AMENDMENT AGREEMENT
EXHIBIT
4.9
This
amendment agreement (the “Agreement”) is made as of December 17, 2008, by and
between Javo Beverage Company, Inc. and the parties as are listed on Exhibit A
hereto.
RECITALS
WHEREAS,
Javo Beverage Company, Inc. (the “Company”) entered into that certain Securities
Purchase Agreement dated as of December 14, 2006, pursuant to which the Company
issued on December 15, 2006, senior convertible notes comprising an original
aggregate principal amount of $21,000,000.76 (the “Notes”), and Series A, B,
& C warrants (collectively, the “Warrants”) as currently held by the parties
listed on Exhibit A (the “Holders”), and contemporaneously entered into a
registration rights agreement, dated as of December 15, 2006, (the “RRA” and the
documents evidencing the foregoing transaction referred to collectively as the
“Transaction Documents”).
WHEREAS,
the Company and the Holders wish to amend the Notes and agree to certain other
terms and conditions as provided herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual obligations in this Agreement the
parties hereto agree as follows:
1. The
Notes shall be amended as follows:
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1.1.
Negotiated
Redemption. The Notes shall be amended to add a new Section 32 as
follows:
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(32)
NEGOTIATED REDEMPTION
AT THE COMPANY’S ELECTION.
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a.
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General.
Beginning on December 12, 2008, through and including January 31, 2009
(the “Negotiated Redemption Period”), the Company shall have the right to
redeem all or any portion of the Notes then outstanding pursuant to this
Section 32 pro rata among the Holders (any such redemption a “Negotiated
Redemption”). The portion of the Notes subject to redemption pursuant to
this Section 32 shall be redeemed by the Company in cash only at a price
equal to (i) 72% (the “Negotiated Principal Percentage”) of the principal
amount being redeemed (the “Redeemed Principal”) plus (ii) any accrued and
unpaid interest on the Redeemed Principal. For any Negotiated Redemption,
the percentage of outstanding principal redeemed as expressed by the
Redeemed Principal divided by the then outstanding principal shall be
referred to as the “Negotiated Redemption Percentage.” The Holders agree
that in no event shall any Series C Warrants become exercisable as a
result of a Negotiated Redemption. In the event that, upon the expiration
of the Negotiated
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Redemption
Period, the Company has made aggregate Negotiated Redemptions of less than 50%
of the aggregate principal outstanding under the Notes as of December 11, 2008,
then the aggregate principal amount redeemed shall be decreased such that the
Negotiated Principal Percentage shall equal 77% instead of 72%; provided further
that the Negotiated Redemption Period shall be extended by thirty (30) days and
any additional Negotiated Redemptions during such extended period shall be
priced at such increased Negotiated Principal Percentage of 77%.
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b.
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Minimum Negotiated
Redemption by Company. On or before December 31, 2008, the Company
shall redeem a minimum of 10% of the aggregate principal of the Notes
outstanding as of December 12, 2008, pro rata among the Holders pursuant
to this Section 32 (the “Minimum Redemption”). As to such Minimum
Redemption only and provided that the Negotiated VWAP as defined below is
equal to or greater than $0.05, the Holder may, at its sole option, elect
in writing to the Company to receive the Negotiated Redemption Payment in
the form of Common Stock in lieu of cash subject to the provisions below
in Section 32c. In the event that the Company fails to pay the Minimum
Redemption when due, then any principal amount redeemed pursuant hereto
prior to such failure shall be reduced such that the Negotiated Principal
Percentage is 95% and any subsequent Negotiated Redemptions to the extent
in satisfaction of the Minimum Redemption shall be priced at such 95%
Negotiated Principal Percentage.
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c.
