AMENDMENT AND EXCHANGE AGREEMENT
AMENDMENT AND EXCHANGE AGREEMENT (the "AGREEMENT"), dated as of
December 27, 2006, by and among Ascendia Brands, Inc. (f/k/a Cenuco, Inc.), a
Delaware corporation, with headquarters located at 000 Xxxxxxxx Xxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxxx, XX 00000 (the "COMPANY"), Prencen Lending LLC, a Delaware
limited liability company (the "DEBT INVESTOR") and Prencen LLC, a Delaware
limited liability company (the "EQUITY INVESTOR", and collectively with the Debt
Investor, the "INVESTORS"). Capitalized terms not defined herein shall have the
meaning as set forth in the Amended Securities Purchase Agreement (as defined
below).
WHEREAS:
A. The Company and the Investors have entered into (i) that certain
Second Amended and Restated Securities Purchase Agreement, dated as of June 30,
2006 (as amended prior to the date hereof, the "EXISTING SECURITIES PURCHASE
AGREEMENT") and (ii) that certain Amended and Restated Registration Rights
Agreement, dated as of August 2, 2006 (as amended prior to the date hereof, the
"EXISTING REGISTRATION RIGHTS AGREEMENT").
B. Pursuant to that certain stock purchase agreement, dated as of June
30, 2006 (the "STOCK PURCHASE AGREEMENT") between Xxxxxx Xxxxxxxxx and Xxxx
Xxxxxxxxx and the Equity Investor, the Equity Investor acquired Three Million,
Three Hundred and Twenty Two Thousand, Four Hundred and Eighty Two (3,322,482)
shares of common stock, par value $0.001 (the "COMMON STOCK") of the Company.
C. The Company has authorized a new series of convertible preferred
stock of the Company designated as Series B Convertible Preferred Stock, the
terms of which are set forth in the certificate of designations for such series
of preferred shares (the "CERTIFICATE OF DESIGNATIONS") in the form attached
hereto as EXHIBIT A (together with any convertible preferred shares issued in
replacement thereof in accordance with the terms thereof, the "PREFERRED
STOCK"), which Preferred Stock shall be convertible into shares of Common Stock
(as converted, the "PREFERRED CONVERSION SHARES") in accordance with the terms
of the Certificate of Designations.
D. The Company and the Investors desire to enter into this Agreement,
pursuant to which, among other things, (i) the Equity Investor shall exchange
two million (2,000,000) shares of Common Stock (the "COMMON SHARES") for 300
shares of Preferred Stock (the "PREFERRED SHARES") and (ii) the Investors shall
waive their right to receive all Registration Delay Payments (as defined in the
Existing Registration Rights Agreement) accrued and unpaid as of the Closing
Date (as defined below) (the "OUTSTANDING REGISTRATION DELAY PAYMENTS").
E. The exchange of the Common Shares for the Preferred Shares is being
made in reliance upon the exemption from registration provided by Section
3(a)(9) of the 1933 Act.
F. In connection herewith, the Company and the Investors anticipate
entering into that certain Amendment Agreement in the form attached hereto as
EXHIBIT G (the "NOTE AMENDMENT AGREEMENT"), whereby the Senior Secured
Convertible Note of the Company
issued to the Debt Investor shall be amended and restated in the form of the
Amended and Restated Senior Secured Convertible Note attached thereto (the
"AMENDED NOTE").
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the Company and the Investors hereby
agree as follows:
1. EXCHANGE AND ISSUANCE OF PREFERRED SHARES.
(a) EXCHANGE AND ISSUANCE OF PREFERRED SHARES. Subject to
satisfaction (or waiver) of the conditions set forth in Sections 5 and 6 below,
(i) the Equity Investor shall surrender to the Company at the closing
contemplated by this Agreement (the "CLOSING") the Common Shares of the Equity
Investor and (ii) the Company shall issue and deliver to the Equity Investor the
Preferred Shares.
(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 Investors). 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; WAIVER; CONSENT.
