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").
<PAGE>
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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<PAGE>
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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<PAGE>
(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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<PAGE>
(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
