Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 7 29K
2: EX-4.1 Instrument Defining the Rights of Security Holders 50 192K
3: EX-4.2 Instrument Defining the Rights of Security Holders 20 73K
4: EX-4.3 Instrument Defining the Rights of Security Holders 10 31K
5: EX-4.4 Instrument Defining the Rights of Security Holders 17 76K
6: EX-4.5 Instrument Defining the Rights of Security Holders 24 95K
7: EX-4.6 Instrument Defining the Rights of Security Holders 10 28K
EX-4.4 — Instrument Defining the Rights of Security Holders
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EXHIBIT 4.4
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS.
BROTHERS GOURMET COFFEES, INC.
Warrant for the Purchase of Shares of Common Stock,
par value $.0001 per Share
No. _______ 1,245,000 Shares
(pursuant to the vesting
schedule set forth herein)
THIS CERTIFIES that, for receipt in hand of previous value received, BIB
HOLDINGS (BERMUDA) LTD. (the "Holder") is entitled to subscribe for and purchase
from BROTHERS GOURMET COFFEES, INC., a Delaware corporation (the "Company"),
upon the terms and conditions set forth herein, at any time or from time to time
after the date hereof, and before 5:00 P.M. New York time on the date that is
ten years after the date hereof (the "Exercise Period"), up to 1,245,000 shares
of the Company's Common Stock, par value $.0001 per share ("Common Stock"), at a
price of $.25 per Share (the "Exercise Price"), pursuant to the vesting schedule
set forth in Section 5(a) hereof. This Warrant is the warrant (collectively,
including any warrants issued upon the exercise or transfer of any such
warrants, in whole or in part, the "Warrants") issued pursuant to the Senior
Subordinated Note Agreement, dated of even date herewith, between Dilmun
Financial Services, an unlimited Irish company and the Company (the "Note
Agreement"), pursuant to which such entity, among other things, has agreed to
loan the Company up to $15,000,000 on the terms set forth in the Note Agreement.
The term the "Holder" as used herein shall include any transferee to whom this
Warrant has been transferred in accordance with the terms of this Warrant.
The number of shares of Common Stock issuable upon exercise of the Warrants
(the "Warrant Shares") and the Exercise Price may be adjusted from time to time
as hereinafter set forth.
35. This Warrant may be exercised during the Exercise Period, as to the
whole or any lesser number of whole Warrant Shares, by the surrender of this
Warrant (with the appropriate Election Form at the end hereof duly executed) to
the Company at its office at 2255 Glades Road, Suite 100E, Boca Raton, Florida
33431, or at such other place as is designated
1
in writing by the Company, except as provided pursuant to Section 2 hereof,
together with a certified or bank cashier's check payable to the order of the
Company in an amount equal to the Exercise Price multiplied by the number of
Warrant Shares for which this Warrant is being exercised (the "Stock Purchase
Price").
36. (a) In lieu of the payment of the Stock Purchase Price, the Holder
shall have the right (but not the obligation), to require the Company to convert
this Warrant, in whole or in part, into shares of Common Stock (the "Conversion
Right") as provided for in this Section 2. Upon exercise of the Conversion
Right, the Company shall deliver to the Holder (without payment by the Holder of
any of the Stock Purchase Price) that number of shares of Common Stock (the
"Conversion Shares") equal to the quotient obtained by dividing (x) the value of
this Warrant (or portion thereof as to which the Conversion Right is being
exercised if the Conversion Right is being exercised in part) at the time the
Conversion Right is exercised (determined by subtracting the aggregate Stock
Purchase Price of the shares of Common Stock as to which the Conversion Right is
being exercised in effect immediately prior to the exercise of the Conversion
Right from the aggregate Current Market Price (as defined in Section 6(c)
hereof) of the shares of Common Stock as to which the Conversion Right is being
exercised immediately prior to the exercise of the Conversion Right) by (y) the
Current Market Price of one share of Common Stock immediately prior to the
exercise of the Conversion Right.
(b) The Conversion Rights provided under this Section 2 may be
exercised in whole or in part and at any time and from time to time during the
Exercise Period. In order to exercise the Conversion Right, the Holder shall
surrender to the Company, at its offices, this Warrant with the Cashless
Exercise Form annexed hereto duly executed. The presentation and surrender
shall be deemed a waiver of the Holder's obligation to pay all or any portion of
the aggregate purchase price payable for the shares of Common Stock as to which
such Conversion Right is being exercised. This Warrant (or so much thereof as
shall have been surrendered for conversion) shall be deemed to have been
converted immediately prior to the close of business on the day of surrender of
such Warrant for conversion in accordance with the foregoing provisions.
37. Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares or
Conversion Shares issuable upon such exercise or conversion, notwithstanding
that the transfer books of the Company shall then be closed or certificates
representing such Warrant Shares or Conversion Shares shall not then have been
actually delivered to the Holder. As soon as practicable after each such
exercise or conversion of this Warrant, the Company shall issue and deliver to
the Holder a certificate or certificates for the Warrant Shares or Conversion
Shares issuable upon such exercise or conversion, registered in the name of the
Holder or its designee. If this Warrant should be exercised or converted in
part only, the Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the right of the Holder to purchase
the balance of the Warrant Shares (or portions thereof) subject to purchase
hereunder.
38. Any Warrants issued upon the transfer, exercise or conversion in part
of this Warrant shall be numbered and shall be registered in a Warrant Register
as they are issued. The Company shall be entitled to treat the registered
holder of any Warrant on the Warrant
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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 or
transfer of Warrants which are registered or 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 or transfer, or with the knowledge of such facts
that its participation therein amounts to bad faith. This Warrant shall be
transferable only on the books of the Company upon delivery thereof 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. In all cases of transfer by an attorney, executor, administrator,
guardian, or other legal representative, duly authenticated evidence of his
or its authority shall be produced. Upon any registration of transfer, the
Company shall deliver a new Warrant or Warrants to the person entitled
thereto. This Warrant may be exchanged, at the option of the Holder thereof,
for another Warrant, or other Warrants of different denominations, of like
tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent.
39. (a) This Warrant shall entitle the Holder to purchase up to 1,245,000
shares of Common Stock in the aggregate, subject to the following vesting
schedule:
(1) From and after the date hereof, the Holder shall be entitled
to purchase up to 265,600 shares of Common Stock in the aggregate;
(2) From and after the date that is one year after the date
hereof, the Holder shall be entitled to purchase up to an additional 265,600
shares of Common Stock in the aggregate (for a total of up to 531,200 shares of
Common Stock in the aggregate), provided that the loan under the Note Agreement
shall not have been prepaid by the Company in whole in accordance with the terms
of the Note Agreement (a "Loan Prepayment") prior to the date that is one year
after the date hereof;
(3) From and after the date that is two years after the date
hereof, the Holder shall be entitled to purchase up to an additional 182,600
shares of Common Stock in the aggregate (for a total of up to 713,800 shares of
Common Stock in the aggregate), provided that there shall not have been a Loan
Prepayment prior to the date that is two years after the date hereof;
(4) From and after the date that is three years after the date
hereof, the Holder shall be entitled to purchase up to an additional 166,000
shares of Common Stock in the aggregate (for a total of up to 879,800 shares of
Common Stock in the aggregate), provided that there shall not have been a Loan
Prepayment prior to the date that is three years after the date hereof;
(5) From and after the date that is four years after the date
hereof, the Holder shall be entitled to purchase up to an additional 182,600
shares of Common Stock in the aggregate (for a total of up to 1,062,400 shares
of Common Stock in the aggregate), provided that there shall not have been a
Loan Prepayment prior to the date that is four years after the date hereof;
3
(6) From and after the date that is five years after the date
hereof, the Holder shall be entitled to purchase up to an additional 182,600
shares of Common Stock in the aggregate (for a total of up to 1,245,000 shares
of Common Stock in the aggregate), provided that there shall not have been a
Loan Prepayment prior to the date that is five years after the date hereof;
(b) [Intentionally Omitted].
(c) As soon as practicable following the date hereof, the Company
shall at all times reserve and keep available out of its authorized and unissued
Common Stock, when and if such shares become legally available, solely for the
purpose of providing for the exercise of the rights to purchase all Warrant
Shares and/or Common Shares granted pursuant to this Warrant, such numbers of
shares of Common Stock as shall from time to time be sufficient therefor,
including such additional shares as may issuable pursuant to Sections 6, 7 and 8
of this Warrant. The Company covenants that all shares of Common Stock issuable
upon exercise of this Warrant, upon receipt by the Company of the full Exercise
Price therefor, and all shares of Common Stock issuable upon conversion of this
Warrant, shall be validly issued, fully paid, and nonassessable, without any
personal liability attaching to the ownership thereof, and will not be issued in
violation of any preemptive rights of stockholders, option holders, warrant
holders and any other persons and the Holders will receive good title to the
securities purchased by them, respectively, free and clear of all liens,
security interests, pledges, charges, encumbrances, stockholders' agreements and
voting trusts which might be created by acts or omissions to act of the Company.