(a) EXISTING SECURITIES PURCHASE AGREEMENT. The Existing
Securities Purchase Agreement (as amended hereby, the "AMENDED SECURITIES
PURCHASE AGREEMENT") shall be amended as of the Closing as follows:
(i) All references to "Xxxxxxxxx Shares" shall mean, and
are hereby replaced with, the "Xxxxxxxxx Shares held by the Investors
immediately following the Common Exchange Date (as defined below) and
the Preferred Conversion Shares (as defined in that certain Amendment
and Exchange Agreement, dated as of December 27, 2006, by and between
the Company and the Buyers (the "Common Exchange Agreement")";
(ii) The defined term "Common Exchange Date" shall mean
the Closing Date (as defined in the Common Exchange Agreement).
(iii) All references to "Conversion Shares" shall mean, and
are hereby replaced with, the "Conversion Shares and the Preferred
Conversion Shares";
(iv) All references to "Notes" shall mean, and are hereby
replaced with, the "Notes and Preferred Shares (as defined in the
Common Exchange Agreement)";
(v) All references to "Registration Rights Agreement"
shall mean, the Amended Registration Rights Agreement.
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(vi) The defined term "Securities" is hereby amended
to include "the Preferred Shares and the Preferred Conversion Shares";
(vii) All references to "Securities Purchase Agreement"
shall mean, the Amended Securities Purchase Agreement.
(viii) The defined term "Transaction Documents" is hereby
amended to include this Agreement and the Certificate of Designations.
(ix) Section 4(t) of the Existing Securities Purchase
Agreement is hereby amended and restated as follows:
(t) NOMINATION OF PRENTICE DIRECTOR. For so long as Prentice
or any of its affiliates owns (x) at least $5,000,000 in
aggregate principal amount of the Notes outstanding, (y) at
least $5,000,000 of stated value of any preferred stock of the
Company issued by the Company in exchange for the Note,s or
(z) at least 25% of the Series A Warrants purchased by
Prentice or its affiliates, as applicable, and subject to
limitations, if any, imposed by stock exchange rules in effect
from time to time, the Company agrees to cause one (1) person
designated by Prentice to be nominated for election at every
meeting of the stockholders of the Company called with respect
to the election of members of the board of directors of the
Company, and at every adjournment or postponement thereof, and
on every action or approval by written consent of the
stockholders or the board of directors with respect to the
election of members of the board of directors of the Company
so that at any time there shall be one (1) director designated
by Prentice in the board of directors of the Company. Should a
person designated pursuant to this Section 4(t) be unwilling
or unable to serve, or otherwise cease to serve, the Company
shall cause one (1) person designated by Prentice to replace
such member on the board of directors. If Prentice desires to
remove any person designated by Prentice pursuant to this
Section 4(t), the Company shall cooperate with and shall
support such removal and any vacancy shall be filled in
accordance with the preceding sentence.
(b) EXISTING REGISTRATION RIGHTS AGREEMENT. The Existing
Registration Rights Agreement shall be amended and restated as of the Closing in
the form attached hereto as EXHIBIT B (as amended, the "AMENDED REGISTRATION
RIGHTS AGREEMENT").
(c) RATIFICATIONS. Except as otherwise expressly provided
herein, (i) the Amended Securities Purchase Agreement, Amended Registration
Rights Agreement and each other Transaction Document 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
Transaction Documents to the "Securities Purchase Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Securities
Purchase Agreement shall mean the Existing Securities Purchase Agreement as
amended by this Agreement, and (B) all references in the other Transaction
Documents to the "Registration Rights Agreement",
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"thereto", "thereof", "thereunder" or words of like import referring to the
Registration Rights Agreement shall mean the Existing 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 Debt Investor or the Equity Investor under any
Transaction Document, nor constitute an amendment of any provision of any
Transaction Document.
(d) WAIVER. Effective as of the Closing Date, the Investors
hereby waive the right to receive the Outstanding Registration Delay Payments;
provided, however, that such waiver shall only apply to the Outstanding
Registration Delay Payments and shall not apply to any Registration Delay
Payments incurred after the Closing Date.
(e) CONSENT. The Debt Investor hereby consents to (i) the
amendments set forth in this Agreement and (ii) the consummation of the
transactions contemplated hereby, in each case, as required by the terms of the
Note (as defined in the Amended Securities Purchase Agreement).
3. REPRESENTATIONS AND WARRANTIES
(a) INVESTOR REPRESENTATIONS. Each Investor hereby represents
and warrants to the Company 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 and set forth in their entirety in this Agreement.
