Exhibit 99.1
AMENDMENT AND EXCHANGE AGREEMENT
AMENDMENT AND EXCHANGE AGREEMENT (the "Agreement"), dated as of December
29, 2006, by and among Bravo! Brands Inc. (f/k/a/ Bravo! Foods International
Corp.), a Delaware corporation, with headquarters located at 11300 US Highway
#1, Suite 202, North Palm Beach, FL 33408 (the "Company"), and ___________ (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 (as
amended prior to the date hereof by the Amendment Agreements (as defined below),
the "Existing Securities Purchase Agreement"), pursuant to which, among other
things, the Investors purchased from the Company (i) Initial Notes (the
"Existing Initial Notes"), which are convertible into shares of the Company's
common stock, par value $0.001 per share (the "Common Stock"), (ii) Additional
Notes (as amended prior to the date hereof by the Amendment Agreements, the
"Additional Existing Notes", and together with the Initial Existing Notes, the
"Existing Notes"), which are convertible into shares of Common Stock (the
Existing Notes as converted, the "Existing Conversion Shares"), in accordance
with the terms thereof, (iii) Series A Warrants (the "Existing Series A
Warrants"), which are exercisable into shares of Common Stock (the "Existing
Series A Warrant Shares"), and (iv) Series B Warrants (the "Existing Series B
Warrants", and together with the Existing Series A Warrants, the "Existing
Warrants"), which are exercisable into shares of Common Stock (the "Existing
Series B Warrant Shares", and together with the Existing Series A Warrant
Shares, the "Existing Warrant Shares").
B. Contemporaneously with the execution and delivery of the Existing
Securities Purchase Agreement, the Company and the Investors entered into a
Registration Rights Agreement, dated as of July 26, 2006 (as amended prior to
the date hereof by the Amendment Agreements, the "Existing Registration Rights
Agreement"), pursuant to which the Company agreed to provide certain
registration rights with respect to the Registrable Securities (as defined in
the Existing Registration Rights Agreement) under the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations promulgated thereunder,
and applicable state securities laws.
C. On August 31, 2006, the Company entered into those certain amendment
agreements, by and between the Company and each of the Buyers, which amended
certain provisions of the Existing Securities Purchase Agreement, the Existing
Registration Rights Agreement and the Existing Additional Notes (the "Amendment
Agreements").
D. The Company and the Investor desire to enter into this Agreement,
pursuant to which, among other things, (i) the Company and the Investor shall
amend and restate all of such Investor's Existing Initial Notes for notes in the
form attached hereto as Exhibit A-1 (the "Amended and Restated Initial Notes")
which shall be convertible into Common Stock, (ii) the Company and the Investor
shall amend and restate all of such Investor's Existing Additional Notes for
notes in the form attached hereto as Exhibit A-2 (the "Second Amended and
Restated Additional Notes", and together with the Amended and Restated Initial
Notes, the "Amended and Restated Notes") which shall be convertible into Common
Stock (the Amended and Restated Notes as converted, the "Amended and Restated
Conversion Shares"), (iii) the Company and the Investor shall exchange all of
such Investor's Existing Series A Warrants for warrants in the form attached
hereto as Exhibit B-1 (the "Replacement Series A Warrants") which shall be
exercisable into shares of Common Stock (the "Replacement Series A Warrant
Shares"), (iv) the Company and the Investor shall exchange all of such
Investor's Existing Series B Warrants for warrants in the form attached hereto
as Exhibit B-2 (the "Replacement Series B Warrants", and together with the
Replacement Series A Warrants, the "Replacement Warrants") which shall be
exercisable into shares of Common Stock (the "Replacement Series B Warrant
Shares", and together with the Replacement Series A Warrant Shares, the
"Replacement Warrant Shares") and (v) the Company shall pay $_______ (the
"Registration Delay Payment Amount"), representing the projected Registration
Delay Payments (as defined in the Amended Registration Rights Agreement (as
defined below)) to be paid to the Investor on January 2, 2007 (the "Registration
Delay Payment Date") in accordance with Section 1(c) below, which otherwise (A)
have and will become payable to the Investor during the period commencing on the
Initial Filing Deadline (as defined in the Amended Registration Rights
Agreement) and ending on January 5, 2007 (the "Initial Filing Waiver Period")
with respect to any Filing Failure (as defined in the Amended Registration
Rights Agreement) occurring or continuing during the Initial Filing Waiver
Period, (B) have and will become payable to the Investor during the period
commencing on the Additional Filing Deadline (as defined in the Amended
Registration Rights Agreement) and ending on January 5, 2007 (the "Additional
Filing Waiver Period") with respect to any Filing Failure (as defined in the
Amended Registration Rights Agreement) occurring or continuing during the
Additional Filing Waiver Period, and (C) have and will become payable to the
Investor during the period commencing on the Initial Effectiveness Deadline (as
defined in the Amended Registration Rights Agreement) and ending on January 23,
2007 (the "Initial Effectiveness Waiver Period) with respect to any
Effectiveness Failure (as defined in the Amended Registration Rights Agreement)
occurring or continuing during the Initial Effectiveness Waiver Period.