(d) If at any time during the Exercise Period the Holder duly exercises
all or a portion of this Warrant, and the Company does not have a sufficient
number of shares of Common Stock to issue upon such exercise, the Company shall
first issue all of its then available shares of authorized but unissued shares
of Common Stock to the Holder and deliver such Warrant Shares and/or Common
Shares to the Holder along with a notice (the "Default Notice") setting forth in
reasonable detail a calculation of the number of shares which were issued to the
Holder out of the authorized but unissued shares of Common Stock and the number
of shares which the Company was unable to issue in full satisfaction of the
number of shares set forth in the Election Form with respect to such exercise
(such unissued shares being referred to as the "Phantom Stock"). The Default
Notice also shall specify the date that the Company shall deliver payment to the
Holder in lieu of the Phantom Stock in accordance with this Warrant, which date
shall be within 45 days from the date of delivery of the Default Notice to the
Holder. Upon the receipt of a Default Notice, the Holder shall automatically
have the right to receive, in lieu of such number of shares of Phantom Stock, a
payment calculated pursuant to, and to be paid in accordance with, this Section
5(d) (the "Phantom Stock Payment").
(i) In the event that the Election Form with respect to any exercise
of this Warrant is delivered to the Company from and after the date hereof and
prior to the date that is two years after the date hereof, the Holder shall be
entitled to receive a payment from the Company equal to the number of shares of
Phantom Stock set forth in each Default Notice, multiplied by an amount equal to
the difference between (x) 110% of the Current Market Price per share of Common
Stock as of the date of such Default Notice less (y) the Exercise Price per
share of Common Stock.
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(ii) In the event that the Election Form with respect to any
exercise of this Warrant is delivered to the Company from and after the date
that is two years after the date hereof and prior to the date that is two and
one half years after the date hereof, the Holder shall be entitled to receive
a payment from the Company equal to the number of shares of Phantom Stock set
forth in each Default Notice multiplied by an amount equal to the difference
between (x) 115% of the Current Market Price per share of Common Stock as of
the date of such Default Notice less (y) the Exercise Price per share of
Common Stock.
(iii) In the event that the Election Form with respect to any
exercise of this Warrant is delivered to the Company from and after the date
that is two and one half years after the date hereof and prior to the date that
is three years after the date hereof, the Holder shall be entitled to receive a
payment from the Company equal to the number of shares of Phantom Stock set
forth in each Default Notice multiplied by an amount equal to the difference
between (x) 120% of the Current Market Price per share of Common Stock as of the
date of such Default Notice less (y) the Exercise Price per share of Common
Stock.
(iv) In the event that the Election Form with respect to any
exercise of this Warrant is delivered to the Company from and after the date
that is three years after the date hereof and prior to the date that is
three and one half years after the date hereof, the Holder shall be entitled
to receive a payment from the Company equal to the number of shares of
Phantom Stock set forth in each Default Notice multiplied by an amount equal
to the difference between (x) 125% of the Current Market Price per share of
Common Stock as of the date of such Default Notice less (y) the Exercise
Price per share of Common Stock.
(v) In the event that the Election Form with respect to any
exercise of this Warrant is delivered to the Company from and after the date
that is three and one half years after the date hereof and prior to the
expiration of the Exercise Period, the Holder shall be entitled to receive a
payment from the Company equal to the number of shares of Phantom Stock set
forth in each Default Notice multiplied by an amount equal to the difference
between (x) 130% of the Current Market Price per share of Common Stock as of
the date of such Default Notice less (y) the Exercise Price per share of
Common Stock.
(vi) Each Phantom Stock Payment shall be made to the Holder in
cash at the Holder's address as set forth in Section 15 hereof, or at such other
address as specified by the Holder. In the event that the Company defaults in
its obligation to make any Phantom Stock Payment pursuant to the terms of this
Warrant, the Holder, in its sole discretion, may elect to (A) enforce its rights
hereunder to collect such Phantom Stock Payment, by the commencement of legal
proceedings or otherwise, or (B) cause the Company to execute and deliver to
the Holder a Senior Subordinated Promissory Note in favor of the Holder in the
principal amount of such Phantom Stock Payment, in the form attached hereto as
Exhibit A. Notwithstanding the foregoing, in the event that either (A) a
Default or an Event of Default (as such terms are defined in the Loan and
Security Agreement dated as of May 29, 1996 between the Company and Sanwa
Business Credit Corporation, as amended (the "Loan Agreement")) under the Loan
Agreement exists at the time that the Company is required to make any Phantom
Stock Payment in cash or (B) after giving effect to such Phantom Stock Payment
in cash, a Default or an Event of Default would occur under the Loan Agreement,
5
then the Company may deliver to the Holder, in lieu of the Phantom Stock
Payment in cash, a Senior Subordinated Promissory Note in favor of the Holder
in the principal amount of such Phantom Stock Payment, in the form attached
hereto as Exhibit A.
