written notice thereof. The
Company shall, within five (5) Trading Days of receipt of such notice,
make public disclosure of such material, nonpublic information. In the
event of a breach of the foregoing covenant by the Company, any of its
Subsidiaries, or any of its or their respective officers, directors,
employees and agents, in addition to any other remedy provided herein or
in the Transaction Documents, the Investor shall have the right to make a
public disclosure, in the form of a press release, public advertisement or
otherwise, of such material, nonpublic information without the prior
approval by the Company, its Subsidiaries, or any of its or their
respective officers, directors, employees or agents. The Investor shall
not have any liability to the Company, its Subsidiaries, or any of its or
their respective officers, directors, employees, stockholders or agents
for any such disclosure. Subject to the foregoing, neither the Company,
its Subsidiaries nor the Investor shall issue any press releases or any
other public statements with respect to the transactions contemplated
hereby; provided, however, that the Company shall be entitled, without the
prior approval of the Investor, to make any press release or other public
disclosure with respect to such transactions (i) in substantial conformity
with the 8-K Filing and contemporaneously therewith and (ii) as is
required by applicable law and regulations (provided that in the case of
clause (i) the Investor shall be consulted by the Company in connection
with any such press release or other public disclosure prior to its
release). Without the prior written consent of the Investor, neither the
Company nor any of its Subsidiaries or affiliates shall disclose the name
of the Investor in any filing, announcement, release or otherwise.
(b) Fees and Expenses. [INSERT IN POLYGON AGREEMENT - At the
Closing, the Company shall reimburse the Investor for its legal and due
diligence fees and expenses in connection with the preparation and
negotiation of this Agreement by paying any such amount to Xxxxxxx Xxxx &
Xxxxx LLP (the "Investor Counsel Expense"). Upon execution of this
Agreement, the Company shall pay to Xxxxxxx Xxxx & Xxxxx LLP $23,500
toward the Investor Counsel Expense.] Except as otherwise set forth in
this Agreement, each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and
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performance of this Agreement. The Company shall pay all stamp and other
taxes and duties levied in connection with the issuance of the Amended and
Restated Additional Notes.
5. CONDITIONS TO COMPANY'S OBLIGATIONS HEREUNDER.
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The obligations of the Company to the Investor hereunder are subject to
the satisfaction of each of the following conditions, provided that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion by providing the Investor with prior written
notice thereof:
(a) The Investor shall have executed this Agreement and delivered
the same to the Company.
(b) The Investor shall have delivered to the Company the Investor's
Existing Additional Notes for cancellation.
(c) The representations and warranties of the Investor shall be true
and correct in all material respects (except for those representations and
warranties that are qualified by materiality or Material Adverse Effect,
which shall be true and correct in all respects) as of the date when made
and as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date).
6. CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER.
-----------------------------------------------
The obligations of the Investor hereunder are subject to the satisfaction
of each of the following conditions, provided that these conditions are for the
Investor's sole benefit and may be waived by the Investor at any time in its
sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and delivered the
same to the Investor.
(b) The Company shall have executed and delivered to the Investor
the Amended and Restated Notes being issued to the Investor at Closing.
(c) Investors holding no less than a majority in principal amount of
Existing Notes shall have (i) executed agreements identical to this
Agreement (other than proportional changes in the numbers reflecting the
different principal amount of such Other Investors' Existing Additional
Notes (the "Proportionate Changes")), (ii) satisfied or waived all
conditions to the closings contemplated by such agreements and (iii)
surrendered their Existing Additional Notes for Amended and Restated
Additional Notes identical to the Amended and Restated Additional Notes of
the Investor hereunder (other than the Proportionate Changes).
(d) The Company shall have delivered to the Company's transfer agent
a letter stating that the Irrevocable Transfer Agent Instructions dated
July 27, 2006 shall also apply to the Amended and Restated Additional
Conversion Shares.
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(e) The Company shall have delivered to the Investor a certificate,
executed by the Secretary of the Company and dated as of the Closing Date,
as to (i) the resolutions consistent with the transactions contemplated
hereby as adopted by the Board in a form reasonably acceptable to the
Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each
as in effect at the Closing, in the form attached hereto as Exhibit B.
