javo_10k-ex0409.htm


    EXHIBIT
4.9

     

    AMENDMENT
AGREEMENT

     

    This
amendment agreement (the “Agreement”) is made as of December 17, 2008, by and
between Javo Beverage Company, Inc. and the parties as are listed on Exhibit A
hereto.

     

    RECITALS

     

    WHEREAS,
Javo Beverage Company, Inc. (the “Company”) entered into that certain Securities
Purchase Agreement dated as of December 14, 2006, pursuant to which the Company
issued on December 15, 2006, senior convertible notes comprising an original
aggregate principal amount of $21,000,000.76 (the “Notes”), and Series A, B,
& C warrants (collectively, the “Warrants”) as currently held by the parties
listed on Exhibit A (the “Holders”), and contemporaneously entered into a
registration rights agreement, dated as of December 15, 2006, (the “RRA” and the
documents evidencing the foregoing transaction referred to collectively as the
“Transaction Documents”).

     

    WHEREAS,
the Company and the Holders wish to amend the Notes and agree to certain other
terms and conditions as provided herein.

     

    AGREEMENT

     

    NOW,
THEREFORE, in consideration of the mutual obligations in this Agreement the
parties hereto agree as follows:

     

    1. The
Notes shall be amended as follows:

     

    
      	
               
      

            	
              1.1.
      Negotiated
      Redemption. The Notes shall be amended to add a new Section 32 as
      follows:

            


    

     

    (32)
NEGOTIATED REDEMPTION
AT THE COMPANY’S ELECTION.

    
      	
               
      

            	
              a.

            	
              General.
      Beginning on December 12, 2008, through and including January 31, 2009
      (the “Negotiated Redemption Period”), the Company shall have the right to
      redeem all or any portion of the Notes then outstanding pursuant to this
      Section 32 pro rata among the Holders (any such redemption a “Negotiated
      Redemption”). The portion of the Notes subject to redemption pursuant to
      this Section 32 shall be redeemed by the Company in cash only at a price
      equal to (i) 72% (the “Negotiated Principal Percentage”) of the principal
      amount being redeemed (the “Redeemed Principal”) plus (ii) any accrued and
      unpaid interest on the Redeemed Principal. For any Negotiated Redemption,
      the percentage of outstanding principal redeemed as expressed by the
      Redeemed Principal divided by the then outstanding principal shall be
      referred to as the “Negotiated Redemption Percentage.” The Holders agree
      that in no event shall any Series C Warrants become exercisable as a
      result of a Negotiated Redemption. In the event that, upon the expiration
      of the Negotiated

            


    

     


    
      
         


      

      
        -1-

        
          

        

      

      
         


      

    

     

    
      Redemption
Period, the Company has made aggregate Negotiated Redemptions of less than 50%
of the aggregate principal outstanding under the Notes as of December 11, 2008,
then the aggregate principal amount redeemed shall be decreased such that the
Negotiated Principal Percentage shall equal 77% instead of 72%; provided further
that the Negotiated Redemption Period shall be extended by thirty (30) days and
any additional Negotiated Redemptions during such extended period shall be
priced at such increased Negotiated Principal Percentage of 77%.

       

      
        	
                 
      

              	
                b.

              	
                Minimum Negotiated
      Redemption by Company. On or before December 31, 2008, the Company
      shall redeem a minimum of 10% of the aggregate principal of the Notes
      outstanding as of December 12, 2008, pro rata among the Holders pursuant
      to this Section 32 (the “Minimum Redemption”). As to such Minimum
      Redemption only and provided that the Negotiated VWAP as defined below is
      equal to or greater than $0.05, the Holder may, at its sole option, elect
      in writing to the Company to receive the Negotiated Redemption Payment in
      the form of Common Stock in lieu of cash subject to the provisions below
      in Section 32c. In the event that the Company fails to pay the Minimum
      Redemption when due, then any principal amount redeemed pursuant hereto
      prior to such failure shall be reduced such that the Negotiated Principal
      Percentage is 95% and any subsequent Negotiated Redemptions to the extent
      in satisfaction of the Minimum Redemption shall be priced at such 95%
      Negotiated Principal Percentage.