40. (a) If the Company shall, at any time after the date hereof, (i)
declare a dividend on the outstanding Common Stock payable in shares of its
capital stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock by reclassification of the Common Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then, in each case, the Exercise
Price, and the number and kind of securities issuable upon exercise or
conversion of this Warrant, in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination, or
reclassification, shall be proportionately adjusted so that the Holder after
such time shall be entitled to receive the aggregate number and kind of shares
which, if such Warrant had been exercised or converted immediately prior to such
time, he would have owned upon such exercise or conversion and been entitled to
receive by virtue of such dividend, subdivision, combination, or
reclassification. Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) If the Company shall, at any time after the date hereof,
distribute to all holders of Common Stock (including any such distribution made
to the stockholders of the Company in connection with a consolidation or merger
in which the Company is the continuing corporation) evidences of its
indebtedness, cash or assets (other than distributions and dividends payable in
shares of Common Stock), or rights, options, or warrants to subscribe for or
purchase Common Stock, or securities convertible into or exchangeable for shares
of Common Stock, then, in each case, the Exercise Price shall be adjusted by
multiplying the Exercise Price in effect immediately prior to the record date
for the determination of stockholders entitled to receive such distribution by a
fraction, the numerator of which shall be the Current Market Price per share of
Common Stock on such record date, less the fair market value (as determined in
good faith by the board of directors of the Company, whose determination shall
be conclusive absent manifest error) of the portion of the evidences of
indebtedness or assets so to be distributed, or of such rights, options, or
warrants or convertible or exchangeable securities, or the amount of such cash,
applicable to one share, and the denominator of which shall be such Current
Market Price per share of Common Stock. Such adjustment shall be made whenever
any such distribution is made, and shall become effective on the record date for
the determination of stockholders entitled to receive such distribution.
(c) For the purpose of this Warrant, the "Current Market Price" per
share of Common Stock on any date shall be deemed to be the average of the daily
closing prices for the 30 consecutive trading days immediately preceding the
date in question. The closing price for each day shall be the last reported
sales price regular way or, in case no such reported sale takes place on such
day, the closing bid price regular way, in either case on the principal national
securities exchange (including, for purposes hereof, the NASDAQ National Market
System) on which the Common Stock is listed or admitted to trading or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange, the highest reported bid price for the Common Stock as furnished by
the National Association of Securities Dealers, Inc. through NASDAQ or a similar
organization if NASDAQ is no longer reporting such
6
information. If on any such date the Common Stock is not listed or admitted
to trading on any national securities exchange and is not quoted by NASDAQ or
any similar organization, the fair value of a share of Common Stock on such
date, as determined an independent investment banking firm mutually
acceptable to the Holder and the Company , whose determination shall be
conclusive, shall be used.
(d) No adjustment in the Exercise Price shall be required if such
adjustment is less than $.05; PROVIDED, HOWEVER, that any adjustments which by
reason of this Section 6 are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under
this Section 6 shall be made to the nearest cent or to the nearest
one-thousandth of a share, as the case may be.
(e) In any case in which this Section 6 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer, until the occurrence of such
event, issuing to the Holder, if the Holder exercised or converted this Warrant
after such record date, the shares of Common Stock, if any, issuable upon such
exercise or conversion over and above the shares of Common Stock, if any,
issuable upon such exercise or conversion on the basis of the Exercise Price in
effect prior to such adjustment; PROVIDED, HOWEVER, that the Company shall
deliver to the Holder a due bill or other appropriate instrument evidencing the
Holder's right to receive such additional shares upon the occurrence of the
event requiring such adjustment.
(f) Upon each adjustment of the Exercise Price as a result of the
calculations made in Section 6(b) hereof, this Warrant shall thereafter evidence
the right to purchase, at the adjusted Exercise Price, that number of shares
(calculated to the nearest thousandth) obtained by dividing (i) the product
obtained by multiplying the number of shares purchasable upon exercise of this
Warrant prior to adjustment of the number of shares by the Exercise Price in
effect prior to adjustment of the Exercise Price, by (ii) the Exercise Price in
effect after such adjustment of the Exercise Price.
(g) Whenever there shall be an adjustment as provided in this Section
6, the Company shall promptly cause written notice thereof to be sent by
registered mail, postage prepaid, to the Holder, at its address as it shall
appear in the Warrant Register, which notice shall be accompanied by an
officer's certificate setting forth the number of Warrant Shares purchasable
upon the exercise of this Warrant and the Exercise Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment and
the computation thereof, which officer's certificate shall be conclusive
evidence of the correctness of any such adjustment absent manifest error.
(h) The Company shall not be required to issue fractions of shares of
Common Stock or other capital stock of the Company upon the exercise or
conversion of this Warrant. If any fraction of a share would be issuable on the
exercise or conversion of this 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 of such share of Common Stock on the date
of exercise or conversion of this Warrant.
