Exhibit 99.2
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT, dated as of November 23, 2005 (this
"Contribution Agreement"), by and among Bravo! Foods International Corp.,
a Delaware corporation with headquarters located at 00000 X.X. Xxxxxxx 0,
Xxxxx 000 Xxxxx Xxxx Xxxxx, XX (the "Company"), and the investors listed on
the signature pages hereto (individually, an "Investor" and collectively,
the "Investors").
WHEREAS:
A. The Company and each of the Investors is a party to the
Securities Purchase Agreement (the "Securities Purchase"), dated as of the
date hereof, by and among the Company and the investors listed on the
signature pages thereto, including the Investors (the "Securities Purchase
Agreement").
B. The Company and each of the Investors desire to add provisions
relating to contribution to the Securities Purchase Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Contribution Agreement, and for other good and valuable consideration
the receipt and adequacy of which are hereby acknowledged, the Company and
the Investors agree as follows:
1. All capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to such terms in the Securities Purchase
Agreement.
2. In addition to the provisions of Section 6.4(a), (b) and
(c) thereto, the following provision shall be applicable to the Company and
each of the Investors as if the following provisions were contained in the
Securities Purchase Agreement as Section 6.4(d) thereto:
(d) Contribution. If a claim for indemnification under
Sections 6.4(a) or (b) is unavailable to an Indemnified Party
(by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Party in connection with
the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or
relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or
prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to
include, subject to the limitations set forth in Section
6.4(c), any reasonable attorneys' or other reasonable out-of-
pocket fees or expenses incurred by such party in connection
with any Indemnification Proceeding to the extent such party
would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to
such party in accordance with its terms.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section, no
Investor shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the proceeds actually
received by such Investor from the sale of the Registrable
Securities subject to the Indemnification Proceeding exceeds
the amount of any damages that such Investor has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying
Parties may have to the Indemnified Parties. Notwithstanding
anything to the contrary contained herein, no Investor shall be
liable for any Losses pursuant to this Section 6.4, whether
pursuant to indemnification or contribution, that is caused by
any other Investor. .
3. With respect to the Company and the Investors, this
Contribution Agreement shall be deemed to be a part of and governed by the
provisions of the Securities Purchase Agreement.
4. This Contribution Agreement may be executed in two or more
counterparts, all of which when taken together 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, it being understood
that both parties need not sign the same counterpart. In the event that
any signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if
such facsimile signature page were an original thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Contribution
Agreement to be duly executed by their respective authorized signatories as
of the date first indicated above.
BRAVO! FOODS INTERNATIONAL CORP.
By: _______________________________
Name:
Title:
Investor Signature Page
-----------------------
By its execution and delivery of this signature page, the undersigned
Investor hereby joins in and agrees to be bound by the terms and conditions
of the Contribution Agreement dated as of November 23, 2005 (the
"Contribution Agreement") by and among Bravo! Foods International Corp. and
the Investors (as defined therein), and authorizes this signature page to
be attached to the Contribution Agreement or counterparts thereof.
Name of Investor:
By: _______________________________
Name:
Title:
