Exhibit 3(d)
EXECUTION COPY
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THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE
OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID
ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO XXXXXXXXX XXXXXXX CO. THAT SUCH REGISTRATION IS NOT REQUIRED.
Right to Purchase 30,000 Shares of Common
Stock of Xxxxxxxxx Brewing Co. (subject
to adjustment as provided herein)
AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT
No. 3-A August 24, 1999
XXXXXXXXX XXXXXXX CO., a corporation organized under the laws of the
State of Maryland (the "Company"), hereby certifies that, for value received,
XXX XXXXXXXX SR., or assigns (the "Holder"), is entitled, subject to the terms
set forth below, to purchase from the Company after August 24, 1999 at any time
or from time to time before 5:00 p.m., New York time, on June 7, 2002 (the
"Expiration Date"), up to 30,000 fully paid and nonassessable shares of Common
Stock (as hereinafter defined), $.0004 par value per share, of the Company, at a
per share purchase price of $0.50 per share (the "Warrant"), (such purchase
price per share as adjusted from time to time as herein provided is referred to
herein as the "Purchase Price"). The number and character of such shares of
Common Stock and the Purchase Price are subject to adjustment as provided
herein.
1. Definitions. As used herein the following terms, unless the context
otherwise requires, have the following respective meanings:
(a) The term Company shall include Xxxxxxxxx Brewing Co. and any
corporation which shall succeed or assume the obligations of Xxxxxxxxx Xxxxxxx
Co. hereunder.
(b) The term "Common Stock" includes (a) the Company's Common Stock,
$.0004 par value per share, as authorized on the date of the Agreement, (b) any
other capital stock of any class or classes (however designated) of the Company,
authorized on or after such date, the holders of which shall have the right,
without limitation as to amount, either to all or to a share of the balance of
current dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and the holders of which
shall ordinarily, in the absence of contingencies, be entitled to vote for the
election of a majority of directors of the Company (even if the right so to vote
has been suspended by the happening of such a contingency) and (c) any other
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securities into which or for which any of the securities described in (a) or (b)
may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other than Common
Stock) and other securities of the Company or any other person (corporate or
otherwise) which the Holder of the Warrant at any time shall be entitled to
receive, or shall have received, on the exercise of the Warrant, in lieu of or
in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 6 or otherwise.
(d) The term "Registrable Securities" means (i) Common Stock issued
pursuant to the Warrant, (ii) any Common Stock issued or issuable with respect
to the Common Stock referred to in clause (i) above by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization and (iii) any other shares of
Common Stock held by the Holder. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when they have been
distributed to the public pursuant to an offering registered under the
Securities Act of 1933 (the "Securities Act") or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Securities
Act (or any similar rule then in force) or repurchased by the Company. For
purposes of this Warrant, the Holder shall be deemed to be a Holder of
Registrable Securities, and the Registrable Securities shall be deemed to be in
existence, whenever such Holder has the right to acquire directly or indirectly
such Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Holder shall be entitled to exercise the
rights of a Holder of Registrable Securities hereunder (it being understood,
however, that any Registrable Securities which are not shares of Common Stock
shall be converted into or exercised for shares of Common Stock immediately
prior to the closing of any registration pursuant to which such Common Stock is
to be sold).
2. Amendment and Restatement. By execution of this Warrant, the Common
Stock Purchase Warrant executed between the Company and the parties, dated June
7, 1999, (the "June 7th Warrant") is hereby amended and restated in its entirety
and is of no further force and effect. The parties acknowledge and agree that
they have no further rights, interests, claims or obligations whatsoever arising
out of, or relating to, the June 7th Warrant.
3. Exercise of Warrant.
3.1. Number of Shares Issuable upon Exercise. From and after
the date hereof through and including the Expiration Date, the Holder hereof
shall be entitled to receive, upon exercise of this Warrant in whole in
accordance with the terms of subsection 3.2 or upon exercise of this Warrant in
part in accordance with subsection 3.3, shares of Common Stock of the Company,
subject to adjustment pursuant to Section 6.
3.2. Full Exercise. This Warrant may be exercised in full by
the Holder hereof by surrender of this Warrant, with the form of subscription
attached as Exhibit A hereto (the "Subscription Form") duly executed by such
Xxxxxx, to the Company at its principal office or at the
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office of its Warrant agent (as provided in Section 13), accompanied by payment,
in cash or by certified or official bank check payable to the order of the
Company, in the amount obtained by multiplying the number of shares of Common
Stock for which this Warrant is then exercisable by the Purchase Price (as
hereinafter defined) then in effect.