(f) The representations and warranties of the Company under the
Securities Purchase Agreement and each other Transaction Document shall be
true and correct in all material respects (except for those
representations and warranties that are qualified by materiality or
Material Adverse Effect, which shall be true and correct in all respects)
as of the date when made and as of the Closing Date as though made at that
time (except for representations and warranties that speak as of a
specific date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and
conditions required by the Transaction Documents to be performed,
satisfied or complied with by the Company at or prior to the Closing Date
and no Default or Event of Default (other than the Default or Event of
Default relating to Existing Claims) shall have occurred and be continuing
on the date hereof either immediately before or after giving effect to
this Agreement in accordance with its terms. The Investor shall have
received a certificate, executed by the Chief Executive Officer of the
Company, dated as of the Closing Date, to the foregoing effect and as to
such other matters as may be reasonably requested by the Investor in the
form attached hereto as Exhibit C.
(g) The Common Stock (I) shall be designated for quotation or listed
on the Principal Market and (II) shall not have been suspended, as of the
Closing Date, by the SEC or the Principal Market from trading on the
Principal Market nor shall suspension by the SEC or the Principal Market
have been threatened, as of the Closing Date, either (A) in writing by the
SEC or the Principal Market or (B) by falling below the minimum listing
maintenance requirements of the Principal Market.
7. MUTUAL RELEASES.
----------------
(a) For purposes of this Agreement, "Existing Claims" shall mean any
purported events of default solely based upon the Company's 10-QSB Filing
Failure. In consideration of the releases set forth in Section 7(b) and
the exchange of the Existing Additional Notes for the Amended and Restated
Additional Notes, effective as of the Closing, the Investor, only on
behalf of itself and, to the extent permitted by law, its heirs,
executors, administrators, devisees, trustees, partners, directors,
officers, shareholders, employees, consultants, representatives,
predecessors, principals, agents, parents, associates, affiliates,
subsidiaries, attorneys, accountants, successors, successors-in-interest
and assignees (collectively, the "Investor Releasing Persons"), hereby
waives and releases, to the fullest extent permitted by law, any and all
claims, rights and causes of action relating to the Existing Claims that
any of the Investor Releasing Persons had, currently has or may have, that
are directly or indirectly related to, based upon, arise out of, or arise
in connection with any fact, matter, act or omission, cause, transaction,
occurrence or thing occurring up to the date of this release against (i)
the Company, (ii) any of the Company's current or former parents,
affiliates, subsidiaries, predecessors, assigns, attorneys or counsel,
accountants, employees, consultants or representatives, or (iii) any of
the Company's or such other persons' or entities' current or former
officers, directors, employees,
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agents, principals, and signatories (collectively, the "Company Released
Persons"), including, without limitation, any Existing Claims arising out
of any of the Transaction Documents. For the avoidance of doubt, claims
arising after the Closing that relate to events or circumstances
occurring, or actions taken or failed to be taken, after the Closing are
not waived or released hereby. Except for the Existing Claims, any claims,
rights or causes of action arising out of or based upon events, facts or
circumstances occurring, or actions taken or failed to be taken, prior to
or after the date hereof, whether or not such events, facts or
circumstances constitute an Event of Default under the Existing Additional
Notes, the Initial Notes or Amended and Restated Additional Notes, are not
waived or released hereby. Notwithstanding the foregoing, to the extent
any Other Investor delivers an Event of Default Redemption Notice with
respect to an Event of Default relating in whole or in part to the
Existing Claims, the release set forth in this Section 7(a) shall
terminate, be of no force and effect and shall become null and void.
