EXHIBIT 10.12
GB FOODS CORPORATION
WARRANT AGREEMENT
THIS WARRANT AGREEMENT dated as of May 1, 1995, is entered into by and
among GB FOODS CORPORATION, a Delaware corporation, (the "Company"), and
XxXXXXX, NORTH, XXXXXX & XXXXX, P.C., a Nebraska Professional Corporation (the
"Purchaser").
The Company proposes to issue to the Purchaser warrants as hereinafter
described (the "Warrants") to purchase up to an aggregate of ONE MILLION
(1,000,000) shares, subject to adjustment as provided in Section 8 hereof (such
1,000,000 shares, as adjusted, being hereinafter referred to as the "Shares") of
the Company's Common Stock, par value $0.08 (the "Common Stock"), each Warrant
entitling the holder ("Holder") thereof to purchase one share of Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth and for other good and valuable consideration, the parties
hereto agree as follows:
1. ISSUANCE OF WARRANTS: FORM OF WARRANT. On the date hereof (the "Closing
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Date"), the Company hereby issues, sells and delivers the Warrants to the
Purchaser for an aggregate price One Hundred Dollars ($100.00). The form of the
Warrant and of the form of election to purchase Shares to be attached thereto
shall be substantially as set forth on the attachments hereto entitled "Warrant
Certificate." The Warrants shall be executed on behalf of the Company by the
manual or facsimile signature of the then present Chairman or Co-Chairman,
President or any Vice President of the Company, under its corporate seal,
affixed or in facsimile, and attested by the manual or facsimile signature of
the present or any future Secretary or Assistant Secretary of the Company.
2. REGISTRATION. The Warrants shall be numbered and shall be registered in a
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Warrant register (the "Warrant Register"). Subject to the provisions of Section
3, the Company shall be entitled to treat the registered holder of any Warrant
on the Warrant Register as the owner in fact thereof for all purposes and shall
not be bound to recognize any equitable or other claim to or interest in such
Warrant on the part of any other person, and shall not be liable for any
registration of transfer of Warrants which are registered or are to be
registered in the name of a fiduciary or the nominee of a fiduciary unless made
with the actual knowledge that a fiduciary or nominee is committing a breach of
trust in requesting such registration of transfer, or with such knowledge of
such facts that its participation therein amounts to bad faith. The Warrants
shall be registered initially in the name of the Purchaser.
3. WARRANTS TRANSFERABILITY LIMITED. The Warrants are expressly hereby made
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non-transferable and shall not be sold, transferred, assigned or hypothecated,
in part or in whole, except upon the liquidation and dissolution of the
Purchaser or the prior written consent of the Company. Any permitted transfer
will be allowed only upon delivery of the Warrant Certificate duly endorsed by
the Holder or by his duly authorized attorney or representative, or accompanied
by proper evidence of succession, assignment or authority to transfer and
contingent upon approval by the Board of Directors of the Company. Such
permitted transfer, of the Warrants shall be effective as of the date of such
endorsement or other proper evidence. In all cases of transfer by an attorney,
the original power of attorney, duly approved, or an official copy thereof, duly
certified, shall be deposited with the Company. Such permitted transfer of the
Warrants shall be effective as of the date of such endorsement or other proper
evidence. In all cases of transfer by an attorney, the original power of
attorney, duly approved, or an official copy thereof, duly certified, shall be
deposited with the Company. In case of transfer by executors, administrators,
guardians or other legal representatives, duly authenticated evidence of their
authority shall be produced, and may be required to be deposited with the
Company in its discretion. Upon any registration of transfer, the Company shall
deliver a
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new Warrant or Warrants to the person entitled thereto. The Warrants may be
exchanged at the option of the Holder thereof for other Warrants of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of shares of Common Stock upon surrender to the Company
or its duly authorized agent. The Company may require payment of the sum
sufficient to cover all applicable taxes and other governmental charges that may
be imposed in connection with any voluntary transfer, exchange or other
disposition of the Warrants. Notwithstanding the foregoing, the Company shall
have no obligation to cause Warrants to be transferred on its books to any
person, if such transfer would violate the registration provisions of Securities
Act of 1933, as amended (the "Act"), unless an exemption under the Act is
available therefor.