(b) COMPANY REPRESENTATIONS. The Company represents and warrants
to each 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 and set forth in their entirety in this Agreement, except as set forth on
the Schedules of the Company attached hereto and except for such representations
and warranties that are not true and correct as of the date hereof solely by
virtue of the Stockholder Approval (as defined in the Note Amendment Agreement)
not being obtained as of the Closing Date and the amendments to the certificate
of incorporation of the Company not having been filed with the Secretary of
State of Delaware to effectuate the amendments specified in clauses (x) and (y)
of Section 7(b)(ii) of the Note Amendment Agreement as of the Closing Date.
(c) HOLDING PERIOD. For the purposes of Rule 144, the
Company acknowledges that the holding period of the Preferred Shares and the
shares of Common Stock issuable upon conversion of the Preferred Shares may be
tacked onto the holding period of the Common Shares being exchanged in
connection herewith and, so long as the Company receives a legal opinion in a
generally acceptable form in connection with a resale of the shares of Common
Stock issuable upon conversion of the Preferred Shares in reliance upon Rule
144, the Company agrees not to take a position contrary to this Section 3(c).
4. FEES AND EXPENSES
(a) At the Closing, the Company shall reimburse the Investors for
their reasonable legal fees and expenses in connection with the preparation and
negotiation of this Agreement and the related documents by paying such amount to
Xxxxxxx Xxxx & Xxxxx LLP (the
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"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 performance of
this Agreement. The Company shall pay all stamp and other non-income taxes and
duties levied in connection with the issuance (but not the exercise or
conversion) of the Preferred Shares.
5. CONDITIONS TO COMPANY'S OBLIGATIONS HEREUNDER.
The obligations of the Company to each 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 such Investor with prior written
notice thereof:
(a) Each Investor shall have executed this Agreement and
delivered the same to the Company.
(b) The Equity Investor shall have delivered to the Company its
Common Shares for cancellation or such other documentation reasonably
satisfactory to the Company that such Equity Investor's Common Shares have been
lost or destroyed.
(c) The representations and warranties of the Investors 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). The Company shall have received a
certificate of the Investors, dated as of the Closing Date, to the foregoing
effect and as to such other matters as may be reasonably requested by the
Company in the form attached hereto as EXHIBIT F-1.
6. CONDITIONS TO THE INVESTORS' OBLIGATIONS HEREUNDER.
The obligations of each Investor hereunder is subject to the
satisfaction of each of the following conditions, provided that these conditions
are for each Investor's sole benefit and may be waived by such 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 such Investor.
(b) Such Investor shall have received the opinion of Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP, the Company's outside counsel, dated as of the
Closing Date, in substantially the form of EXHIBIT C attached hereto.
(c) The Company shall have executed and delivered to the
Equity Investor the Preferred Shares being issued to the Equity Investor at the
Closing.
(d) The Company shall have delivered to such Investor a
certificate, executed by the Secretary of the Company and dated as of the
Closing Date, as to (x) the resolutions as adopted by the Company's board of
directors in a form reasonably acceptable to
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the Investors, (y) the Certificate of Incorporation and (z) the Bylaws, each as
in effect at the Closing, in the form attached hereto as EXHIBIT D.
(e) The Company shall have delivered to such Investor a copy
of the Irrevocable Transfer Agent Instructions, in the form of EXHIBIT E
attached hereto, which instructions shall have been delivered to and
acknowledged in writing by the Company's transfer agent.
(f) The Company shall have delivered to such Investor a
certificate evidencing the formation and good standing of the Company and each
of its Subsidiaries in each such entity's jurisdiction of formation issued by
the Secretary of State (or equivalent) of such jurisdiction of formation as of a
date within ten (10) days of the Closing Date.
(g) The Company shall have delivered to such Investor a certified
copy of the Certificate of Incorporation of the Company as certified by the
Secretary of State of the State of Delaware within ten (10) days of the Closing
Date.
(h) The Certificate of Designations in the form attached as
EXHIBIT A shall have been filed on or prior to the Closing Date with the
Secretary of State of the State of Delaware and shall be in full force and
effect, enforceable against the Company in accordance with its terms and shall
not have been amended.