E. The amendment and restatement of the Existing Notes for the Amended and
Restated Notes and the exchange of the Existing Warrants for the Replacement
Warrants is being made in reliance upon the exemption from registration provided
by Section 3(a)(9) of the 1933 Act.
F. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings ascribed to them in the Amended Securities Purchase
Agreement (as defined below).
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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 EXISTING NOTES AND EXCHANGE AND
ISSUANCE OF WARRANTS; REGISTRATION DELAY PAYMENTS; WAIVER.
(a) Amendment and Restatement of Existing Notes; Exchange of
Existing Warrants. 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 Notes
and its Existing Warrants and the Company shall issue and deliver to the
Investor (i) Amended and Restated Initial Notes in the same outstanding
principal amounts and with such accrued but unpaid interest as under the
Existing Notes on the Closing Date (as defined below), (ii) Second Amended and
Restated Additional Notes in principal amount equal to the product of (x) 125%
and (y) the same outstanding principal amounts and with such accrued but unpaid
interest as under the Existing Additional Notes on the Closing Date, (iii) the
Replacement Series A Warrants to acquire that number of Replacement Series A
Warrant Shares equal to the product of (x) 2.14706 (that is, 0.73 divided by
0.34) and (y) the number of shares of Common Stock issuable under the Existing
Series A Warrants issued to the Investor on the Closing Date (as defined in the
Existing Securities Purchase Agreement) pursuant the Existing Securities
Purchase Agreement and (iv) the Replacement Series B Warrants to acquire that
number of Replacement Series B Warrant Shares equal to the number of Amended and
Restated Conversion Shares issuable upon conversion of the Amended and Restated
Notes.
(b) Closing Date. The date and time of the Closing (the "Closing
Date") shall be 10:00 a.m., New York Time, on the date hereof, subject to
notification of satisfaction (or waiver) of the conditions to the Closing set
forth in Sections 5 and 6 below (or such later date as is mutually agreed to by
the Company and the Investor). The Closing shall occur on the Closing Date at
the offices of Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York
10022.
(c) Registration Delay Payments; Waiver. Subject to the receipt of
the Registration Delay Payment Amount on or before the Registration Delay
Payment Date by wire transfer of immediately available funds pursuant to the
wire instructions provided by the Investor, effective as of the Closing Date,
the Investor hereby waives any Event of Default (as defined in the Amended and
Restated Notes) arising solely by the Company's failure to pay Registration
Delay Payments with respect to (x) any Filing Failure occurring or continuing
during the Initial Filing Waiver Period, (y) any Filing Failure occurring or
continuing during the Additional Filing Waiver Period, and (z) any Effectiveness
Failure occurring or continuing during the Initial Effectiveness Waiver Period;
provided, however, that such waiver shall not apply to any Filing Failure
occurring or continuing after January 5, 2007 or any Effectiveness Failure
occurring or continuing after the January 23, 2007 and provided, further, that
such waiver shall be null and void in the event that the Registration Delay
Payment Amount is not received by the Investor on or before the Registration
Delay Payment Date. For the avoidance of doubt, an Effectiveness Failure shall
not constitute an Event of Default under the Amended and Restated Initial Notes
until March 9, 2007.
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(d) Waiver of Holder Optional Redemption Notice Default. Effective
as of the Closing Date and concurrently with the withdrawal by (x) _____________
of its Holder Option Redemption Notice delivered to the Company on December 11,
2006 (the "________ Redemption Notice") and (y) ___________________ of its
Holder Option Redemption Notice delivered to the Company on December 11, 2006
(the "_________ Redemption Notice"), the Investor hereby waives ab initio the
Events of Default arising under the Amended and Restated Additional Notes for
the Company's failure to pay (i) the Holder Option Redemption Price with respect
to the _______ Redemption Notice to ________________ on December 18, 2006 and
(ii) the Holder Option Redemption Price with respect to the __________
Redemption Notice to _______________ on December 18, 2006.