              


      

       

      
        	
                 
      

              	
                c.

              	
                Notices and
      Payment/Delivery. For any Negotiated Redemption in full or partial
      satisfaction of the Minimum Redemption, the Company shall provide not less
      than 5 Business Days prior notice of the planned redemption to the
      Holders; provided that
      the final such notice in satisfaction of the Minimum Redemption shall be
      delivered on or before December 22, 2008 (any such notice a “Minimum
      Redemption Notice”). On or before the fourth Business Day following
      delivery of a Minimum Redemption Notice by the Company, each of the
      Holders shall notify the Company of its election, to the extent
      applicable, to receive payment in the form of Common Stock. If no notice
      is delivered in writing, payments shall be made in cash. Common Stock
      required to be delivered pursuant to a Negotiated Redemption shall be
      delivered on or before the sixth Business Day following delivery of a
      Minimum Redemption Notice and shall be valued at a per share price equal
      to the arithmetic average of the Weighted Average Price of the Common
      Stock on each of the twenty (20) consecutive Trading Days ending two (2)
      Trading Days prior to the date of delivery by the Company of such Minimum
      Redemption Notice (the “Negotiated VWAP”). Negotiated Redemptions to be
      paid in the form of cash shall be due as to the Minimum Redemption on or
      before December 30, 2008, and as to all other Negotiated Redemptions, on
      or before January 31, 2009. For Negotiated Redemptions to be paid in the
      form of Common Stock, such Common Stock shall be due and delivered on or
      before December 30, 2008, to each Holder for which the Company would be,
      pursuant to Section 9(f) of the Securities Purchase Agreement, deemed to
      have received notice on or before December 26, 2008, of such election to
      receive Common Stock.

              


      

      

        
          
             


          

          
            -2-

            
              

            

          

          
             


          

        

      

    

     

    
      	
               
      1.2.  

            	
              Permitted
      Redemption. The following shall be inserted at the end of the last
      sentence of Section 16(e) of the Notes: “; provided
      further that the Company may repurchase or redeem any or all of the
      Notes or Warrants with the written consent of the Required Holders
      provided that such redemption is offered on a pro-rata basis among all
      Holders upon the same terms and
conditions.”

            


    

     

    
      	
               
      1.3.   

            	
              Investor Put.
      The Holder Optional Conversion/Redemption Period in Section 10 of the
      Notes shall be changed from “January 1, 2010, through and including March
      1, 2010”, to “April 1, 2010, through and including June 1,
      2010”.

            


    

     

    
      	
               
      1.4.   

            	
              January 1, 2009,
      Installment Date. The following sentence shall be inserted at the
      end of Section 8(a) of the Notes: “Notwithstanding anything in the Notes
      to the contrary, as to the Installment Amounts due on January 1, 2009, and
      February 1, 2009, only, the Company may elect to pay such Installment
      Amounts in the form of Common Stock as a Company Conversion pursuant to
      Section 8 of the Notes; provided that the minimum required average Volume
      Weighted Average Price as provided above in this Section 8(a) for any such
      Company Conversion shall be $0.05 instead of
  $0.60.”

            


    

     

    
      	
              2.

            	
              Waiver of Right of
      Participation. During the Negotiated Redemption Period, the Holders
      agree to waive their rights and the Company’s obligations pursuant to
      Section 4(n)(iii) of the Securities Purchase
  Agreement.

            


    

     

    
      	
              3.

            	
              Waiver of
      Anti-dilution. During the Negotiated Redemption Period, as defined
      in the Notes, as amended, the Holders agree to waive their rights and the
      Company’s obligations pursuant to Section 2 of the Warrants and Section 7
      of the Notes, subject to the following; (i) to the extent that any Notes
      or Warrants remain outstanding following the Negotiated Redemption Period,
      the provisions waived by this Section 3 shall be applied retroactively for
      the period of waiver as to such remaining Notes or Warrants.
      Notwithstanding anything in this Section 3 to the contrary, at any time
      during the Negotiated Redemption Period, in the event that a Warrant
      holder elects to exercise all or part of its Warrants, the provisions
      waived hereby shall be applied retroactively to the extent
      exercised.