3.3. Partial Exercise. This Warrant may be exercised in part
(but not for a fractional share) by surrender of this Warrant in the manner and
at the place provided in subsection 3.2 except that the amount payable by the
Holder on such partial exercise shall be the amount obtained by multiplying (a)
the number of shares of Common Stock designated by the Holder in the
Subscription Form by (b) the Purchase Price then in effect. On any such partial
exercise, the Company, at its expense, will forthwith issue and deliver to or
upon the order of the Holder hereof a new Warrant of like tenor, in the name of
the Holder hereof or as such Holder (upon payment by such Holder of any
applicable transfer taxes), may request, the number of shares of Common Stock
for which such Warrant may still be exercised.
3.4. Fair Market Value. Fair Market Value of a share of Common
Stock as of a particular date (the "Determination Date") shall mean the Fair
Market Value of a share of the Company's Common Stock. Fair Market Value of a
share of Common Stock as of a Determination Date shall mean:
(a) If the Company's Common Stock is traded on an
exchange or is quoted on the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") National Market System or the NASDAQ SmallCap
Market, then the closing or last sale price, respectively, reported for the last
business day immediately preceding the Determination Date.
(b) If the Company's Common Stock is not traded on an
exchange or on the NASDAQ National Market System or the NASDAQ SmallCap Market
but is traded in the over-the-counter market, then the mean of the closing bid
and asked prices reported for the last business day immediately preceding the
Determination Date.
(c) Except as provided in clause (d) below, if the
Company's Common Stock is not publicly traded, then as the Holder and the
Company agree or in the absence of agreement by arbitration in accordance with
the rules then standing of the American Arbitration Association, before a single
arbitrator to be chosen from a panel of persons qualified by education and
training to pass on the matter to be decided.
(d) If the Determination Date is the date of a
liquidation, dissolution or winding up, or any event deemed to be a liquidation,
dissolution or winding up pursuant to the Company's charter, then all amounts to
be payable per share to holders of the Common Stock pursuant to the charter in
the event of such liquidation, dissolution or winding up, plus all other amounts
to be payable per share in respect of the Common Stock in liquidation under the
charter, assuming for the purposes of this clause (d) that all of the shares of
Common Stock then issuable upon exercise of the Warrant are outstanding at the
Determination Date.
3.5. Company Acknowledgment. The Company will, at the time of
the exercise of the Warrant, upon the request of the Holder hereof acknowledge
in writing its continuing
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obligation to afford to such Holder any rights to which such Holder shall
continue to be entitled after such exercise in accordance with the provisions of
this Warrant. If the Holder shall fail to make any such request, such failure
shall not affect the continuing obligation of the Company to afford to such
Holder any such rights.
3.6. Trustee for Warrant Holder. In the event that a bank or
trust company shall have been appointed as trustee for the Holder of the Warrant
pursuant to subsection 5.2, such bank or trust company shall have all the powers
and duties of a warrant agent appointed pursuant to Section 12 and shall accept,
in its own name for the account of the Company or such successor person as may
be entitled thereto, all amounts otherwise payable to the Company or such
successor, as the case may be, on exercise of this Warrant pursuant to this
Section 3.
4. Delivery of Stock Certificates, etc. on Exercise. The Company agrees
that the shares of Common Stock purchased upon exercise of this Warrant shall be
deemed to be issued to the Holder hereof as the record owner of such shares as
of the close of business on the date on which this Warrant shall have been
surrendered and payment made for such shares as aforesaid. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within 10 days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the Holder hereof, or as such Holder (upon payment by such
Holder of any applicable transfer taxes) may direct in compliance with
applicable securities laws, a certificate or certificates for the number of duly
and validly issued, fully paid and nonassessable shares of Common Stock (or
Other Securities) to which such Holder shall be entitled on such exercise, plus,
in lieu of any fractional share to which such Holder would otherwise be
entitled, cash equal to such fraction multiplied by the then Fair Market Value
of one full share, together with any other stock or other securities and
property (including cash, where applicable) to which such Holder is entitled
upon such exercise, pursuant to Section 3 or otherwise.