4. TERM OF WARRANTS; EXERCISE OF WARRANTS.
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(a) Subject to Paragraph 4(d) below, each Warrant entitles the registered
owner thereof to purchase one Share at a purchase price of Seven Dollars
($7.00) per Share (as adjusted from time to time pursuant to the provisions
hereof, the "Exercise Price") at any time or from time to time the date of
this Agreement until 5:00 p.m., California time, May 1, 2005 (the "Warrant
Expiration Date"). The Exercise Price and the Shares issuable upon
exercise of Warrants are subject to adjustment upon the occurrence of
certain events, pursuant to the provisions of Section 8 of this Agreement.
Subject to the provisions of the Agreement, the Purchaser or a permitted
Holder shall have the right, which may be exercised as set forth in such
Warrants, to purchase from the Company and the Company shall issue and sell
to the Purchaser or such Holder the number of fully paid and nonassessable
Shares of Common Stock specified in such Warrants, upon surrender to the
Company, or its duly authorized agent, of such Warrants, with the form of
election to purchase attached thereto duly completed and signed, and upon
payment to the Company of the Exercise Price, as adjusted in accordance
with the provisions of Section 8 of this Agreement, for the number of
Shares in respect of which such Warrants are then exercised.
(b) The Purchase Price may be paid (i) in cash or by cashier's check
payable to the Company, (ii) by the surrender of Warrants owned by the
Purchaser or a permitted Holder having a Warrant Value (as defined below)
on the date of exercise equal to the Purchase Price, (iii) by the surrender
of shares of the Company's Common Stock in good form for transfer, owned by
the Holder and having a Fair Market Value (as defined below) on the date of
exercise equal to the Purchase Price, or (iv) any combination of the
foregoing. The term "Warrant Value" shall mean the difference between the
Exercise Price per share and the Fair Market Value (as defined below) per
share multiplied by the number of Warrants being surrendered. The term
"Fair Market Value" shall mean the average over the previous five (5)
trading days of the reported high and low sales price on the Nasdaq Small
Cap Market, the Nasdaq National Market System, or such other national
securities exchange on which the Company's shares may be traded, or if not
trading on the Nasdaq Small Cap Market, the Nasdaq National Market System,
or a national securities exchange, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for that
purpose.
(c) No adjustment shall be made for any dividends on any Shares issuable
upon exercise of a Warrant. Upon each surrender of Warrants and payment of
the Exercise Price as aforesaid, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
Purchaser or the permitted Holder of such Warrants and in such name or
names as the Purchaser or such Holder may designate, a certificate or
certificates for the number of full Shares so purchased upon the exercise
of such Warrants, together with cash, as
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provided in Section 9 of this Agreement, in respect of any fractional
Shares otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so
designated to be named therein shall be deemed to have become a holder of
record of such Shares as of the date of the surrender of Warrants and
payment of the Exercise Price as aforesaid; provided, however, that if, at
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the date of surrender of such Warrants and payment of such Exercise Price,
the transfer books for the Common Stock or other class of securities
issuable upon the exercise of such Warrants shall be closed, the
certificates for the Shares shall be issuable as of the date on which such
books shall next be opened (whether before, on or after the Warrant
Expiration Date) and until such date the Company shall be under no duty to
deliver any certificate for such Shares; provided, further, however, that
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the transfer books of record, unless otherwise required by law, shall not
be closed at any one time for a period longer than five (5) days. The
rights of purchase represented by the Warrants shall be exercisable, at the
election of the Holder(s) thereof, either in full or from time to time in
part and, in the event that any Warrant is exercised in respect of less
than all of the Shares issuable upon such exercise at any time prior to the
Warrant Expiration Date, a new Warrant or Warrants will be issued for the
remaining number of Shares specified in the Warrant so surrendered.
