Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2 Registration of Securities by a Small-Business 87 327K
Issuer
2: EX-1.1 Underwriting Agreement 28 132K
3: EX-1.2 Form of Lock-Up Agreement 2 16K
4: EX-1.3 Master Agreement Among Underwriters 10 58K
5: EX-1.4 Selected Dealers Agreement 7 30K
6: EX-3.1 Articles of Incorporation of Pci 3 19K
7: EX-3.2 By-Laws, as Amended of Pci 17 65K
8: EX-3.3 Certificate of Incorporation 36 151K
9: EX-4.1 Pages From Articles of Incorporation and Bylaws 8 35K
10: EX-4.2 Specimen Common Stock Certificate 1 9K
11: EX-4.3 Underwriter's Common Stock Purchase Warrant 11 42K
12: EX-4.4 Investment Banking Agreement 7 50K
13: EX-4.5 Letter of Intent Dated March 31, 1997 5 29K
14: EX-4.6 Form of Subscription to Acquire Warrants 20 76K
15: EX-9.1 Shareholders and Voting Agreement 27 76K
16: EX-10.1 Business Loan Agreement 8 54K
22: EX-10.12 Endorsement Agreement 05/01/97 6 31K
23: EX-10.13 Standard Sublease 53± 210K
24: EX-10.14 Agency Relationship Agreement 2 14K
25: EX-10.16 Business Consulting Agreement 2± 14K
26: EX-10.17 Employment Agreement With Steven A. Lambrecht 8 44K
27: EX-10.18 Employment Agreement With Greg P. Lambrecht 9 47K
28: EX-10.19 Employment Agreement With Colin A. Jones 9 46K
17: EX-10.2 Asset Purchase Agreement 12/31/96 21 60K
29: EX-10.21 Settlement & Full Release of Equity 34 143K
30: EX-10.22 Stock Sales Agreement 06/20/97 4 22K
18: EX-10.3 Asset Purchase Agreement 12/31/96 21 61K
19: EX-10.4 Promissory Note Between C. Jones and Pci 2 16K
20: EX-10.5 Promissory Note Between G. Lambrecht and Pci 2 16K
21: EX-10.6 Management Agreement 01/01/97 4 24K
31: EX-11.1 Computation of Earnings Per Share 1 9K
32: EX-16.1 Response Letter From Semple & Cooper, LLP 1 11K
33: EX-21.1 Subsidiary List 1 9K
34: EX-27.1 Financial Data Schedule 1 12K
EX-4.3 — Underwriter’s Common Stock Purchase Warrant
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PREMIUM CIGARS INTERNATIONAL, LTD.
UNDERWRITER'S COMMON STOCK PURCHASE WARRANT
PREMIUM CIGARS INTERNATIONAL, LTD. (the "Company"), an Arizona
corporation, hereby certifies that, for an aggregate consideration of
_______________ ($_____), W.B. McKee Securities, Inc. is entitled, subject to
the term set forth below, at any time and from time to time, but not earlier
than one year nor more than five years from __________, 1997 (the "Issue Date"),
to purchase from the Company _______________ (_____) shares of Common Stock, no
par value (each "Share" and together the "Shares") of the Company at the
purchase price per Share of $_____ (the purchase price per Share, as adjusted
from time to time pursuant to the provisions hereunder set forth, being referred
to herein as the "Exercise Price"). The Issue Date shall be the effective date
of the Registration Statement. The Shares issuable upon exercise of this
Underwriter's Common Stock Purchase Warrant (the "Warrant") have the same
respective terms as the shares of Common Stock offered by the Company's
Registration Statement on Form SB-2 (File No. 33-__________) dated __________,
1997 (the "Registration Statement"). This Warrant and all rights hereunder, to
the extent such rights shall not have been exercised, shall terminate and become
null and void to the extent the holder fails to exercise any portion of this
Warrant prior to 5:00 p.m., Mountain Standard Time, on __________, 2002. This
right is conditioned upon the sale by the Underwriter of _____ shares of Common
Stock as provided in the Registration Statement.