(b) In further consideration of the Investor entering into this
Agreement, effective as of the date of this Agreement, the Company on
behalf of itself and, to the extent permitted by law, its administrators,
devisees, trustees, partners, directors, officers, shareholders,
employees, consultants, representatives, predecessors, principals, agents,
parents, associates, affiliates, subsidiaries, attorneys, accountants,
successors, successors-in-interest and assignees (collectively, the
"Company Releasing Persons"), hereby waives and releases, to the fullest
extent permitted by law, any and all claims, rights and causes of action,
whether known or unknown (collectively, the "Company Claims"), that any of
the Company Releasing Persons had, currently has or may have, that are
directly or indirectly related to, based upon, arise out of, or arise in
connection with any fact, matter, act or omission, cause, transaction,
occurrence or thing occurring up to the date of this release against (i)
the Investor, (ii) any of the Investor's current or former parents,
members, partners, shareholders, affiliates, subsidiaries, predecessors or
assigns, or (iii) any of the Investor's or such other persons' or
entities' current or former officers, directors, members, partners,
shareholders, employees, agents, principals, investors, signatories,
advisors, consultants, spouses, heirs, estates, executors, attorneys,
auditors and associates and members of their immediate families
(collectively, the "Investor Released Persons"), including, without
limitation, any Company Claims relating to or arising out of any of the
Existing Claims or Transaction Documents. Company Claims arising after the
Closing that relate to events, facts or circumstances occurring, or
actions taken or failed to be taken, after the Closing are not waived or
released hereby.
8. TERMINATION.
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In the event that the Closing does not occur by September 5, 2006, due to
the Company's or the Investor's failure to satisfy the conditions set forth in
Sections 5 and 6 hereof (and the nonbreaching party's failure to waive such
unsatisfied conditions(s)), the nonbreaching party shall have the option to
terminate this Agreement with respect to such breaching party at the close of
business on such date without liability of any party to any other party;
provided, however, this if this Agreement is terminated pursuant to this Section
8, the Company shall remain obligated to reimburse the non-breaching Investor
for the expenses described in Section 4(c) above. Upon such termination, the
terms hereof shall be null and void and the parties shall continue to comply
with all terms and conditions of the Transaction Documents, as in effect prior
to the execution of this Agreement.
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9. MISCELLANEOUS.
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(a) Counterparts. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party; provided that a facsimile
signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were
an original, not a facsimile signature.
(b) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of,
this Agreement.
(c) Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other
jurisdiction.
(d) Governing Law; Jurisdiction; Jury Trial. All questions
concerning the construction, validity, enforcement and interpretation of
this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the State of New York, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, 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 any such court, that
such suit, action or proceeding is brought in an inconvenient forum or
that the venue of such suit, action or proceeding is improper. 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 to such party at the address for such notices to it under
this Agreement 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
manner permitted by law. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE,
AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(e) No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof
be enforced by, any other Person.
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(f) Further Assurances. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out
the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
(g) No Strict Construction. The language used in this Agreement will
be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any
party.
(h) Entire Agreement; Effect on Prior Agreements; Amendments. Except
for the Transaction Documents (to the extent any such Transaction Document
is not amended by this Agreement), this Agreement supersedes all other
prior oral or written agreements between the Investor, the Company, their
affiliates and Persons acting on their behalf with respect to the matters
discussed herein, and this Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Investor makes any
representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Company and the Investor and to the
extent that Other Investors may be affected thereby, by the Required
Holders. No provision hereof may be waived other than by an instrument in
writing signed by the party against whom enforcement is sought. No
consideration shall be offered or paid to any Person to amend or consent
to a waiver or modification of any provision of any of the Transaction
Documents unless the same consideration also is offered to all of the
parties to the Transaction Documents, holders of Notes or holders of the
Warrants, as the case may be. The Company has not, directly or indirectly,
made any agreements with any of the Investors relating to the terms or
conditions of the transactions contemplated by the Transaction Documents
except as set forth in the Transaction Documents.
(i) 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:
If to the Company:
Bravo! Foods International Corp.
00000 XX Xxxxxxx 0
Xxxxx 000
Xxxxx Xxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Chief Financial Officer
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With a copy (for informational purposes only) to
Xxx X. Xxxxxx, Xx., Vice President, General Counsel
Copy to (for informational purposes only):
Xxxxx & XxXxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
If to the Investor, to its address and facsimile number set forth in the
Securities Purchase Agreement, with copies to the Investor's representatives as
set forth on the Securities Purchase Agreement or on the signature page to this
Agreement,
with a copy (for informational purposes only) to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
or to such other address and/or facsimile number and/or to the attention of such
other Person as the recipient party has specified by written notice given to
each other party five (5) days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by an overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above, respectively.