(d) Notwithstanding any provision contained in this Agreement to the
contrary, the Warrants shall become immediately exercisable upon the
occurrence of any of the following events:
(i) The public announcement of any Organic Change (as defined in
Paragraph (g) at Section 8 hereinbelow);
(ii) The exercise of any warrants for stock of the Company, which
exercise is made by the Chairman and Chief Executive Officer
of the Company;
(iii) The written consent of the Chairman and Chief Executive
Officer of the Company; or
(iv) The termination of the Company's employment of Xxxxxxx X.
Xxxxxxx, or his failure for any reason to serve as Chairman
and Chief Executive Officer of the Company.
5. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes, if
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any, attributable to the issuance of Shares upon the exercise of Warrants;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable solely in respect of any transfer involved in the
issue or delivery of any certificates for Shares in a name other than that of
the Purchaser or a permitted Holder of Warrants in respect of which such Shares
are issued.
6. MUTILATED OR MISSING WARRANTS. In case any of the Warrants shall be
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mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and in substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent right of interest, but only
upon receipt of evidence reasonably satisfactory to the Company of such
mutilation, loss, theft or destruction of such Warrant and indemnity, if
requested, reasonably satisfactory to the Company. An applicant for such
substitute Warrants shall also comply with such other reasonable regulations and
pay such other reasonable charges and expenses as the Company may prescribe.
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7. RESERVATION OF SHARES, ETC. There have been reserved, and the Company
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shall at all times keep reserved, out of the authorized and unissued Common
Stock, a number of shares of Common Stock sufficient to provide for the exercise
of the rights of purchase represented by the outstanding Warrants. American
Securities Transfer, Incorporated, transfer agent for the Common Stock (the
"Transfer Agent"), and every subsequent transfer agent, if any, for the
Company's securities issuable upon the exercise of the Warrants will be
irrevocably authorized and directed at all times until the Warrant Expiration
Date to reserve such number of authorized and unissued shares as shall be
required for such purpose. The Company will keep a copy of this Agreement on
file with the Transfer Agent and with every subsequent transfer agent for any
shares of the Company's securities issuable upon the exercise of the Warrants.
The Company will supply the Transfer Agent or any subsequent transfer agent with
duly executed certificates for such purpose and will itself provide or otherwise
make available any cash which may be distributable as provided in Section 9 of
this Agreement. All Warrants surrendered in the exercise of the rights thereby
evidenced shall be canceled, and such canceled Warrants shall constitute
sufficient evidence of the number of Shares that have been issued upon the
exercise of such Warrants. No shares of Common Stock shall be subject to
reservation in respect of unexercised Warrants subsequent to the Warrant
Expiration Date.
8. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SHARES. The Exercise Price and
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the number and kind of securities issuable upon exercise of each 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 on its Common Stock in
shares of Common Stock or make a distribution in shares of Common Stock
(other than an issuance of Common Stock for valuable consideration), (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock in to a smaller number of shares of
Common Stock or (iv) issue by reclassification of its shares of Common
Stock other securities of the Company (including any such reclassification
in connection with the consolidation or merger in which the Company is the
continuing corporation), the number of Shares purchasable upon exercise of
each Warrant immediately prior thereto shall be adjusted so that the
Purchaser and any permitted Holder of each Warrant shall be entitled to
receive the kind and number of Shares or other securities of the Company
which he would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any record
date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such
event retroactive to immediately after the record date, if any, for such
event.
(b) No adjustment in the number of Shares purchasable hereunder shall be
required unless such adjustment would require an increase or decrease of at
least one percent (1%) in the number of Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by
reason of this paragraph (e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment but not later
than five (5) years after the happening of the specified event or events.