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Notices and
Payment/Delivery. For any Negotiated Redemption in full or partial
satisfaction of the Minimum Redemption, the Company shall provide not less
than 5 Business Days prior notice of the planned redemption to the
Holders; provided that
the final such notice in satisfaction of the Minimum Redemption shall be
delivered on or before December 22, 2008 (any such notice a “Minimum
Redemption Notice”). On or before the fourth Business Day following
delivery of a Minimum Redemption Notice by the Company, each of the
Holders shall notify the Company of its election, to the extent
applicable, to receive payment in the form of Common Stock. If no notice
is delivered in writing, payments shall be made in cash. Common Stock
required to be delivered pursuant to a Negotiated Redemption shall be
delivered on or before the sixth Business Day following delivery of a
Minimum Redemption Notice and shall be valued at a per share price equal
to the arithmetic average of the Weighted Average Price of the Common
Stock on each of the twenty (20) consecutive Trading Days ending two (2)
Trading Days prior to the date of delivery by the Company of such Minimum
Redemption Notice (the “Negotiated VWAP”). Negotiated Redemptions to be
paid in the form of cash shall be due as to the Minimum Redemption on or
before December 30, 2008, and as to all other Negotiated Redemptions, on
or before January 31, 2009. For Negotiated Redemptions to be paid in the
form of Common Stock, such Common Stock shall be due and delivered on or
before December 30, 2008, to each Holder for which the Company would be,
pursuant to Section 9(f) of the Securities Purchase Agreement, deemed to
have received notice on or before December 26, 2008, of such election to
receive Common Stock.
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1.2.
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Permitted
Redemption. The following shall be inserted at the end of the last
sentence of Section 16(e) of the Notes: “; provided
further that the Company may repurchase or redeem any or all of the
Notes or Warrants with the written consent of the Required Holders
provided that such redemption is offered on a pro-rata basis among all
Holders upon the same terms and
conditions.”
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1.3.
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Investor Put.
The Holder Optional Conversion/Redemption Period in Section 10 of the
Notes shall be changed from “January 1, 2010, through and including March
1, 2010”, to “April 1, 2010, through and including June 1,
2010”.
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1.4.
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January 1, 2009,
Installment Date. The following sentence shall be inserted at the
end of Section 8(a) of the Notes: “Notwithstanding anything in the Notes
to the contrary, as to the Installment Amounts due on January 1, 2009, and
February 1, 2009, only, the Company may elect to pay such Installment
Amounts in the form of Common Stock as a Company Conversion pursuant to
Section 8 of the Notes; provided that the minimum required average Volume
Weighted Average Price as provided above in this Section 8(a) for any such
Company Conversion shall be $0.05 instead of
$0.60.”
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2.
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Waiver of Right of
Participation. During the Negotiated Redemption Period, the Holders
agree to waive their rights and the Company’s obligations pursuant to
Section 4(n)(iii) of the Securities Purchase
Agreement.
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3.
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Waiver of
Anti-dilution. During the Negotiated Redemption Period, as defined
in the Notes, as amended, the Holders agree to waive their rights and the
Company’s obligations pursuant to Section 2 of the Warrants and Section 7
of the Notes, subject to the following; (i) to the extent that any Notes
or Warrants remain outstanding following the Negotiated Redemption Period,
the provisions waived by this Section 3 shall be applied retroactively for
the period of waiver as to such remaining Notes or Warrants.
Notwithstanding anything in this Section 3 to the contrary, at any time
during the Negotiated Redemption Period, in the event that a Warrant
holder elects to exercise all or part of its Warrants, the provisions
waived hereby shall be applied retroactively to the extent
exercised.
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4.
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Warrant
Purchase. For each Negotiated Redemption the Company makes pursuant
to the Note as amended above, the Company agrees to simultaneously
purchase and the Holders agree to simultaneously sell a number of their
Warrants (pro rata across the Series A, B & C Warrants) equal to the
Negotiated Redemption Percentage multiplied by the number of each Series
of Warrant held. As to each Holder, the purchase price for all Series of
Warrants purchased in the aggregate pursuant hereto shall be an amount
equal to 5% of the Redeemed Principal multiplied by such Holder’s pro rata
share of the aggregate principal of the Notes. By way of illustration
only, if the Company redeemed 50% of an aggregate outstanding principal
amount of the Notes of $12,000,000 for a payment of $4,320,000 (72% of
$6,000,000), then the Company would simultaneously purchase 50% of each of
the Series A, B & C Warrants for an amount equal to 5% of $6,000,000
or $300,000. Any purchase price for Warrants due hereunder shall be due
and payable by the Company to the respective Holders concurrently with the
payment of the Negotiated Redemption price that triggers such Warrant
purchase. Provided further, that to the extent any Negotiated Redemption
is due in Common Stock, the Warrant purchase price shall also be due in
Common Stock.
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5. Miscellaneous.
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5.1.