(j) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns in accordance with the terms of the Securities Purchase Agreement.
(k) Survival. Unless this Agreement is terminated under Section 8,
the representations and warranties of the Company and the Investor
contained herein and the agreements and covenants set forth herein shall
survive the Closing.
(l) Remedies. The Investor and each holder of the Securities shall
have all rights and remedies set forth in the Transaction Documents and
all rights and remedies which such holders have been granted at any time
under any other agreement or contract and all of the rights which such
holders have under any law. Any Person having any rights under any
provision of this Agreement shall be entitled to enforce such rights
specifically (without posting
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a bond or other security), to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights granted
by law. Furthermore, the Company recognizes that in the event that it
fails to perform, observe, or discharge any or all of its obligations
under this Agreement, any remedy at law may prove to be inadequate relief
to the Investor. The Company therefore agrees that the Investor shall be
entitled to seek temporary and permanent injunctive relief in any such
case without the necessity of proving actual damages and without posting a
bond or other security.
(m) Independent Nature of Investor's Obligations and Rights. The
obligations of the Investor under any Transaction Document are several and
not joint with the obligations of any Other Investor, and the Investor
shall not be responsible in any way for the performance of the obligations
of any Other Investor under any Transaction Document. Nothing contained
herein or in any other Transaction Document, and no action taken by the
Investor pursuant hereto, shall be deemed to constitute the Investor and
the Other Investors as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Investor and
the Other Investors are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by the
Transaction Documents. The Company and the Investor confirm that the
Investor has independently participated in the negotiation of the
transactions contemplated hereby with the advice of its own counsel and
advisors. The Investor shall be entitled to independently protect and
enforce its rights, including, without limitation, the rights arising out
of this Agreement or out of any other Transaction Documents, and it shall
not be necessary for any Other Investor to be joined as an additional
party in any proceeding for such purpose.
(n) Most Favored Nation. The Company hereby represents and warrants
as of the date hereof and covenants and agrees from and after the date
hereof that none of the terms offered to any Person with respect to any
amendment, settlement or waiver (each a "Settlement Document") relating to
the Existing Claims, is or will be more favorable to such Person than
those of the Investor and this Agreement shall be, without any further
action by the Investor or the Company, deemed amended and modified in an
economically and legally equivalent manner such that the Investor shall
receive the benefit of the more favorable terms contained in such
Settlement Document. Notwithstanding the foregoing, the Company agrees, at
its expense, to take such other actions (such as entering into amendments
to the Transaction Documents) as the Investor may reasonably request to
further effectuate the foregoing.
[Signature Page Follows]
11
IN WITNESS WHEREOF, the Investor and the Company have caused their
respective signature page to this Agreement to be duly executed as of the date
first written above.
COMPANY:
BRAVO! FOOD INTERNATIONAL CORP.
By: _______________________________
Name:
Title:
[Signature Page to Amendment and Exchange Agreement]
IN WITNESS WHEREOF, the Investor and the Company have caused their
respective signature page to this Agreement to be duly executed as of the date
first written above.
INVESTOR:
[INVESTOR]
By: _______________________________
Name:
Title:
EXHIBIT B
BRAVO! FOODS INTERNATIONAL CORP.
SECRETARY'S CERTIFICATE
-----------------------
The undersigned hereby certifies that he is the duly elected, qualified and
acting Secretary of Bravo! Foods International Corp., a Delaware corporation
(the "Company"), and that as such he is authorized to execute and deliver this
certificate in the name and on behalf of the Company and in connection with the
Amendment Agreements, dated as of August [_], 2006, by and among the Company and
each of Kings Road Investments Ltd., Evolution Master Fund Ltd. SPC Segregated
Portfolio M, Steelhead Investments Ltd., Capital Ventures International, Capital
Ventures International and Alpha Capital Anstalt (the "Amendment Agreement"),
and further certifies in his official capacity, in the name and on behalf of the
Company, the items set forth below. Capitalized terms used but not otherwise
defined herein shall have the meaning set forth in the Securities Purchase
Agreement, dated as of July 26, 2006, by and among the Company and the investors
listed on the Schedule of Buyers attached thereto.