7
41. (a) If, at any time after the date hereof, the Company shall effect
any consolidation with or merger of the Company with or into another corporation
(other than a merger or consolidation in which the Company is the surviving or
continuing corporation), or in case of any sale, lease, or conveyance to another
corporation of the property and assets of any nature of the Company as an
entirety or substantially as an entirety, such successor, leasing, or purchasing
corporation, as the case may be, shall (i) execute with the Holder an agreement
providing that the Holder shall have the right thereafter to receive upon
exercise or conversion of this Warrant solely the kind and amount of shares of
stock and other securities, property, cash, or any combination thereof
receivable upon such consolidation, merger, sale, lease, or conveyance by a
holder of the number of shares of Common Stock for which this Warrant might have
been exercised or converted immediately prior to such consolidation, merger,
sale, lease, or conveyance, and (ii) make effective provision in its certificate
of incorporation or otherwise, if necessary, to effect such agreement. Such
agreement shall provide for adjustments which shall be as nearly equivalent as
practicable to the adjustments in Section 6.
(b) If, at any time after the date hereof, the Company shall effect
any reclassification or change of the shares of Common Stock issuable upon
exercise or conversion of this Warrant (other than a change in par value or from
no par value to a specified par value, or as a result of a subdivision or
combination, but including any change in the shares into two or more classes or
series of shares), or in case of any consolidation or merger of another
corporation into the Company in which the Company is the continuing corporation
and in which there is a reclassification or change (including a change to the
right to receive cash or other property) of the shares of Common Stock (other
than a change in par value, or from no par value to a specified par value, or as
a result of a subdivision or combination, but including any change in the shares
into two or more classes or series of shares), the Holder shall have the right
thereafter to receive upon exercise or conversion of this Warrant solely the
kind and amount of shares of stock and other securities, property, cash, or any
combination thereof receivable upon such reclassification, change,
consolidation, or merger by a holder of the number of shares of Common Stock for
which this Warrant might have been exercised or converted immediately prior to
such reclassification, change, consolidation, or merger. Thereafter,
appropriate provision shall be made for adjustments which shall be as nearly
equivalent as practicable to the adjustments in Section 6.
(c) The above provisions of this Section 7 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases, or conveyances.
42. In case, at any time after the date hereof, the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
8
(b) to issue any rights, warrants, or other securities to all holders
of Common Stock entitling them to purchase any additional shares of Common Stock
or any other rights, warrants, or other securities; or
(c) to effect any reclassification or change of outstanding shares of
Common Stock, or any consolidation, merger, sale, lease, or conveyance of
property, described in Section 7; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Exercise Price;
then, and in any one or more of such cases, the Company shall give written
notice thereof, by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to (i) the date as of which the holders of record of shares of Common
Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined, (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up, or (iii) the date of such action which would require
an adjustment to the Exercise Price.
43. The issuance of any shares or other securities upon the exercise or
conversion of this Warrant, and the delivery of certificates or other
instruments representing such shares or other securities, shall be made without
charge to the Holder for any tax or other charge in respect of such issuance.
The Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of any certificate
in a name other than that of the Holder and the Company shall not be required to
issue or deliver any such certificate unless and until the person or persons
requesting the issue thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.
44. (a) If, at any time during the ten-year period following the date
hereof, the Company shall file a registration statement (other than on Form S-4,
Form S-8, any other form that does not permit secondary sales or any successor
form) with the Securities and Exchange Commission (the "Commission") while any
Warrants are outstanding, the Company shall give all the then holders of any
Warrants (the "Eligible Holders") at least 45 days prior written notice of the
filing of such registration statement. If requested by any Eligible Holder in
writing within 30 days after receipt of any such notice, the Company shall, at
the Company's sole expense (other than the fees and disbursements of counsel for
the Eligible Holders and the underwriting discounts or commissions, if any,
payable in respect of the Securities (as defined below) sold by any Eligible
Holder), register or qualify all or, at each Eligible Holder's option, any
portion of the Securities of any Eligible Holders who shall have made such
request,
9
concurrently with the registration of such other securities, all to the
extent requisite to permit the public offering and sale of the Securities
through the facilities of all appropriate securities exchanges and the
over-the-counter market, and will use its best efforts through its officers,
directors, auditors, and counsel to cause such registration statement to
become effective as promptly as practicable. Notwithstanding the foregoing,
if the managing underwriter of any such offering shall advise the Company in
writing that, in its opinion, the distribution of all or a portion of the
Securities requested to be included in the registration concurrently with the
securities being registered by the Company would materially adversely affect
the distribution of such securities by the Company for its own account, then
any Eligible Holder who shall have requested registration of his or its
Securities shall delay the offering and sale of such Securities (or the
portions thereof so designated by such managing underwriter) for such period,
not to exceed 90 days (the "Delay Period"), as the managing underwriter shall
request, provided that no such delay shall be required as to any Securities
if any securities of the Company are included in such registration statement
and eligible for sale during the Delay Period for the account of any person
other than the Company and any Eligible Holder unless the securities included
in such registration statement and eligible for sale during the Delay Period
for such other person shall have been reduced pro rata to the reduction of
the Securities which were requested to be included and eligible for sale
during the Delay Period in such registration. As used herein, "Securities"
shall mean the Warrant Shares and the Conversion Shares, which have not been
previously sold pursuant to a registration statement or Rule 144 promulgated
under the Act.