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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 City of New
York, Borough of Manhattan, 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. 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 WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED
HEREBY.
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5.2.
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Counterparts.
This Agreement may be executed in two or more identical counterparts, all
of which shall be considered one and the same agreement; 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.
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5.3.
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Effectiveness.
Pursuant to the Notes and the Warrants, this Agreement shall serve as
written consent of and be effective as to and binding on all Holders upon
execution by Holders representing at least 2/3rds of the aggregate
principal currently outstanding under all Notes and as to the Warrants
upon execution by Holders representing at least the majority of Common
Stock underlying the Warrants currently
outstanding.
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5.4.
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Definitions.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings set forth in the Transaction
Documents.
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5.5.
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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 any 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.
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5.6.
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Waiver of
Default. The Holders hereby agree that the negotiation, entering
into, and performance of this Agreement does not and shall not constitute
a default or event of default under the Transaction Documents including
without limitation a breach of the covenants in Section 12:
Noncircumvention of the Notes and Section
5: Noncircumvention of the Warrants. The Holders hereby waive any defaults
or events of default under the Transaction Documents by the Company known
to them as of the date
hereof.
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5.7.
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Entire Agreement;
Amendments. This Agreement supersedes all other prior oral or
written agreements between the Buyers, the Company, their affiliates and
Persons acting on their behalf with respect to the matters discussed
herein, and this Agreement contains the entire understanding of the
parties with respect to the matters covered herein and, except as
specifically set forth herein, none of the parties makes any
representation, warranty, covenant or undertaking with respect to such
matters. To the extent that this Agreement conflicts with any of the
provisions of the Transaction Documents, this Agreement shall prevail. No
provision of this Agreement may be amended other than by an instrument in
writing signed by the parties hereto. No provision hereof may be waived
other than by an instrument in writing signed by the party against whom
enforcement is sought.
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5.8.
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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.
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5.9.
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Headings.
The headings of this Agreement are for convenience of reference and shall
not form part of, or affect the interpretation of, this
Agreement.
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[Signature
Page Follows]
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IN
WITNESS WHEREOF, the undersigned Holders and the Company have caused their
respective signature page to this Amendment Agreement to be duly executed as of
the date first written above.
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COMPANY:
JAVO
BEVERAGE COMPANY, INC.
By: /s/ Xxxx X.
Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title: Chairman
& CEO |
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IN
WITNESS WHEREOF, the undersigned Holders and the Company have caused their
respective signature page to this Amendment Agreement to be duly executed as of
the date first written above.
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HOLDERS:
CAPITAL
VENTURES INTERNATIONAL
By: /s/ Xxxxxx
Xxxxxxxx
Name:
Xxxxxx Xxxxxxxx
Title: Investment
Manager |
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IN
WITNESS WHEREOF, the undersigned Holders and the Company have caused their
respective signature page to this Amendment Agreement to be duly executed as of
the date first written above.
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HOLDERS:
FORT
XXXXX MASTER, LP
FORT
XXXXX PARTNERS, LP
By: /s/ Xxx
German
Name:
Xxx German
Title:
Managing Member,
Fort Xxxxx Capital, LLC |
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IN WITNESS
WHEREOF, the undersigned Holders and the Company have caused their
respective signature page to this Amendment Agreement to be duly executed as of
the date first written above.
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HOLDERS:
ENABLE
GROWTH PARTNERS, LP
ENABLE
OPPORTUNITY PARTNERS, XX
XXXXXX
DIVERSIFIED STRATEGY MASTER FUND, LLC
By:
/s/ Xxxxxxx
X'Xxxx
Name: Xxxxxxx X’Xxxx
Title: President and
CIO |
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Exhibit
A
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Holder
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%
of Aggregate Principal of the Notes
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Capital
Ventures International LP
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28.57%
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Fort
Xxxxx Master, LP
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24.60%
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Fort
Xxxxx Partners, LP
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1.59%
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JGB
Capital Offshore, Ltd.
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5.95%
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JGB
Capital, LP
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5.95%
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Xxxxxxx
International Fund, Ltd.
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5.95%
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Xxxxxxx
Capital Management, XX XX
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5.95%
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Enable
Growth Partners LP
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18.21%
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Enable
Opportunity Partners LP
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2.14%
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Xxxxxx
Diversified Strategy Master Fund LLC
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1.07%
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