5. Adjustment for Reorganization, Consolidation,- Merger, etc.
5.1. Reorganization, Consolidation, Merger, etc. In case at
any time or from time to time, the Company shall (a) effect a reorganization,
(b) consolidate with or merge into any other person, or (c) transfer all or
substantially all of its properties or assets to any other person under any plan
or arrangement contemplating the dissolution of the Company, then, in each such
case, as a condition to the consummation of such a transaction, proper and
adequate provision shall be made by the Company whereby the Holder of this
Warrant, on the exercise hereof as provided in Section 3 at any time after the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution, as the case may be, shall receive, in lieu of the
Common Stock (or Other Securities) issuable on such exercise prior to such
consummation or such effective date, the stock and other securities and property
(including cash) to which such Holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may be, if such
Holder had so exercised this Warrant, immediately prior thereto, all subject to
further adjustment thereafter as provided in Section 6.
5.2. Dissolution. In the event of any dissolution of the
Company following the transfer of all or substantially all of its properties or
assets, the Company, prior to such dissolution, shall at its expense deliver or
cause to be delivered the stock and other securities and property
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(including cash, where applicable) receivable by the Holder of the Warrant after
the effective date of such dissolution pursuant to this Section 5 to a bank or
trust company having its principal office in New York, NY, as trustee for the
Holder of the Warrant.
5.3. Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any transfer)
referred to in this Section 5.3, this Warrant shall continue in full force and
effect and the terms hereof shall be applicable to the shares of stock and other
securities and property receivable on the exercise of this Warrant after the
consummation of such reorganization, consolidation or merger or the effective
date of dissolution following any such transfer, as the case may be, and shall
be binding upon the issuer of any such stock or other securities, including, in
the case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 6. In the
event this Warrant does continue in full force and effect after the consummation
of the transaction described in this Section 5.3, then only in such event will
the Company's securities and property (including cash, where applicable)
receivable by the Holder of the Warrant be delivered to the Trustee as
contemplated by Section 5.2.
6. Extraordinary Events Regarding Common Stock. In the event that the
Company shall (a) issue additional shares of the Common Stock as a dividend or
other distribution on outstanding Common Stock, (b) subdivide its outstanding
shares of Common Stock or (c) combine its outstanding shares of the Common Stock
into a smaller number of shares of the Common Stock, then, in each such event,
the Purchase Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Purchase Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Purchase Price then in effect. The Purchase
Price, as so adjusted, shall be readjusted in the same manner upon the happening
of any successive event or events described herein in this Section 6. The number
of shares of Common Stock that the Holder of this Warrant shall thereafter, on
the exercise hereof as provided in Section 3, be entitled to receive shall be
increased to a number determined by multiplying the number of shares of Common
Stock that would otherwise (but for the provisions of this Section 6) be
issuable on such exercise by a fraction of which (a) the numerator is the
Purchase Price that would otherwise (but for the provisions of this Section 6)
be in effect, and (b) the denominator is the Purchase Price in effect on the
date of such exercise.
7. Certificate as to Adjustments. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable on the
exercise of the Warrant, the Company at its expense will promptly cause its
Chief Financial Officer or other appropriate designee to compute such adjustment
or readjustment in accordance with the terms of the Warrant and prepare a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based, including a
statement of (a) the consideration received or receivable by the Company for any
additional shares of Common Stock (or Other Securities) issued or sold or deemed
to have been issued or sold, (b) the number of shares of Common Stock (or Other
Securities) outstanding or deemed to be outstanding and (c) the Purchase Price
and the number of shares of Common Stock to be received upon exercise of this
Warrant, in effect immediately prior to such adjustment or readjustment and as
adjusted or readjusted as provided in this Warrant. The
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Company will forthwith mail a copy of each such certificate to the Holder of the
Warrant and any Warrant agent of the Company (appointed pursuant to Section 12
hereof).
8. Reservation of Stock, etc. Issuable on Exercise of Warrant;
Financial Statements. The Company will at all times reserve and keep available,
solely for issuance and delivery on the exercise of the Warrant, all shares of
Common Stock (or Other Securities) from time to time issuable on the exercise of
the Warrant. This Warrant entitles the Holder hereof to receive copies of all
financial and other information distributed or required to be distributed to the
holders of the Company's Common Stock.
9. Assignment; Exchange of Warrant. Subject to compliance with
applicable securities laws, this Warrant, and the rights evidenced hereby, may
be transferred by the registered Holder hereof (a "Transferor") with respect to
any or all of the shares of Common Stock due to the Holder under this Warrant.