2. AMENDMENTS TO TRANSACTION DOCUMENTS.
(a) Existing Securities Purchase Agreement; Existing Registration
Rights Agreement; Other Transaction Documents. The Existing Securities Purchase
Agreement (as amended hereby, the "Amended Securities Purchase Agreement") and
the Existing Registration Rights Agreement (as amended hereby, the "Amended
Registration Rights Agreement") are hereby amended as follows:
(i) All references to "Initial Notes" shall mean, and are
hereby replaced with, the "Amended and Restated Initial Notes";
(ii) All references to "Initial Conversion Shares" shall mean,
and are hereby replaced with, the "Amended and Restated Initial
Conversion Shares";
(iii) All references to "Amended and Restated Additional
Notes" shall mean, and are hereby replaced with, the "Second Amended
and Restated Additional Notes";
(iv) All references to "Amended and Restated Additional
Conversion Shares" shall mean, and are hereby replaced with, the
"Second Amended and Restated Additional Conversion Shares";
(v) All references to "Conversion Shares" shall mean, and are
hereby replaced with, the "Amended and Restated Conversion Shares";
(vi) All references to "Warrants" shall mean, and are hereby
replaced with, the "Replacement Warrants";
(vii) All references to "Warrant Shares" shall mean, and are
hereby replaced with, the "Replacement Warrant Shares";
(viii) All references to "Securities Purchase Agreement" shall
mean, and are hereby replaced by "Amended Securities Purchase
Agreement."
(ix) All references to "Registration Rights Agreement" shall
mean, and are hereby replaced by "Amended Registration Rights
Agreement."
(x) All references to "Notes" shall mean, and are hereby
replaced by "Amended and Restated Notes."
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(xi) All references to "Bravo! Foods International Corp."
shall mean, and are hereby replaced by "Bravo! Brands Inc."
(xii) The defined term "Transaction Documents" is hereby
amended to include this Agreement., the Replacement Warrants, the
Amended and Restated Notes, the Amended Securities Purchase
Agreement and the Amended Registration Rights Agreement.
(b) Amendment to the Existing Securities Purchase Agreement.
Notwithstanding the provisions of Section 4(r) of the Existing Securities
Purchase Agreement, the Company and the Investor hereby agree that the "Company
Escrow Release Date" shall be deemed to have occurred on November 10, 2006.
3. REPRESENTATIONS AND WARRANTIES
(a) Investor Representations. The Investor hereby represents and
warrants to the Company as to Amended and Restated Notes, the Amended and
Restated Conversion Shares, the Replacement Warrants and the Replacement Warrant
Shares as set forth in Section 2 of the Amended Securities Purchase Agreement as
if such representations and warranties were made as of the date hereof (except
for representations and warranties that speak as of a specific date, which shall
remain true and correct as of such specific date) and set forth in their
entirety in this Agreement; provided, however, that the Company and the Investor
hereby agree that for purposes of the Investor's representations and warranties
set forth in Section 2(k) of the Amended and Restated Securities Purchase
Agreement, such representations and warranties are being made in this Section
3(a) as of the date hereof without regard to the execution and delivery of the
Amendment Agreements and the transactions contemplated thereby.
(b) Company Representations. The Company represents and warrants to
the Investor as set forth in Section 3 of the Amended Securities Purchase
Agreement as if such representations and warranties were made as of the date
hereof (except for representations and warranties that speak as of a specific
date, which shall remain true and correct as of such specific date) and set
forth in their entirety in this Agreement. Such representations and warranties
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, references therein to
"Closing Date" being deemed references to the Closing Date as defined in Section
1(b) above, and references to "the date hereof" being deemed references to the
date of this Agreement.
(c) No Event of Default. The Company represents and warrants to the
Investor that after giving effect to the terms of this Agreement and the Other
Agreements (as defined below), no Default or Event of Default (as defined in the
Notes) shall have occurred and be continuing as of the date hereof.
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(d) Holding Period. For the purposes of Rule 144, the Company
acknowledges that the holding period of (i) the Amended and Restated Notes
(including the corresponding Amended and Restated Conversion Shares) may be
tacked onto the holding period of the Existing Notes and (ii) the Replacement
Warrants (including the corresponding Replacement Warrant Shares) may be tacked
onto the holding period of the Existing Warrants (in the case of Cashless
Exercise (as defined in the Replacement Warrants)), and the Company agrees not
to take a position contrary to this Section 3(c). The Company's representation,
covenant and agreement set forth in this Section 3(d) shall be subject in all
respects to Rule 144 and other applicable securities laws, as may be in effect
from time to time.
4. FEES AND EXPENSES
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 performance of this Agreement.
The Company shall pay all stamp and other non-income taxes and duties levied in
connection with the issuance of the Amended and Restated Notes and of the
Replacement Warrants.
5. CONDITIONS TO COMPANY'S OBLIGATIONS HEREUNDER.
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 its
Existing Notes and Existing Warrants for cancellation or such other
documentation reasonably satisfactory to the Company that the Investor's
Existing Notes and Existing Warrants have been lost or destroyed.
(c) The representations and warranties of the Investor in
Section 3(a) hereof shall be true and correct 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 THE 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) Each of the Other Investors shall have (i) executed agreements
identical to this Agreement (the "Other Agreements"), (ii) satisfied or waived
all conditions to the closings contemplated by such agreements and (iii)
surrendered their Existing Notes and Existing Warrants for Amended and Restated
Notes and Replacement Warrants identical to the Amended and Restated Notes and
Replacement Warrants of the Investor hereunder.
