EXHIBIT 10.2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF
(COLLECTIVELY, "THE SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES NOTE MAY NOT BE SOLD OR OTHERWISE PLEDGED OR TRANSFERRED UNLESS A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, IS IN
EFFECT WITH RESPECT TO THE TRANSFER OF SUCH SECURITIES OR THE COMPANY HAS
RECEIVED AN OPINION IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY PROVIDING
THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED, IS AVAILABLE.
SERIES 2008A WARRANT
Smoky Market Foods, Inc.
Dated: September, 8 2008
300,000 Shares of Common Stock Warrant 2008A No. 1
This certifies that Xxxxx Xxx Beam Revocable Trust or its permitted
transferee (such person or any such permitted transferee is sometimes herein
called the "HOLDER") is entitled to purchase from Smoky Market Foods, Inc., a
Nevada corporation (the "COMPANY"), at the price and during the period as
hereinafter specified, up to 300,000 shares (the "SHARES") of common stock $.001
par value of the Company (the "COMMON STOCK"), subject to adjustment as set
forth below, at a purchase price of $0.15 per share, subject to adjustment as
described below (as so adjusted from time to time, the "EXERCISE PRICE"), at any
time until the Expiration Date (as defined below).
1. EXERCISE. The rights represented by this Warrant (this "WARRANT") shall be
exercisable at the Exercise Price, and during the periods as follows:
(a) At any time and from time to time between the date hereof and
September 30, 2013 (the "EXPIRATION DATE") inclusive, the Holder shall have the
right to purchase all or any portion of the Shares at a price per share equal to
the Exercise Price.
(b) After the Expiration Date, the Holder shall have no right to
purchase all or any portion of the Shares hereunder.
2. PAYMENT FOR SHARES; ISSUANCE OF CERTIFICATES. The rights represented by the
Warrant may be exercised at any time within the periods above specified, in
whole or in part, by (i) the surrender of the Warrant (with the purchase form at
the end hereof properly executed) at the principal executive office of the
Company (or such other office or agency of the Company as it may designate by
notice in writing to the Holder at the address of the Holder appearing on the
books of the Company) and (ii) payment to the Company of the Exercise Price for
the number of Shares specified in the above-mentioned purchase form together
with applicable stock transfer taxes, if any. The Warrant shall be deemed to
have been exercised, in whole or in part to the extent specified, immediately
prior to the close of business on the date the Warrant is surrendered and
payment is made in accordance with the foregoing provisions of this Section 2,
and the person or persons in whose name or names the certificates for the Shares
shall be issuable upon such exercise shall become the holder or holders of
record of such Shares at that time and date. The Shares and the certificates for
the Shares so purchased shall be delivered to the Holder within a reasonable
time, not exceeding ten (10) business days, after the rights represented by this
Warrant shall have been so exercised.
3. TRANSFER. (a) Any transfer of this Warrant shall be effected by the Holder by
(i) executing the form of assignment at the end hereof and (ii) surrendering the
Warrant for cancellation at the office or agency of the Company referred to in
Section 2 hereof, accompanied by (y) a certificate (signed by an officer of the
Holder, or other authorized representative reasonably satisfactory to the
Company, if the Holder is an entity) stating that each transferee is a permitted
transferee under this Section 3; and, if applicable, (z) an opinion of counsel,
reasonably satisfactory in form and substance to the Company, to the effect that
the Shares or the Warrant, as the case may be, may be sold or otherwise
transferred without registration under the Securities Act of 1933, as amended
(the "ACT"). Upon any transfer of this Warrant or any part thereof in accordance
with the first sentence of this Section 3(a), the Company shall issue, in the
name or names specified by the Holder (including the Holder), a new Warrant or
Warrants of like tenor (including all substantive provisions hereof) and
representing in the aggregate rights to purchase the same number of Shares as
are purchasable hereunder at such time.
(b) Any attempted transfer of this Warrant or any part thereof
in violation of this Section 3 shall be null and VOID AB INITIO.
(c) This Warrant may not be exercised, and neither this
Warrant nor any of the Shares, nor any interest in either, may be offered, sold,
assigned, pledged, hypothecated, encumbered or in any other manner transferred
or disposed of, in whole or in part, except in compliance with applicable United
States federal and state securities laws and the terms and conditions hereof.
Each Warrant shall bear a legend in substantially the same form as the legend
set forth on the first page of this Warrant. Each certificate for Shares issued
upon exercise of this Warrant, unless at the time of exercise such Shares are
acquired pursuant to a registration statement that has been declared effective
under the Act and applicable blue sky laws, shall bear a legend substantially in
the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER THE ACT OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT. SMOKY MARKET
FOODS, INC. MAY REQUIRE AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
IT THAT A PROPOSED TRANSFER OR SALE IS IN COMPLIANCE WITH THE ACT.
Any certificate for any Shares issued at any time in exchange or substitution
for any certificate for any Shares bearing such legend (except a new certificate
for any Shares issued after the acquisition of such Shares pursuant to a
registration statement that has been declared effective under the Act) shall
also bear such legend unless, in the opinion of counsel for the Company, the
Shares represented thereby need no longer be subject to the restriction
contained herein. The provisions of this Section 3(c) shall be binding upon all
subsequent holders of certificates for Shares bearing the above legend and all
subsequent holders of this Warrant, if any.
4. SHARES TO BE FULLY PAID. The Company covenants and agrees that all Shares
which may be purchased hereunder will, upon issuance and delivery against
payment therefor of the requisite purchase price, be duly and validly issued,
fully paid and nonassessable.