On the surrender for exchange of this Warrant, with the Transferor's endorsement
in the form of Exhibit B attached hereto (the "Transferor Endorsement Form") and
together with evidence reasonably satisfactory to the Company demonstrating
compliance with applicable securities laws, the Company at its expense but with
payment by the Transferor of any applicable transfer taxes will issue and
deliver to or on the order of the Transferor thereof a new warrant of like
tenor, in the name of the Transferor and/or the transferee(s) specified in such
Transferor Endorsement Form (each a "Transferee"), calling in the aggregate on
the face thereof for the number of shares of Common Stock called for on the face
of the Warrant so surrendered by the Transferor.
10. Replacement of Warrant. On 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 of this
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
11. Registration Rights. FBC hereby provides the Holder with
registration rights as set forth in this Section 11.
(a) Definitions. The following terms, as used in this Section
11, have the following meanings (all terms defined herein in the
singular to have the correlative meanings when used in the plural and
vice versa):
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended from time to time, or any successor statute, and the
rules and regulations promulgated thereunder.
"INITIAL SHARES" means the FBC Common Stock issued to
the Holder upon exercise of the Warrants pursuant to this Agreement.
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"PERSON" means a natural person, a corporation, a
partnership, a limited liability company, a trust, a joint venture, any
regulatory authority or any other entity or organization.
"PIGGYBACK REGISTRATION" means any registration of
Registrable Shares under the Securities Act effected in accordance with
Section 11(b).
"REGISTRABLE SHARES" means (i) the Initial Shares,
and (ii) any other securities issued or issuable with respect to the
Initial Shares by way of stock dividend, stock split or dividend or
distribution in the form of securities or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable Shares,
such securities shall cease to be Registrable Shares when (i) a
registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such
securities shall have been disposed of pursuant to such registration
statement, (ii) such securities shall have been distributed in
accordance with Rule 144, (iii) such securities shall have ceased to be
outstanding, or (iv) such securities are transferred to any Person that
is not an assignee permitted by Section 11.
"REGISTRATION EXPENSES" means all expenses incident
to the Company's performance of or compliance with this Agreement,
including, without limitation, (a) all registration and filing fees,
(b) all registration, filing, qualification and other fees and expenses
of complying with securities or blue sky laws of all jurisdictions in
which the securities are to be registered and any legal fees and
expenses incurred in connection with the blue sky qualifications of the
Registrable Shares and the determination of their eligibility for
investment under the laws of all such jurisdictions, (c) all word
processing, duplicating, printing, messenger and delivery expenses and
(d) the fees and disbursements of counsel for FBC and of its
independent public accountants.
"RULE 144" means Rule 144 promulgated by the SEC
under the Securities Act and any successor provision thereto.
"SEC" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority thereto.
"SECURITIES ACT" means the Securities Act of 1933, as
amended from time to time, or any successor statute, and the rules and
regulations promulgated thereunder.
"SELLING EXPENSES" means all costs and expenses
incident to the Holder's sale of Registrable Shares as provided for in
Section 11 of this Agreement, including, without limitation,
commissions to brokers and/or dealers and fees and expenses of any
Person retained by the Holder in connection with such sale or sales,
but excluding Registration Expenses.
"SHARES" means shares of FBC Common Stock.
(b) Registration Under the Securities Act.
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(i) If the Company at any time proposes to register
any of its equity securities under the Securities Act for its
own account (other than by a registration on Form S-4 or Form
S-8 or any successor or similar form then in effect) in a form
and in a manner that would permit registration of the
Registrable Shares, it will give prompt (but in no event less
than thirty days prior to the proposed date of filing the
registration statement relating to such registration) notice
to the Holder of the Company's intention to do so and of such
Xxxxxx's rights under this Section 11(b). Upon the request of
the Holder made within twenty days after the receipt by the
Holder of any such notice (which request shall specify the
Registrable Shares intended to be disposed of by the Holder)
(the "PIGGYBACK REGISTRATION NOTICE"), the Company will use
commercially reasonable efforts to effect the registration
under the Securities Act of all Registrable Shares which the
Company has been so requested to register by the Holder, to
the extent required to permit the disposition (in accordance
with the manner of distribution contemplated by the Company
with respect to such registration by the Company) of the
Registrable Shares so to be registered; provided, however,
that if, at any time after giving notice of its intention to
register any equity securities and prior to the effective date
of the registration statement filed in connection with such
registration, the Company shall determine for any reason not
to register or to delay registration of such equity
securities, the Company may, at its election, give notice of
such determination to each such Holder and, thereupon, (i) in
the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Shares in
connection with such registration and (ii) in the case of a
determination to delay registering, shall be permitted to
delay registering any Registrable Shares for the same period
as the delay in registering such other equity securities.