(b) If, on any three occasions during the ten-year period following
the date hereof, the Company shall receive a written request, from Eligible
Holders who in the aggregate own (or upon exercise of all Warrants then
outstanding would own) a majority of the total number of Securities then
included (or upon such exercise would be included) in the Securities (the
"Majority Holders"), to register the sale of all or part of such Securities, the
Company shall, at the Company's sole expense (other than fees and disbursements
of counsel for the Eligible Holders and the underwriting discounts or
commissions, if any, payable in respect of the Securities sold by any Eligible
Holder), as promptly as practicable, prepare and file with the Commission a
registration statement sufficient to permit the public offering and sale of the
Securities through the facilities of all appropriate securities exchanges and
the over-the-counter market, and will use its best efforts through its officers,
directors, auditors, and counsel to cause such registration statement to become
effective as promptly as practicable. Within three business days after
receiving any request contemplated by this Section 10(b), the Company shall give
written notice to all the other Eligible Holders, advising each of them that the
Company is proceeding with such registration and offering to include therein all
or any portion of any such other Eligible Holder's Securities, provided that the
Company receives a written request to do so from such Eligible Holder within 20
days after receipt by him or it of the Company's notice.
(c) In the event of a registration pursuant to the provisions of this
Section 10, the Company shall use its best efforts to cause the Securities so
registered to be registered or qualified for sale under the securities or blue
sky laws of such jurisdictions as the Holder or such holders may reasonably
request; PROVIDED, HOWEVER, that the Company shall not be required to qualify to
do business in any state by reason of this Section 10(c) in which it is not
otherwise required to qualify to do business.
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(d) The Company shall keep effective any registration or
qualification contemplated by this Section 10 and shall from time to time amend
or supplement each applicable registration statement, preliminary prospectus,
final prospectus, application, document, and communication for up to one (1)
year following the effectiveness of the registration statement. Notwithstanding
the foregoing, if the registration by the Company of the Securities is eligible
for use of a registration statement on Form S-3 or any successor form, the
Company shall maintain the effectiveness of such registration statement for such
period of time as shall be required to permit the Eligible Holders to complete
the offer and sale of the Securities covered thereby.
(e) In the event of a registration pursuant to the provisions of this
Section 10, the Company shall furnish to each Eligible Holder such number of
copies of the registration statement and of each amendment and supplement
thereto (in each case, including all exhibits), such reasonable number of
copies of each prospectus contained in such registration statement and each
supplement or amendment thereto (including each preliminary prospectus), all of
which shall conform to the requirements of the Act and the rules and regulations
thereunder, and such other documents, as any Eligible Holder may reasonably
request to facilitate the disposition of the Securities included in such
registration.
(f) In the event of a registration pursuant to the provisions of this
Section 10, the Company shall furnish each Eligible Holder of any Securities so
registered with an opinion of its counsel (reasonably acceptable to the Eligible
Holders) to the effect that (i) the registration statement has become effective
under the Act and no order suspending the effectiveness of the registration
statement, preventing or suspending the use of the registration statement, any
preliminary prospectus, any final prospectus, or any amendment or supplement
thereto has been issued, nor has the Commission or any securities or blue sky
authority of any jurisdiction instituted or threatened to institute any
proceedings with respect to such an order, (ii) the registration statement and
each prospectus forming a part thereof (including each preliminary prospectus),
and any amendment or supplement thereto, complies as to form with the Act and
the rules and regulations thereunder, and (iii) such counsel has no knowledge of
any material misstatement or omission in such registration statement or any
prospectus, as amended or supplemented. Such opinion shall also state the
jurisdictions in which the Securities have been registered or qualified for sale
pursuant to the provisions of Section 10(c).
(g) In the event of a registration pursuant to the provisions of this
Section 10, the Company shall enter into a cross-indemnity agreement and a
contribution agreement, each in customary form, with each underwriter, if any,
and, if requested, enter into an underwriting agreement containing conventional
representations, warranties, allocation of expenses, and customary closing
conditions, including, but not limited to, opinions of counsel and accountants'
cold comfort letters, with any underwriter who acquires any Securities.
(h) The Company agrees that until all the Securities have been sold
under a registration statement or pursuant to Rule 144 under the Act, it shall
keep current in filing all reports, statements and other materials required to
be filed with the Commission to permit holders of the Securities to sell such
securities under Rule 144.