            


    


    
      
         


      

      
        -3-

        
          

        

      

      
         


      

    

     

    
      	
              4.

            	
              Warrant
      Purchase. For each Negotiated Redemption the Company makes pursuant
      to the Note as amended above, the Company agrees to simultaneously
      purchase and the Holders agree to simultaneously sell a number of their
      Warrants (pro rata across the Series A, B & C Warrants) equal to the
      Negotiated Redemption Percentage multiplied by the number of each Series
      of Warrant held. As to each Holder, the purchase price for all Series of
      Warrants purchased in the aggregate pursuant hereto shall be an amount
      equal to 5% of the Redeemed Principal multiplied by such Holder’s pro rata
      share of the aggregate principal of the Notes. By way of illustration
      only, if the Company redeemed 50% of an aggregate outstanding principal
      amount of the Notes of $12,000,000 for a payment of $4,320,000 (72% of
      $6,000,000), then the Company would simultaneously purchase 50% of each of
      the Series A, B & C Warrants for an amount equal to 5% of $6,000,000
      or $300,000. Any purchase price for Warrants due hereunder shall be due
      and payable by the Company to the respective Holders concurrently with the
      payment of the Negotiated Redemption price that triggers such Warrant
      purchase. Provided further, that to the extent any Negotiated Redemption
      is due in Common Stock, the Warrant purchase price shall also be due in
      Common Stock.

            


    

     

    5.     Miscellaneous.

     

    
      	
               
      5.1.  

            	
              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.

            


    


    
      
         


      

      
        -4-

        
          

        

      

      
         


      

    

     

    
      	
               
      5.2.   

            	
              Counterparts.
      This Agreement may be executed in two or more identical counterparts, all
      of which shall be considered one and the same agreement; provided that a
      facsimile signature shall be considered due execution and shall be binding
      upon the signatory thereto with the same force and effect as if the
      signature were an original, not a facsimile
  signature.

            


    

     

    
      	
               5.3.
        

            	
              Effectiveness.
      Pursuant to the Notes and the Warrants, this Agreement shall serve as
      written consent of and be effective as to and binding on all Holders upon
      execution by Holders representing at least 2/3rds of the aggregate
      principal currently outstanding under all Notes and as to the Warrants
      upon execution by Holders representing at least the majority of Common
      Stock underlying the Warrants currently
  outstanding.

            


    

     

    
      	
               
      5.4.   

            	
              Definitions.
      Capitalized terms used herein and not otherwise defined herein shall have
      the respective meanings set forth in the Transaction
      Documents.

            


    

     

    
      	
               
      5.5.   

            	
              Further
      Assurances. Each party shall do and perform, or cause to be done
      and performed, all such further acts and things, and shall execute and
      deliver all such other agreements, certificates, instruments and
      documents, as any other party may reasonably request in order to carry out
      the intent and accomplish the purposes of this Agreement and the
      consummation of the transactions contemplated
  hereby.

            


    

     

    
      	
               
      5.6.   

            	
              Waiver of
      Default. The Holders hereby agree that the negotiation, entering
      into, and performance of this Agreement does not and shall not constitute
      a default or event of default under the Transaction Documents including
      without limitation a breach of the covenants in Section 12:
      Noncircumvention of the Notes and Section
      5: Noncircumvention of the Warrants. The Holders hereby waive any defaults
      or events of default under the Transaction Documents by the Company known
      to them as of the date
hereof.

            


    

     

    
      	
              5.7. 
      