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(c) The Company shall have delivered to the Company's transfer
agent, with a copy to the Investors, a letter stating that the Irrevocable
Transfer Agent Instructions dated July 26, 2006 shall also apply to the Amended
and Restated Notes and Replacement Warrant Shares.
(d) The Investor shall have received the opinion of Baker & McKenzie
LLP, the Company's outside counsel, dated as of the Closing Date, in
substantially the form of Exhibit C attached hereto.
(e) The Company shall have executed and delivered to the Investor
the Amended and Restated Notes and the Replacement Warrants being issued to the
Investor at the Closing.
(f) The Board of Directors of the Company shall have adopted
resolutions consistent with the transactions contemplated hereby.
(g) The Company shall have delivered to the Investor a certificate
evidencing the formation and good standing of the Company in such entity's
jurisdiction of formation issued by the Secretary of State (or comparable
office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certificate
evidencing the Company's qualification as a foreign corporation and good
standing issued by the Secretary of State (or comparable office) of each
jurisdiction in which the Company is required to be so qualified,, as of a date
within ten (10) days of the Closing Date.
(i) 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 Section 6(f) as adopted by the Company's
Board of Directors in a form reasonably acceptable to the Investor, (ii) the
Articles of Incorporation and (iii) the Bylaws, each as in effect at the
Closing, in the form attached hereto as Exhibit D.
(j) The representations and warranties of the Company in Section
3(b) shall be true and correct in all material 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, which shall
remain true and correct as of such 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. 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 D.
(k) The Company shall have obtained all governmental, regulatory or
third party consents and approvals, if any, necessary for the sale of the
Securities.
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7. MISCELLANEOUS.
(a) Disclosure of Transactions and Other Material Information. On or
before 8:30 a.m., New York City time, on the first 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 the Transaction Documents in the form required by the 1934 Act and attaching
the material Transaction Documents not previously filed (including, without
limitation, this Agreement (and all schedules to this Agreement), the form of
the Amended and Restated Notes and the form of Amended and Restated Warrants) 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 Investor 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 shall 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. No Investor
shall 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.
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(b) 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.
(c) 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.
(d) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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 Existing Securities Purchase Agreement.
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(j) 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! Brands Inc.
11300 US Highway 1
Suite 202
North Palm Beach, FL 33408
Telephone: (561) 625-1411
Facsimile: (561) 625-1413
Attention: Jeffrey J. Kaplan,
Chief Financial Officer
With a copy (for informational purposes only) to
Roy D. Toulan, Jr., Vice President, General Counsel
Copy to (for informational purposes only):
Baker & McKenzie LLP
1114 Avenue of the Americas
New York, NY 10036
Telephone: (212) 626-4100
Facsimile: (212) 310-1600
Attention: Martin E. Weisberg, Esq.
If to the Transfer Agent:
American Stock Transfer & Trust Company
6201 15th Avenue
Brooklyn, NY 11219
Telephone: (718) 921-8261
Facsimile: (718) 921-8337
Attention: Donna Ansbro or Jennifer Donovan
If to an Investor, to its address and facsimile number set forth on the
Securities Schedule attached hereto, with copies to such Investor's
representatives as set forth on the Securities Schedule attached hereto,
with a copy (for informational purposes only) to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Telephone: (212) 756-2000
Facsimile: (212) 593-5955
Attention: Eleazer N. Klein, Esq.
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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.
(k) 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 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.
(l) Independent Nature of Investor's Obligations and Rights. The
obligations of the Investor under this Agreement or any other 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 this Agreement or any other Transaction Document, and no
action taken by the Investor pursuant hereto, shall be deemed to constitute such
Investor and other Investors as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that such 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 this Agreement or any other
Transaction Document and the Company acknowledges that the Investors are not
acting in concert or as a group with respect to such obligations or the
transactions contemplated by Agreement and any other Transaction Document. The
Company and the Investor confirms 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.
11
(m) 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 terms,
conditions and transactions contemplated hereby, 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]
12
IN WITNESS WHEREOF, the Investor and the Company have caused
their respective signature page to this Amendment and Exchange Agreement to be
duly executed as of the date first written above.
COMPANY:
BRAVO! BRANDS INC.
By:
--------------------------
Name:
Title:
[Signature Page to Consent, Amendment and Exchange Agreement]
IN WITNESS WHEREOF, the Investors and the Company have caused their
respective signature page to this Amendment and Exchange Agreement to be duly
executed as of the date first written above.
INVESTOR:
By:
By:
--------------------------
Name:
Title:
[Signature Page to Consent, Amendment and Exchange Agreement]