(ii) If the Company at any time proposes to register
any of its equity securities for its own account under the
Securities Act as contemplated by this Section 11(b) and such
securities are to be distributed by or through one or more
underwriters, the Company will, if requested by the Holder and
subject to Section 11(b), include the Registrable Shares
requested by the Holder among the securities to be distributed
by such underwriters. The Holder shall become a party to the
underwriting agreement between the Company and such
underwriters; provided, however, that such agreement is
reasonably satisfactory in substance and form to the Company.
(iii) If (A) a registration pursuant to this Section
11(b) involves an underwritten offering of the securities
being registered to be distributed (on a firm commitment
basis) by or through one or more underwriters of recognized
standing under underwriting terms appropriate for such a
transaction and (B) the managing underwriter of such
underwritten offering shall inform the Company and the Holder
requesting such registration by letter of its belief that the
amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or
during the time of) such offering
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within a price range acceptable to the Company, the Company
will include in such registration such amount of securities
which the Company is so advised can be sold in (or during the
time of) such offering as follows: first, all securities
proposed by the Company to be sold for its own account;
second, such Registrable Shares requested to be included in
such registration by the Holder thereof pro rata on the basis
of the amount of such securities so proposed to be sold and so
requested to be included by the holders of Warrants issued in
connection with the Company's 10% Convertible Notes dated June
7, 1999; and third, all other securities of the Company
requested to be included in such registration pro rata on the
basis of the amount of such securities so proposed to be sold
and so requested to be included.
(c) Registration Terms and Procedures. (i) The Holder shall
pay its own share of the Selling Expenses (as the case may be) incurred
in connection with a registration to be effected (whether or not
effected or deemed effected) pursuant to this Agreement. The Company
shall pay all Registration Expenses in connection with a registration
to be effected (whether or not effected or deemed effected) pursuant to
this Agreement.
(ii) In connection with the Company's obligations to
register Registrable Shares pursuant to this Agreement, the
Company will use commercially reasonable efforts to effect
such registration so as to permit the sale of any Registrable
Shares included in such registration in accordance with the
intended method or methods of distribution thereof, and
pursuant thereto the Company will as expeditiously as possible
prepare and (as soon thereafter as practicable) file with the
SEC the requisite registration statement containing all
information required thereby to effect such registration and
thereafter use commercially reasonable efforts to cause such
registration statement to become and remain effective in
accordance with the terms of this Agreement.
(iii) The Holder shall furnish to the Company such
information regarding the Holder, the Registrable Shares held
by the Holder and the intended plan of distribution of such
securities as the Company may from time to time reasonably
request in writing in connection with such registration. If
any registration statement refers to the Holder by name or
otherwise as the holder of any securities of the Company, then
the Holder shall have the right to require that such reference
to be in a form reasonably satisfactory to the Holder or in
the event that such reference to the Holder by name or
otherwise is not required by the Securities Act or any similar
federal or state blue sky statute and the rules and
regulations thereunder then in force, the deletion of the
reference to the Holder.
(d) [INTENTIONALLY OMITTED]
(e) Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, the Company will give the
Holder, in the case of registration of Registrable Shares pursuant to
Section 11(b), its underwriters or agents, if any, and its respective
counsel and accountants reasonable access to its books and records and
such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of the
Holder's and such
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underwriters' or agents' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
(f) Indemnification. The Company and the Holder acknowledge
and agree that as a condition precedent to the exercise of the
registration rights herein contained, the Company and the Holder
electing to avail itself of the rights specified in this Section 11
shall each agree to and shall exchange such indemnities as are
customary and reasonable in connection with public offerings of
securities in circumstances similar to the circumstances of any
offering effected pursuant to the rights herein contained, which
indemnities shall be acceptable to the Company and its counsel in their
sole discretion. The Holder shall provide such information and
undertake such other actions as requested by the Company in connection
with such registration.
(g) [INTENTIONALLY OMITTED]
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(h) Assignment. The rights of the Holder hereunder shall only
be assignable in connection with the transfer of Registrable Shares by
the Holder that is required by operation of law, or in connection with
a transfer by the Holder by gift or to heirs, executors, legal
representatives and immediately family members or any other Person who
agree or agrees in writing to be bound by all the terms of this
Agreement.