1. Attached hereto as Exhibit A is a true, correct and complete copy of the
resolutions duly adopted by the Board of Directors of the Company by
unanimous written consent executed as of August [_], 2006 in lieu of a
special meeting of the Board of Directors with respect to the
authorization of the Amendment Agreement and the transactions contemplated
thereby. Such resolutions have not in any way been amended, modified,
revoked or rescinded, have been in full force and effect since their
adoption to and including the date hereof and are now in full force and
effect.
2. Attached hereto as Exhibit B is a true, correct and complete copy of the
Certificate of Incorporation of the Company, together with any and all
amendments thereto currently in effect, and no action has been taken to
further amend, modify or repeal such Certificate of Incorporation, the
same being in full force and effect in the attached form as of the date
hereof.
3. Attached hereto as Exhibit C is a true, correct and complete copy of the
Bylaws of the Company and any and all amendments thereto currently in
effect, and no action has been taken to further amend, modify or repeal
such Bylaws, the same being in full force and effect in the attached form
as of the date hereof.
4. Each person listed below has been duly elected or appointed to the
position(s) indicated opposite his name and is duly authorized to sign the
Amendment Agreement and each of the Transaction Documents on behalf of the
Company, and the signature appearing opposite such person's name below is
such person's genuine signature.
Name Position Signature
---- -------- ---------
[ ] Chief Executive Officer _________________________
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of this [_] day
of September, 2006.
_______________________________
[Name]
Secretary
I, [Name], [Title], hereby certify that [Name] is the duly elected, qualified
and acting Secretary of the Company and that the signature set forth above is
his true signature.
_______________________________
[Name]
[Title]
Exhibit A
Resolutions
Exhibit B
Certificate of Incorporation
Exhibit C
Bylaws
EXHIBIT C
BRAVO! FOODS INTERNATIONAL CORP.
OFFICER'S CERTIFICATE
---------------------
The undersigned, the Chief Executive Officer of Bravo! Foods International
Corp., a Delaware corporation (the "Company"), pursuant to Section 6(f) of the
Amendment Agreements, dated as of August [_], 2006, by and among the Company and
each of Kings Road Investments Ltd., Evolution Master Fund Ltd. SPC Segregated
Portfolio M, Steelhead Investments Ltd., Capital Ventures International, Capital
Ventures International and Alpha Capital Anstalt (the "Amendment Agreement"),
hereby represents, warrants and certifies to each of the Investors party thereto
as follows (capitalized terms used but not otherwise defined herein shall have
the meaning set forth in the Securities Purchase Agreement, dated as of July 26,
2006, by and among the Company and the investors listed on the Schedule of
Buyers attached thereto):
1. The representations and warranties made by the Company as set forth
in Section 3 of the Securities Purchase Agreement and each other
Transaction Document are true and correct in all material respects
(except for those representations and warranties that are qualified
by materiality or Material Adverse Effect, which shall be true and
correct in all respects) as of the date hereof (except for
representations and warranties that speak as of a specific date).
2. The Company has, in all material respects, performed or complied
with all covenants, agreements and conditions required to be
performed or complied with by it at or prior to the date hereof
under the Transaction Documents to the extent such performance or
compliance has not been waived.
3. No Event of Default (other than relating to any purported events of
default solely based upon the Company's failure to file its
Quarterly Report on Form 10-QSB for the quarter ended June 30, 2006
when due) has occurred and is continuing on the date hereof either
immediately before or after giving effect to the Amendment Agreement
in accordance with its terms.
IN WITNESS WHEREOF, the undersigned has executed this certificate this [_]
day of September 2006.
_______________________________
[Name]
Chief Executive Officer
