AMENDMENT NO. 1 TO AMENDMENT AND EXCHANGE AGREEMENT
AMENDMENT NO. 1, dated as of December 29, 2006 (the "AGREEMENT"), to
the Amendment and Exchange Agreement (the "COMMON EXCHANGE AGREEMENT", as
amended hereby, the "AMENDED COMMON EXCHANGE 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 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (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 Common Exchange Agreement.
WHEREAS:
A. The Investors have requested that the Company exchange an additional
two hundred thousand (200,000) shares of Common Stock of the Company (the
"ADDITIONAL COMMON SHARES") for thirty (30) shares of Additional Preferred Stock
(as defined below) (the "ADDITIONAL PREFERRED SHARES").
B. Concurrently herewith, the Company will file with the Secretary of
State of Delaware the certificate of designations for the Series B-1 Convertible
Preferred Stock of the Company (the "ADDITIONAL CERTIFICATE OF DESIGNATIONS") in
the form attached hereto as EXHIBIT A (together with any convertible preferred
shares issued in accordance with the terms thereof, the "ADDITIONAL PREFERRED
STOCK"), which Additional Preferred Stock shall be convertible into shares of
Common Stock (as converted, the "ADDITIONAL PREFERRED CONVERSION SHARES") in
accordance with the terms of the Additional Certificate of Designations.
C. The exchange of the Additional Common Shares for the Additional
Preferred Shares is being made in reliance upon the exemption from registration
provided by Section 3(a)(9) of the 1933 Act.
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. CERTIFICATE OF DESIGNATIONS; CONSENT
(a) On or prior to the date hereof, the Company shall file
the Additional Certificate of Designations with the Secretary of State of the
State of Delaware.
(b) On or prior to the date hereof, the Company shall have
delivered to the Investors the written consent of the board of directors of the
Company to the resolutions authorizing the transactions contemplated hereby in
the form previously provided to the Investors.
2. AMENDMENTS.
(a) SECURITIES PURCHASE AGREEMENT; REGISTRATION RIGHTS AGREEMENT.
The Amended Securities Purchase Agreement (as amended hereby, the "SECOND
AMENDED SECURITIES PURCHASE AGREEMENT") and the Amended Registration Rights
Agreement (as
amended hereby, the "SECOND AMENDED REGISTRATION RIGHTS AGREEMENT") shall each
be amended as of the date hereof as follows:
(i) All references to "Certificate of Designations" shall
include the Additional Certificate of Designations.
(ii) All references to "Common Exchange Agreement" shall
mean, the Amended Common Exchange Agreement.
(iii) All references to "Conversion Shares" shall include
the Additional Preferred Conversion Shares.
(iv) All references to "Common Shares" shall include
the Additional Common Shares.
(v) All references to "Preferred Shares" shall include
the Additional Preferred Shares.
(vi) All references to "Preferred Stock" shall include
the Additional Preferred Stock.
(vii) All references to "Registration Rights Agreement"
shall mean, the Second Amended Registration Rights Agreement.
(viii) All references to "Securities Purchase Agreement"
shall mean, the Second Amended Securities Purchase Agreement.
(ix) The defined term "Transaction Documents" is hereby
amended to include this Agreement and the Amended Certificate of
Designations.
(b) RATIFICATIONS. Except as otherwise expressly provided herein,
the Second Amended Securities Purchase Agreement, Second Amended Registration
Rights Agreement, the Amended Common Exchange 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.
3. REPRESENTATIONS AND WARRANTIES
(a) INVESTOR REPRESENTATIONS. Each Investor hereby represents
and warrants to the Company as set forth in SECTION 2 of the Second 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 Second 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 thereto and except for such
representations and warranties that are not true and correct as of the date
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hereof solely by virtue of the Stockholder Approval (as defined in the Note
Amendment Agreement) not being obtained as of the date hereof 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 hereof.
(c) HOLDING PERIOD. For the purposes of Rule 144, the
Company acknowledges that the holding period of the Additional Preferred Shares
and the shares of Common Stock issuable upon conversion of the Additional
Preferred Shares may be tacked onto the holding period of the Additional 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 Additional
Preferred Shares in reliance upon Rule 144, the Company agrees not to take a
position contrary to this Section 3(c).
4. MISCELLANEOUS.
(a) 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.
(b) 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.
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(c) HEADINGS. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy (for informational purposes only) to:
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
If to the Investors:
c/o Prentice Capital Management, LP
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Telephone: (▇▇▇)-▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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with a copy (for informational purposes only) to:
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, 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.
(j) 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
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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 No. 1 to the Amendment and Exchange
Agreement to be duly executed as of the date first written above.
COMPANY:
ASCENDIA BRANDS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
IN WITNESS WHEREOF, the Investors and the Company have caused
their respective signature page to this Amendment No. 1 to the Amendment and
Exchange Agreement to be duly executed as of the date first written above.
INVESTORS:
PRENCEN LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel of Prentice
Capital Management, LP,
its Manager
PRENCEN LENDING LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel of Prentice
Capital Management, LP,
its Manager