All calculations shall be made to the nearest one thousandth of a share.
(c) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted, as herein provided, the Exercise Price shall be
adjusted by multiplying the Exercise Price in effect immediately prior to
such adjustment by a fraction, of which the numerator shall be the number
of Shares purchasable upon the exercise of each Warrant immediately prior
to
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such adjustment, and of which the denominator shall be the number of Shares
so purchasable immediately thereafter.
(d) For the purpose of this Section 8, the term "shares of Common Stock"
shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Agreement or (ii) any other class of stock
resulting from successive changes or reclassifications of such shares
consisting solely of changes in par value, or from no par value to par
value, or from par value to no par value.
(e) Whenever the number of Shares issuable upon the exercise of each
Warrant or the Exercise price of such Shares is adjusted, as herein
provided, the Company shall promptly mail by first class mail, postage
prepaid, to the Purchaser and/or each permitted Holder notice of such
adjustment or adjustments. The Company shall retain a firm of independent
public accountants (who may be the regular accountants employed by the
Company) to make any computation required by this Section 8 and shall cause
such accountants to prepare a certificate setting forth the number of
Shares issuable upon the exercise of each Warrant and the Exercise Price of
such Shares after such adjustment, setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation by which
such adjustment was made. Such certificate shall be conclusive as to the
correctness of such adjustment and the Purchaser and/or each permitted
Holder shall have the right to inspect such certificate during reasonable
business hours.
(f) Except as provided in this Section 8, no adjustment in respect of any
dividends shall be made during the term of a Warrant or upon the exercise
of a Warrant.
(g) If any capital reorganization, recapitalization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with another corporation, or the sale of all or substantially all of the
Company's assets to another person or entity, or any other transaction
(collectively, an "Organic Change") shall be effected in such a way that
holders of shares of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for shares of Common
Stock (such stock, securities or assets being hereinafter referred to as
"substitute property"), then, as a condition of such Organic Change, lawful
and adequate provision shall be made whereby the Purchaser and the
permitted Holder shall thereafter have the right to purchase and receive
upon the basis and upon the terms and conditions specified herein and in
lieu of the shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of the Warrants, such substituted property as
may be issued or payable with respect to or in exchange for a number of
outstanding shares of Common Stock equal to the number of shares of Common
Stock immediately theretofore purchasable and receivable upon the exercise
of the Warrants had such Organic Change not taken place. Further, in any
such case appropriate provision shall be made with respect to the rights
and interests of the Purchaser and the permitted Holder to the end that the
provision hereof (including without limitation provisions for adjustments
of the Exercise Price and of the number of shares purchasable and
receivable upon the exercise of the Warrants) shall thereafter be
applicable, as nearly as may be, in relation to any substituted property
thereafter purchasable and receivable upon the exercise of the Warrants.
The Company shall not effect any such Organic Change, unless prior to the
consummation thereof the successor entity (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing
the assets shall assume by written instrument approved by the board of
directors of the Company the obligation to deliver to the Holders such
substituted property as, in accordance with the foregoing provisions, the
Holders may be entitled to purchase and receive.
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(h) Notwithstanding any adjustment in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants pursuant to
this Agreement, certificates for Warrants issued prior or subsequent to
such adjustment may continue to express the same price and number and kind
of Shares as are initially issuable pursuant to this Agreement.
9. FRACTIONAL INTERESTS. The Company shall not be required to issue fractions
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of Shares on the exercise of Warrants. If more than one Warrant shall be
presented for exercise in full at the same time by the Purchaser or the same
permitted Holder, the number of Shares which shall be issuable upon the exercise
thereof shall be computed on the basis of the aggregate number of Shares
issuable on exercise of the Warrants so presented. If any fraction of a Share
would, except for the provisions of this Section 9, be issuable on the exercise
of any Warrant (or specified portions thereof), the Company shall purchase such
fraction for an amount in cash equal to the same fraction of the current market
price per share of Common Stock (determined as provided in Section 8(d) of this
Agreement) on the date of exercise.