1. Registration.
a. The Company agrees for a period of four years commencing
one year after the Issue Date, that if during such four-year period, no current
registration statement by the Company is on file with the U.S. Securities and
Exchange Commission covering the securities underlying this Warrant upon receipt
of a written request from the holder of this Warrant or a majority of the
securities issued or issuable hereunder, it will prepare and file under the
Securities Act of 1933, as amended (the "Act"), one (but only one) registration
statement or Notification on Form 1-A, if then required, in order to permit a
public offering of the securities then underlying this Warrant, and will use its
best efforts to cause such registration statement or Notification to become
effective at the earliest possible date and to remain effective for a period not
to exceed 270 days. The Company will bear the cost of such registration
statement, including but not limited to counsel fees of the Company and
disbursements, accountants' fees and printing costs, if any, but excluding the
fees of counsel and others hired by the holder. The Company also agrees that it
will furnish to you opinions of counsel to the same effect as provided in
Section 6(b) of the Underwriting Agreement entered into by the parties hereto on
__________________, 1997 (the "Underwriting Agreement"), to the extent then
applicable, except that such opinions shall relate to such registration
statement and to the securities which shall be offered thereby. The Company and
you further agree that as to such registration statement, the provisions of
Section 6(d) of the Underwriting Agreement shall apply, except that the Company
shall be required to qualify the
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securities underlying this Warrant only in a reasonable number of jurisdictions
under the circumstances. Additionally, if at any time within five (5) years from
Issue Date, the Company or any successor intends to file a Notification on Form
1-A under the Act or a registration statement relating to a public offering of
its securities under the Act, it will offer upon 15 days' written notice to the
holder of this Warrant or the holders of the underlying securities (the
"Holders") to include the securities underlying this Warrant in such
registration statement at the expense of the Company, limited in the case of a
Regulation A Offering to the amount of the available exemption; provided that if
such public offering is on a firmly underwritten basis, such securities may be
excluded to the extent the managing underwriter thereof advises the Company and
the Holders in writing that inclusion of such securities would impair the
underwritten offering of securities for the account of the Company.
b. If at the time of any request to register the securities
underlying this Warrant, the Company is engaged or has fixed plans to engage
within thirty (30) days of the time of the request in a registered public
offering as to which the securities underlying this Warrant may be included or
is engaged in any other activity which, in the good faith determination of the
Company's Board of Directors, would be adversely affected by the requested
registration to the material detriment of the Company, then the Company may at
its option direct that such request be delayed for a period not in excess of
three (3) months from the effective date of such offering or the date of
commencement of such other material activity, as the case may be, such right to
delay a request to be exercised by the Company not more than once in any
two-year period.
2. Exercise of Warrant.
a. All or any part of this Warrant may be exercised by the
holder by surrendering it, with the form of subscription at the end hereof duly
executed by such holder, to the Company's transfer agent accompanied by payment
in full, in cash or by certified or official bank check, of the Exercise Price
payable in respect of all or part of this Warrant being exercised. If less than
the entire Warrant is exercised, the Company shall, upon such exercise, execute
and deliver to the holder thereof a new warrant in the same form as this Warrant
evidencing that Warrant to the extent not exercised.
b. The Company shall, at the time of any exercise of all or
part of this Warrant, upon the request of the holder hereof, acknowledge in
writing its continuing obligation to afford to such holder any rights to which
such holders shall continue to be entitled after such exercise in accordance
with the provisions of this Warrant, provided that if the holder of this Warrant
shall fail to make any such request, such failure shall not affect the
continuing obligations of the Company to afford to such holder any such rights.
3. Fractional Shares. No fractional securities or scrip representing
fractional securities shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called upon any such exercise hereof, the
Company shall pay to the holder an amount in
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cash equal to such fraction multiplied by the current market value of such
fractional securities, determined as follows:
a. If the security is listed on a national securities exchange
or admitted to unlisted trading privileges on such exchange, the current value
shall be the last reported sale price of the security on such exchange on the
last business day prior to the date of exercise of this Warrant, or if no such
sale is made on such day, the average closing bid and asked prices for such day
on such exchange; or
b. If the security is not listed or admitted to unlisted
trading privileges, the current value shall be the last reported sale price or
the mean of the last reported bid and asked prices reported by the National
Association of Securities Dealers Quotation System (or, if not so quoted on
NASDAQ, by the National Quotation Bureau, Inc.) on the last business day prior
to the date of the exercise of this Warrant; or
c. If the security is not so listed or admitted to unlisted
trading privileges and prices are not reported on NASDAQ, the current value
shall be an amount, not less than the book value, determined in such reasonable
manner as may be prescribed by the Board of Directors of the Company.