11
45. (a) Subject to the conditions set forth below, the Company agrees to
indemnify and hold harmless each Eligible Holder, its officers, directors,
partners, employees, agents, and counsel, and each person, if any, who controls
any such person within the meaning of Section 15 of the Act or Section 20(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and
against any and all loss, liability, charge, claim, damage, and expense
whatsoever (which shall include, for all purposes of this Section 11, but not be
limited to, reasonable attorneys' fees and any and all reasonable expense
whatsoever incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), as and when incurred,
arising out of, based upon, or in connection with (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any registration
statement, preliminary prospectus, or final prospectus (as from time to time
amended and supplemented), or any amendment or supplement thereto, relating to
the sale of any of the Securities, or (B) in any application or other document
or communication (in this Section 11 collectively called an "application")
executed by or on behalf of the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
register or qualify any of the Securities under the securities or blue sky laws
thereof or filed with the Commission or any securities exchange; or any omission
or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, unless such statement
or omission was made in reliance upon and in conformity with written information
furnished to the Company with respect to such Eligible Holder by or on behalf of
such person expressly for inclusion in any registration statement, preliminary
prospectus, or final prospectus, or any amendment or supplement thereto, or in
any application, as the case may be, or (ii) any breach of any representation,
warranty, covenant, or agreement of the Company contained in this Warrant. The
foregoing agreement to indemnify shall be in addition to any liability the
Company may otherwise have, including liabilities arising under this Warrant.
If any action is brought against any Eligible Holder or any of its
officers, directors, partners, employees, agents, or counsel, or any controlling
persons of such person (an "indemnified party") in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph, such
indemnified party or parties shall promptly notify the Company in writing of the
institution of such action (but the failure so to notify shall not relieve the
Company from any liability pursuant to this Section 11(a)) and the Company shall
promptly assume the defense of such action, including the employment of counsel
(reasonably satisfactory to such indemnified party or parties) and payment of
expenses. Such indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such action or the Company shall not have
promptly employed counsel reasonably satisfactory to such indemnified party or
parties to have charge of the defense of such action or such indemnified party
or parties shall have reasonably concluded that there may be one or more legal
defenses available to it or them or to other indemnified parties which are
different from or additional to those available to the Company, in any of which
events such fees and expenses shall be borne by the Company and the Company
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties. Anything in this Section 11 to the contrary
notwithstanding, the Company shall not be liable for any settlement of any such
claim or action effected without its
12
written consent, which shall not be unreasonably withheld. The Company shall
not, without the prior written consent of each indemnified party that is not
released as described in this sentence, settle or compromise any action, or
permit a default or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, in respect of which indemnity may
be sought hereunder (whether or not any indemnified party is a party
thereto), unless such settlement, compromise, consent, or termination
includes an unconditional release of each indemnified party from all
liability in respect of such action. The Company agrees promptly to notify
the Eligible Holders of the commencement of any litigation or proceedings
against the Company or any of its officers or directors in connection with
the sale of any Securities or any preliminary prospectus, prospectus,
registration statement, or amendment or supplement thereto, or any
application relating to any sale of any Securities.
(b) The Holder agrees to indemnify and hold harmless the Company,
each director of the Company, each officer of the Company who shall have signed
any registration statement covering Securities held by the Holder, each other
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, and its or their respective counsel,
to the same extent as the foregoing indemnity from the Company to the Holder in
Section 11(a), but only with respect to statements or omissions, if any, made in
any registration statement, preliminary prospectus, or final prospectus (as from
time to time amended and supplemented), or any amendment or supplement thereto,
or in any application, in reliance upon and in conformity with written
information furnished to the Company with respect to the Holder by or on behalf
of the Holder expressly for inclusion in any such registration statement,
preliminary prospectus, or final prospectus, or any amendment or supplement
thereto, or in any application, as the case may be. If any action shall be
brought against the Company or any other person so indemnified based on any such
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, and in respect of which
indemnity may be sought against the Holder pursuant to this Section 11(b), the
Holder shall have the rights and duties given to the Company, and the Company
and each other person so indemnified shall have the rights and duties given to
the indemnified parties, by the provisions of Section 11(a).