(i) The representations and warranties of the Company in
SECTION 3(B) shall be true and correct as of the date when made and as of the
Closing Date as though made at that time (except (x) for representations and
warranties that shall not be true and correct as of the date when made and/or as
of the Closing Date as though made at that time, in each case solely by virtue
of the Stockholder Approval not being obtained as of the date when made and/or
as of the Closing Date and the amendments to the certificate of incorporation of
the Company not having been filed with the Secretary of State of Delaware to
effectuate the amendments specified in clauses (x) and (y) of Section 7(b)(ii)
of the Note Amendment Agreement as of the date when made and/or as of the
Closing Date and (y) for representations and warranties that speak as of a
specific date) and the Company shall have performed, satisfied and complied in
all 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 (except for any breach of any such covenants or
agreements solely by virtue of the Stockholder Approval not being obtained at or
prior to the Closing Date and the amendments to the certificate of incorporation
of the Company not having been filed with the Secretary of State of Delaware to
effectuate the amendments specified in clauses (x) and (y) of Section 7(b)(ii)
of the Note Amendment Agreement at or prior to the Closing Date). Such 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 such Investor in the form
attached hereto as EXHIBIT F-2.
(j) The Company shall have obtained all governmental, regulatory
or third party consents and approvals, if any, necessary for the issuance of the
Preferred Shares and the Preferred Conversion Shares.
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7. MISCELLANEOUS.
(a) DISCLOSURE OF TRANSACTIONS AND OTHER MATERIAL INFORMATION.
On or before 5:30 p.m., New York time, on the fourth 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 not previously filed (including, without
limitation, the form of this Agreement and the form of the Certificate of
Designations) as exhibits to such filing (including all attachments, the "8-K
FILING"). From and after the earlier to occur of (i) the fourth Business Day
following the consummation of the Acquisition and (ii) sixty (60) calendar days
after the Closing Date (the "DISCLOSURE DEADLINE"), 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 or other public filings by the
Company with the SEC prior to the Disclosure Deadline. 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 any 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 such Investor. If an 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, an
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. The Company and the Investors shall work together to adopt
procedures designed to ensure that material non-public information is not
disclosed to the Investors without its consent. Subject to the foregoing,
neither the Company, its Subsidiaries nor any 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 any Investor, to make any press release or other
public disclosure with respect to such transactions (x) in substantial
conformity with the 8-K Filing and contemporaneously therewith and (y) as is
required by applicable law and regulations (provided that in the case of clause
(y) each 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 any applicable Investor, neither the Company nor any of
its Subsidiaries or affiliates shall disclose the name of such Investor in any
filing, announcement, release or otherwise. Notwithstanding the foregoing, (I)
in the event that the Equity Investor is deemed a director by deputization by
virtue of the rights set forth in Section 4(t) of the Amended Securities
Purchase Agreement, the restrictions set forth in this Section 7(a) shall not
apply to the provision of information in the ordinary course to such director
and the rights of the Equity Investor and its affiliates to disclose any
material non-public information received by such director as set forth in this
Section 7(a) shall not apply and (II) in the event any Investor receives
material non-public
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information it solicited from any employee, officer or director of the Company
or any of its Subsidiaries the rights of such Investor and its affiliates to
disclose any material non-public information received by such director as set
forth in this Section 7(a) shall not apply.
(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
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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. The Company shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the holders of at
least a majority of the aggregate number of Registrable Securities issued and
issuable hereunder, including by way of a Fundamental Transaction (as defined in
the Notes) (unless the Company is in compliance with the applicable provisions
governing Fundamental Transactions set forth in the Notes, Warrants and
Certificate of Designations). Each Investor may assign some or all of its rights
hereunder without the consent of the Company in connection with a transfer by
such Investor of any of the Securities, in which event such assignee shall be
deemed to be an Investor hereunder with respect to such assigned rights.
(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:
Ascendia Brands, Inc.
000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
With a copy (for informational purposes only) to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
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If to the Investors:
c/o Prentice Capital Management, LP
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000)-000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx
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.
(k) REMEDIES. Each 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 Investors. The Company
therefore agrees that the Investors 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.
[SIGNATURE PAGE FOLLOWS]
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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.
COMPANY:
ASCENDIA BRANDS, INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
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.
INVESTORS:
PRENCEN LLC
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: General Counsel of Prentice
Capital Management, LP,
its Manager
PRENCEN LENDING LLC
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: General Counsel of Prentice
Capital Management, LP,
its Manager