10. REGISTRATION RIGHTS.
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(a) DEMAND REGISTRATION RIGHTS. The Company covenants and agrees with the
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Purchaser and any other or subsequent Holders of the Registrable Securities
(as defined in paragraph (e) of this Section 10) that, upon written request
of the then Holder(s) of at least a majority of the Registrable Securities
under Warrants which were originally issued to the Purchaser, the Company
will file, from time to time as requested, as promptly as practicable and,
in any event, within ninety (90) days after receipt of such written
request, at the sole expense to the Purchaser and/or any other or
subsequent Holders of the Registrable Securities, a registration statement
(the "Registration Statement"), under the Act, registering or qualifying
the Registrable Securities for sale. The Company will use its best
efforts, through its officers, directors, auditors and counsel in all
matters necessary or advisable, to file and cause to become effective such
Registration Statement as promptly as practicable and of a period of two
(2) years thereafter to reflect in the Registration Statement financial
statements which are prepared in accordance with Section 10(a)(3) of the
Act and any facts or event arising that, individually, or in the aggregate,
represent a fundamental and/or material change in the information set forth
in the Registration Statement to enable the Purchaser or any permitted
Holders of the Warrants to, subject to Section 4, exercise such Warrants
and sell Shares, or to enable any holders of Shares to sell such Shares,
during said two-year period. The Holders may sell the Registrable
Securities pursuant to the Registration Statement without exercising the
Warrants.
(b) PIGGYBACK REGISTRATION RIGHTS. The Company covenants and agrees with
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the Purchaser and any subsequent Holders of the Registrable Securities that
if, at any time after the Warrants become exercisable, it proposes to file
a Registration Statement with respect to any class of equity or equity-
related security under the Act in a primary registration on behalf of the
Company and/or in a secondary registration on behalf of holders of such
securities and the registration form to be used may be used for
registration of the Registrable Securities, the Company will give prompt
written notice to the Holders of Registrable Securities (regardless of
whether some of the Holders shall have theretofore availed themselves of
the right provided in Section 10(a) of this Agreement) at the addresses
appearing on the records of the Company of its intention to file a
registration statement and will offer to include in such registration
statement to the maximum extent possible, subject to paragraphs (i) and
(ii) of this paragraph (b), such number of Registrable Securities with
respect to which the Company has received written requests for inclusion
therein within ten (10) business days after the Holder(s) receive
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notice from the Company. All registrations requested pursuant to this
paragraph (b) are referred to herein as "Piggyback Registrations". This
paragraph is not applicable to a registration statement filed by the
Company with the Commission on Forms S-4 or S-8 or any successor forms
thereto.
(i) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
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includes an underwritten primary registration on behalf of such
Company and the underwriter(s) for such offering determines in good
faith and advises the Company in writing that in its/their opinion the
number of Registrable Securities requested to be included in such
registration exceeds the number that can be sold in such offering
without materially adversely affecting the distribution of such
securities by the Company, the Company will include in such
registration (A) first, the securities that the Company proposed to
sell and (B) second, the Registrable Securities requested to be
included in such registration, apportioned pro rata among the Holders
of Registrable Securities and (C) third, securities of the holders of
other securities requesting registration.
(ii) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
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consists only of an underwritten secondary registration on behalf of
holders of securities of the Company (other than pursuant to Section
10(a)), and the underwriter(s) for such offering advises the Company
in writing that in its/their opinion the number of Registrable
Securities requested to be included in such registration exceeds the
number which can be sold in such offering without materially adversely
affecting the distribution of such securities by the Company, the
Company will include in such registration (A) first, the securities
requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included
in such registration, pro rata among all such holders on the basis of
the number of shares requested to be included by each such holder and
(B) second, other securities requested to be included in such
registration.