(c) To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section 11(a) or
11(b) (subject to the limitations thereof) but it is found in a final judicial
determination, not subject to further appeal, that such indemnification may not
be enforced in such case, even though this Warrant expressly provides for
indemnification in such case, or (ii) any indemnified or indemnifying party
seeks contribution under the Act, the Exchange Act or otherwise, then the
Company (including for this purpose any contribution made by or on behalf of any
director of the Company, any officer of the Company who signed any such
registration statement, any controlling person of the Company, and its or their
respective counsel), as one entity, and the Eligible Holders of the Securities
included in such registration in the aggregate (including for this purpose any
contribution by or on behalf of an indemnified party), as a second entity, shall
contribute to the losses, liabilities, claims, damages, and expenses to which
any of them may be subject, on the basis of relevant equitable considerations
such as the relative fault of the Company and such Eligible Holders in
connection with the facts which resulted in such losses, liabilities, claims,
damages, and expenses. The relative fault, in the case of an untrue statement,
alleged untrue
13
statement, omission, or alleged omission, shall be determined by, among other
things, whether such statement, alleged statement, omission, or alleged
omission relates to information supplied by the Company or by such Eligible
Holders, and the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement, alleged statement,
omission, or alleged omission. The Company and the Holder agree that it
would be unjust and inequitable if the respective obligations of the Company
and the Eligible Holders for contribution were determined by pro rata or per
capita allocation of the aggregate losses, liabilities, claims, damages, and
expenses (even if the Holder and the other indemnified parties were treated
as one entity for such purpose) or by any other method of allocation that
does not reflect the equitable considerations referred to in this Section
11(c). In no case shall any Eligible Holder be responsible for a portion of
the contribution obligation imposed on all Eligible Holders in excess of its
pro rata share based on the number of shares of Common Stock owned (or which
would be owned upon exercise of all Securities) by it and included in such
registration as compared to the number of shares of Common Stock owned (or
which would be owned upon exercise of all Securities) by all Eligible Holders
and included in such registration. No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 11(c), each person, if any,
who controls any Eligible Holder within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act and each officer, director, partner,
employee, agent, and counsel of each such Eligible Holder or control person
shall have the same rights to contribution as such Eligible Holder or control
person and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, each officer
of the Company who shall have signed any such registration statement, each
director of the Company, and its or their respective counsel shall have the
same rights to contribution as the Company, subject in each case to the
provisions of this Section 11(c). Anything in this Section 11(c) to the
contrary notwithstanding, no party shall be liable for contribution with
respect to the settlement of any claim or action effected without its written
consent. This Section 11(c) is intended to supersede any right to
contribution under the Act, the Exchange Act or otherwise.
46. Unless registered pursuant to the provisions of Section 10 hereof, the
Securities shall be subject to a stop transfer order and the certificate or
certificates evidencing such Warrant Shares shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS."
47. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction, or mutilation of any Warrant (and upon surrender of any
Warrant if mutilated), and upon reimbursement of the Company's reasonable
incidental expenses, the Company shall execute and deliver to the Holder thereof
a new Warrant of like date, tenor, and denomination.
14
48. The Holder of any Warrant shall not have, solely on account of such
status, any rights of a stockholder of the Company, either at law or in equity,
or to any notice of meetings of stockholders or of any other proceedings of the
Company, except as provided in this Warrant.
49. Except as otherwise provided herein, all notices, requests and demands
to or upon a party hereto to be effective shall be in writing, shall be sent by
certified or registered mail, return receipt requested), or by telecopier or
delivered by hand or by a recognized overnight courier service and, unless
otherwise expressly provided herein, shall be deemed to have been validly
served, given or delivered when delivered against receipt or, in the case of
telecopy notice, when sent, or, in the case of telex, when the appropriate
answerback received, addressed as follows:
(a) If to Holder, at:
BIB Holdings (Bermuda) Ltd.
c/o Conyers, Dill & Pearman
2 Church Street
Hamilton HM 11
Bermuda
Phone: 441-295-1422
Telecopy: 441-292-4720
With a copy to:
Bahrain International Bank E.C.
Bahrain Commercial Complex
13th Floor, P.O. Box 5016
Manama, Bahrain
Attention: Sameer Al Aradi
Phone: 011-973-534-545
Telecopy: 011-973-535-141
and
Squadron, Ellenoff, Plesent & Sheinfeld LLP
551 Fifth Avenue
New York, New York 10176
Attention: David L. Kovacs, Esq.
Phone: (212) 661-6500
Telecopy: (212) 697-6686
15
(b) If to the Company, at:
Brothers Gourmet Coffees, Inc.
2255 Glades Road
Suite 100 E
Boca Raton, Florida 33431
Attention: Barry Bilmes, Vice President-Finance and
Administration
Phone: (561) 995-2600
Telecopy: (561) 241-6690
With a copy to:
Brownstein Hyatt Farber & Strickland, P.C.
410 Seventeenth Street
Twenty Second Floor
Denver, Colorado 80202-4437
Attention: John L. Ruppert, Esq.
Phone: (303) 534-6335
Telecopy: (303) 623-1956
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 15.
16
50. This Warrant shall be construed in accordance with the laws of the
State of New York applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
Dated: December , 1996
BROTHERS GOURMET COFFEES, INC.
By:
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[Seal]
17
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/10/97 |
| For Period End: | | 12/27/96 | | | | | | | 10-K |
| | 5/29/96 | | 5 |
| List all Filings |
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