            	
              Entire Agreement;
      Amendments. This Agreement supersedes all other prior oral or
      written agreements between the Buyers, the Company, their affiliates and
      Persons acting on their behalf with respect to the matters discussed
      herein, and this Agreement contains the entire understanding of the
      parties with respect to the matters covered herein and, except as
      specifically set forth herein, none of the parties makes any
      representation, warranty, covenant or undertaking with respect to such
      matters. To the extent that this Agreement conflicts with any of the
      provisions of the Transaction Documents, this Agreement shall prevail. No
      provision of this Agreement may be amended other than by an instrument in
      writing signed by the parties hereto. No provision hereof may be waived
      other than by an instrument in writing signed by the party against whom
      enforcement is sought.

            


    


    
      
         


      

      
        -5-

        
          

        

      

      
         


      

    


     

    
      	
               
      5.8.   

            	
              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.

            


    

     

    
      	
               
      5.9.   

            	
               Headings.
      The headings of this Agreement are for convenience of reference and shall
      not form part of, or affect the interpretation of, this
      Agreement.

            


    

    


    


    


    [Signature
Page Follows]


    
      
         


      

      
        -6-

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the undersigned Holders and the Company have caused their
respective signature page to this Amendment Agreement to be duly executed as of
the date first written above.

    


     

    
      	 	

              COMPANY:

              


              JAVO
      BEVERAGE COMPANY, INC.

               

              


              By:  /s/ Cody C.
      Ashwell                                        
      

                      Name:
      Cody C. Ashwell

                      Title:  Chairman
      & CEO
 


    

     

    



    
      
         


      

      
        -7-

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the undersigned Holders and the Company have caused their
respective signature page to this Amendment Agreement to be duly executed as of
the date first written above.

     

    


     

    
      	 	

              HOLDERS:

               

              CAPITAL
      VENTURES INTERNATIONAL

              


              


              By:  /s/ Martin
      Kobinger                                                  
      

                      Name:
      Martin Kobinger

                      Title:  Investment
      Manager
 


    

     

     

     

    
      
         


      

      
        -8-

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the undersigned Holders and the Company have caused their
respective signature page to this Amendment Agreement to be duly executed as of
the date first written above.

    
    

     

    
      	 	

              HOLDERS:

               

              FORT
      MASON MASTER, LP 

              FORT
      MASON PARTNERS, LP

               

               

              By:  /s/ Dan
      German                                                     
      

                      Name:
      Dan German

                      Title:  
      Managing Member,

                                 
      Fort Mason Capital, LLC
 


    

     

     


    
      
         


      

      
        -9-

        
          

        

      

      
         


      

    


    IN WITNESS
WHEREOF, the undersigned Holders and the Company have caused their
respective signature page to this Amendment Agreement to be duly executed as of
the date first written above.

    
    

     

    
      	 	

              HOLDERS:

               

              ENABLE
      GROWTH PARTNERS, LP 

              ENABLE
      OPPORTUNITY PARTNERS, LP 

              PIERCE
      DIVERSIFIED STRATEGY MASTER FUND, LLC

               

               

              By:     
      /s/ Brendan
      O'Neil                                        
      

                         
      Name: Brendan O’Neil 

                         
      Title:   President and
CIO
 


    

     

     


    
      
         


      

      
        -10-

        
          

        

      

      
         


      

    


    


     

    


    
      	
              Exhibit
      A

            
	
              Holder

            	
              %
      of Aggregate Principal of the Notes

            
	
              Capital
      Ventures International LP

            	
              28.57%

            
	
              Fort
      Mason Master, LP

            	
              24.60%

            
	
              Fort
      Mason Partners, LP

            	
               
      1.59%

            
	
              JGB
      Capital Offshore, Ltd.

            	
               
      5.95%

            
	
              JGB
      Capital, LP

            	
               
      5.95%

            
	
              Scoggin
      International Fund, Ltd.

            	
               
      5.95%

            
	
              Scoggin
      Capital Management, LP II

            	
               
      5.95%

            
	
              Enable
      Growth Partners LP

            	
              18.21%

            
	
              Enable
      Opportunity Partners LP

            	
               
      2.14%

            
	
              Pierce
      Diversified Strategy Master Fund LLC

            	
               
      1.07%

            


    

    


     

     

    -11-