(i) Termination of Certain Rights. The rights and obligations
hereunder of the Holder shall terminate with respect to such party at
such time when neither it nor any of its permitted assigns holds
Registrable Shares or two years from the date of this Agreement,
whichever occurs earlier; provided, however, that the provisions of
Section 11(f) and the rights of any party hereto with respect to the
breach of any provision hereof shall survive termination of this
Agreement.
12. Warrant Agent. The Company may, by written notice to the Holder of
the Warrant, appoint an agent for the purpose of issuing Common Stock (or Other
Securities) on the exercise of this Warrant pursuant to Section 3, exchanging
this Warrant pursuant to Section 9, and replacing this Warrant pursuant to
Section 10, or any of the foregoing, and thereafter any such issuance, exchange
or replacement, as the case may be, shall be made at such office by such agent.
13. Transfer on the Company's Books. Until this Warrant is transferred
on the books of the Company, the Company may treat the registered Holder hereof
as the absolute owner hereof for all purposes, notwithstanding any notice to the
contrary.
14. Notices, etc. All notices and other communications from the Company
to the Holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such Holder or, until any such Holder furnishes to the
Company an address, then to, and at the address of, the last Holder of this
Warrant who has so furnished an address to the Company.
15. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of New York. Any dispute relating to this Warrant shall be
adjudicated in New York State. The headings in this Warrant are for purposes of
reference only, and shall not limit or otherwise affect any of the terms hereof.
The invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision.
16. Maximum Exercise. The Holder shall not be entitled to exercise, on
an exercise date, this Warrant in connection with that number of shares of
Common Stock which would be in excess of the sum of (i) the number of shares of
Common Stock beneficially owned by the Holder and its affiliates on an exercise
date, and (ii) the number of shares of Common Stock issuable upon the exercise
of this Warrant with respect to which the determination of this proviso is being
made on an exercise date, which would result in beneficial ownership by the
Holder and its affiliates of more than 9.99% of the outstanding shares of Common
Stock of the Company on such exercise date. For the purposes of the proviso to
the immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13d-3 thereunder. Subject to the foregoing, the Holder
shall not be limited to aggregate exercises which would result in the issuance
of more than 9.99%. The restriction described in this paragraph may be revoked
upon 75 days prior notice from the Holder to the Company.
11
IN WITNESS WHEREOF, the Company has executed this Warrant under seal as
of the date first written above.
XXXXXXXXX XXXXXXX CO.
By: __________________________
Name: X. Xxxxx Xxxxxx
Title: Chairman and CEO
Witness:
--------------------------
12
Exhibit A
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: Xxxxxxxxx Brewing Co.
The undersigned, the Holder of the within Warrant, hereby irrevocably elects to
exercise this Warrant for, and to purchase thereunder, _______________ shares of
Common Stock of Xxxxxxxxx Brewing Co. and herewith makes payment of
$_______________ therefor, and requests that the certificates for such shares be
issued in the name of, and delivered to _______________ whose address is
____________________________________________________ _______________.
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable upon exercise of the within Warrant shall
be made pursuant to registration of the Common Stock under the Securities Act of
1933, as amended (the "Securities Act") or pursuant to an exemption from
registration under the Securities Act.
Dated: _______________
--------------------------------------------
(Signature must conform to name of Xxxxxx as
specified on the face of the Warrant)
--------------------------------------------
(Address)
13
Exhibit B
FORM OF TRANSFEROR ENDORSEMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto the person(s) named below under the heading "Transferees" the
right represented by the within Warrant to purchase the percentage and number of
shares of Common Stock of Xxxxxxxxx Brewing Co. to which the within Warrant
relates specified under the headings "Percentage Transferred" and "Number
Transferred," respectively, opposite the name (s) of such person(s) and appoints
each such person Attorney to transfer its respective right on the books of
Xxxxxxxxx Xxxxxxx Co. with full power of substitution in the premises.
--------------------------------------------------------------------------------
Percentage Number
Tranferees Transferred Transferred
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: 19 --------------------------------------------
---------------, --- (Signature must conform to name of Holder as
specified on the face of the warrant)
Signed in the presence of:
------------------------------ --------------------------------------------
(Name) (address)
--------------------------------------------
ACCEPTED AND AGREED: (address)
[TRANSFEREE]
------------------------------
(Name)
14