(c) OTHER REGISTRATION RIGHTS. In addition to the rights above provided,
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the Company will cooperate with the then Holders of the Registrable
Securities in preparing and signing any registration statement, in addition
to the registration statements discussed above, required in order to sell
or transfer the Registrable Securities and will supply all information
required therefor, but such additional registration statement, shall be at
the then Holders' cost and expense; provided, however, that if the Company
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elects to register or qualify additional shares of Common Stock, the cost
and expense of such registration statement will be pro rated between the
Company and the Holders of the Registrable Securities according to the
aggregate sales price of the securities being issued.
(d) All registration expenses (as hereinafter defined) in connection with a
Demand or Piggyback Registration shall be borne by the Company and all
selling expenses (as hereinafter defined) in connection with a Demand or
Piggyback Registration shall be borne by the Holders. The term
"registration expenses" shall mean all expenses, except selling expenses,
incurred by the Company in complying with the registration rights granted
in this Section 11, including all registration, qualification, and filing
expenses; printing expenses; escrow fees; fees and disbursements of counsel
for the Company, blue sky fees and expenses; and fees and disbursements of
the Company's independent auditors. The term "selling expenses" shall mean
all underwriting discounts and selling commissions, if any, applicable to
the Registrable Securities and expenses of counsel for the Holders. All
selling expenses shall be borne by the
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Holders in an amount equal to their pro rata share of the Registrable
Securities included in the Registration Statement.
(e) For purposes of this Section 10, (i) the term "Holder" shall be holders
of Shares, and (ii) the term "Registrable Securities" shall mean the
Shares, if issued.
11. VOTING RIGHTS. Nothing contained in this Agreement or in any of the
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Warrants shall be construed as conferring upon the Holders thereof the right to
vote or to receive dividends or to consent or to receive notice as shareholders
in respect of the meetings of shareholders or the election of directors of the
Company or any other matter, or any rights whatsoever as shareholders of the
Company.
12. NOTICES.
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(a) Any notice pursuant to this Agreement to be given or made by the Holder
of any Warrant and/or the holder of any Share to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows or to such other address as the Company may designate
by notice given in accordance with this Section 12, to the Purchaser and
any permitted Holders of Warrants and/or the holders of Shares:
GB FOODS CORPORATION
00 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
Notices or demands authorized by this Agreement to be given or made by the
Company to or on the Purchaser and any permitted Holder of any Warrant
and/or the holder of any share shall be sufficiently given or made (except
as otherwise provided in this Agreement) if sent by first-class mail,
postage prepaid, addressed to the Purchaser or such Holder or such holder
of Shares at the address of the Purchaser or such Holder or such holder of
Shares as shown on the Warrant Register or the books of the Company, as the
case may be.
(b) If at any time prior to the expiration of the Warrants and their
exercise, any of the following events shall occur:
(i) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company; or
(ii) the Company shall offer to all the holders of its Common Stock
any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to subscribe therefore; or
(iii) a dissolution, liquidation or winding-up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed; or
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(iv) there shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the
Company with another entity;
then, in any one or more of said events, the Company shall give written
notice of such event at least twenty (20) days prior to the date fixed as a
record date or the date of closing the transfer books for the determination
of the stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, options or warrants, or
entitled to vote on such proposed dissolution, liquidation, winding up or
sale. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. Failure to give such notice or any
defect therein shall not affect the validity of any action taken in
connection with the declaration or payment of any such divided or
distribution, or the issuance of any convertible or exchangeable securities
or subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding-up or sale.
13. GOVERNING LAW. This Agreement and each Warrant issued hereunder shall be
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governed by and construed in accordance with the substantive laws of the State
of Delaware. The Company hereby agrees to accept service of process by notice
given to it pursuant to the provisions of Section 12.
14. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
GB FOODS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: President
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XXXXXXX, NORTH, XXXXXX & XXXXX, P.C.
By: /s/ Xxxxx X. Xxxxx
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Its: President
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