5. NO VOTING OR DIVIDEND RIGHTS. The Warrant shall not entitle the Holder to any
voting rights or any other rights, including without limitation notice of
meetings of other actions or receipt of dividends or other distributions, as a
stockholder of the Company.
2
6. ADJUSTMENT OF EXERCISE PRICE. The Exercise Price in effect at the time and
the number and kind of securities purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time upon the happening of certain
events as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding Common Stock in Common Stock, (ii) subdivide or
reclassify its outstanding Common Stock into a greater number of shares, (iii)
combine or reclassify its outstanding Common Stock into a smaller number of
shares, or (iv) enter into any transaction whereby the outstanding Common Stock
of the Company are at any time changed into or exchanged for a different number
or kind of shares or other securities of the Company or of another corporation
through reorganization, merger, consolidation, liquidation or recapitalization,
then appropriate adjustments in the number of Shares (or other securities for
which such Shares have previously been exchanged or converted) subject to this
Warrant shall be made and the Exercise Price in effect at the time of the record
date for such dividend or distribution or of the effective date of such
subdivision, combination, reclassification, reorganization, merger,
consolidation, liquidation or recapitalization shall be proportionately adjusted
so that the Holder of this Warrant exercised after such date shall be entitled
to receive the aggregate number and kind of shares or other securities which, if
this Warrant had been exercised by such Holder immediately prior to such date,
the Holder would have been entitled to receive upon such dividend, distribution,
subdivision, combination, reclassification, reorganization, merger,
consolidation, liquidation or recapitalization. For example, if the Company
declares a 2 for 1 stock subdivision (forward split) and the Exercise Price
hereof immediately prior to such event was $7.00 per Share and the number of
Shares issuable upon exercise of this Warrant was 85,500, the adjusted Exercise
Price immediately after such event would be $3.50 per Share and the adjusted
number of Shares issuable upon exercise of this Warrant would be 171,000. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) In the event that at any time, as a result of an
adjustment made pursuant to the provisions of this Section 8, the Holder of the
Warrant thereafter shall become entitled to receive any shares of the Company
other than Common Stock, thereafter the number of such other shares so
receivable upon exercise of the Warrant shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in Sections 8(a) above.
7. GOVERNING LAW. This Agreement shall be governed by and in accordance with the
laws of the State of Nevada without regard to conflicts of laws principles
thereof.
8. SUCCESSORS. In case of any consolidation of the Company with, or merger of
the Company into, any other entity, or in case of any sale or conveyance of all
or substantially all of the assets of the Company other than in connection with
a plan of complete liquidation of the Company at any time prior to the
Expiration Date, then as a condition of such consolidation, merger or sale or
conveyance, the Company shall give written notice of consolidation, merger, sale
or conveyance to the Holder and, from and after the effective date of such
consolidation, merger, sale or conveyance the Warrant shall represent only the
right to receive the consideration that would have been issuable in respect of
the Shares underlying the Warrant in such consolidation, merger, sale or
conveyance had the Warrant been exercised in full immediately prior to such
effective time and the Holder shall have no further rights under this Warrant
other than the right to receive such consideration.
9. FRACTIONAL SHARES. No fractional shares shall be issued upon exercise of this
Warrant. The Company shall, in lieu of issuing any fractional share, pay the
holder entitled to such fraction a sum in cash equal to such fraction multiplied
by the then effective Exercise Price.
3
10. LOST WARRANTS. Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction, or mutilation of this Warrant and, in
the case of any such loss, theft or destruction, upon receipt of an affidavit of
loss and indemnity reasonably satisfactory to the Company, or in the case of any
such mutilation upon surrender and cancellation of such Warrant, the Company, at
its expense, will make and deliver a new Warrant, of like tenor, in lieu of the
lost, stolen, destroyed or mutilated Warrant.
11. HEADINGS. The headings of the several sections and paragraphs of this
Warrant are inserted for convenience only and do not constitute a part of this
Warrant.
12. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
13. SURVIVAL. The rights and obligations of the Company, of the Holder and of
the holder of Shares issued upon exercise of this Warrant shall survive the
exercise of this Warrant.
[SIGNATURE PAGE FOLLOWS]
4
IN WITNESS WHEREOF, the Company has caused this Series 0000X Xxxxxxx to be
signed by its duly authorized officers under its corporate seal.
NMC, INC.
By: /S/ XXXXXX XXXXXXXX
----------------------------------------
Xxxxxx Xxxxxxxx, Chief Executive Officer
5
PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the holder of the foregoing Series 2008A Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, _______________ shares of Common Stock, par
value $0.001 per share (the "SHARES"), of SMOKY MARKET FOODS, INC. and tenders
herewith payment of the aggregate Exercise Price in respect of the Shares in
full, in the amount of $_________ and requests that the certificates for the
Shares be issued in the name(s) of, and delivered to _________________, whose
address(es) is (are):
_____________________________________________________
_____________________________________________________
_____________________________________________________
Dated: ___________________________________
By: _____________________________________
_____________________________________
_____________________________________
Address
6
TRANSFER FORM
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto
______________________________ the right to purchase Shares represented by the
foregoing Series 0000X Xxxxxxx to the extent of __________ Shares, and appoints
_________________________ attorney to transfer such rights on the books of Smoky
Market Foods, Inc., with full power of substitution in the premises.
Dated: ____________________________
By: _____________________________________
_____________________________________
_____________________________________
Address
In the presence of:
_____________________________________
7