4. Exchange, Assignment, or Loss of Warrant. This Warrant is
exchangeable, without expense, at the option of the holder, upon presentation
and surrender hereof to the transfer agent for other Warrants of different
denominations entitling the holder thereof to purchase in the aggregate the same
number of securities purchased hereunder. This Warrant is restricted from sale,
transfer, assignment, or hypothecation except to officers of W.B. McKee
Securities, Inc. and by operation of law. Any such assignment shall be made by
surrender of this Warrant to ____________ (the "Transfer Agent") with the Form
of Assignment annexed hereto duly executed and funds sufficient to pay any
transfer tax; whereupon the Transfer Agent shall, without charge, cause to be
executed and delivered a new Warrant in the name of the assignee named in such
instrument or assignment and this Warrant shall promptly be canceled. This
Warrant may be divided or combined with other Warrants that carry the same
rights upon presentation hereof to the office of the Transfer Agent together
with a written notice specifying the names and denomination in which new
Warrants are to be issued and signed by the holder hereof. The term "Warrant" as
used herein includes any Warrants issued in substitution for or replacement of
this Warrant, or into which this Warrant may be divided or exchanged. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction of reasonably satisfactory indemnification including a surety bond,
and upon surrender and cancellation of this Warrant, if mutilated, the Transfer
Agent will cause to be executed and delivered a new Warrant of like tenor and
date. Any such new Warrant executed and delivered shall constitute an additional
contractual obligation on the part of the Company, whether or not this Warrant
so lost, stolen, destroyed, or mutilated shall be at any time enforceable by
anyone.
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5. Rights of the Holder. The holder of this Warrant shall not, by
virtue hereof, be entitled to any rights of a stockholder in the Company, either
at law or equity, and the rights of the holder are limited to those expressed in
this Warrant.
6. Adjustments.
a. The number of securities purchasable on exercise of this
Warrant and the purchase prices therefor shall be subject to adjustment from
time to time in the event that the Company shall: (1) pay a dividend in, or make
a distribution of, shares of Common Stock, (2) subdivide its outstanding shares
of Common Stock into a greater number of shares, (3) combine its outstanding
shares of Common Stock into a smaller number of shares, or (4) spin-off a
subsidiary by distributing, as a dividend or otherwise, shares of the subsidiary
to its stockholders. In any such case, the total number of shares and the number
of shares or other units of such total securities purchasable on exercise of
this Warrant immediately prior thereto shall be adjusted so that the holder
shall be entitled to receive, at the same aggregate purchase price, the number
of shares of Common Stock and the number of shares or other units of such other
securities that the holder would have owned or would have been entitled to
receive immediately following the occurrence of any of the events described
above had this Warrant been exercised in full immediately prior to the
occurrence (or applicable record date) of such event. An adjustment made
pursuant to this Section 6(a) shall, in the case of a stock dividend or
distribution, be made as of the record date and, in the case of a subdivision or
combination, be made as of the effective date thereof. If, as a result of any
adjustment pursuant to this Section 6(a), the holder shall become entitled to
receive shares of two or more classes of series of securities of the Company,
the Board of Directors of the Company shall equitably determine the allocation
of the adjusted purchase price between or among shares or other units of such
classes or series and shall notify the holder of such allocation.
b. In the event of any reorganization or recapitalization of
the Company or in the event the Company consolidates with or merges into another
entity or transfers all or substantially all of its assets to another entity,
then and in each such event, the holder, on exercise of this Warrant as provided
herein, at any time after the consummation of such reorganization,
recapitalization, consolidation, merger or transfer, shall be entitled, and the
documents executed to effectuate such event shall so provide, to receive the
stock or other securities or property to which the holder would have been
entitled upon such consummation if the holder had exercised this Warrant
immediately prior thereto. In such case, the terms of this Warrant shall survive
the consummation of any such reorganization, recapitalization, consolidation,
merger or transfer and shall be applicable to the shares of stock or other
securities or property receivable on the exercise of this Warrant after such
consummation.
c. Whenever a reference is made in this Section 6 to the issue
or sale of shares of Common Stock, the term "Common Stock" shall mean the Common
Stock of the Company of the class authorized as of the date hereof and any other
class stock ranking on a parity with such Common Stock.
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d. Whenever the number of securities purchasable upon exercise
of this Warrant or the purchase prices thereof shall be adjusted as required
herein, the Company shall forthwith file in the custody of its secretary at its
principal office, and with its Transfer Agent, an officer's certificate showing
the adjusted number or price determined as herein provided and setting forth in
detail the facts requiring such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the holder and
the Company shall, forthwith after such adjustment, deliver a copy of such
certificate to the holder.
e. The Company will not, by amendment of its certificate of
incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issuance or sale of securities or
any other voluntary action avoid or seek to avoid the performance of any of the
terms of this Warrant, but will at all times in good faith take all necessary
action to carry out the intent of all such terms. Without limiting the
generality of the foregoing, the Company (1) will not increase the par value, of
any securities receivable on exercise of this Warrant above the amount payable
therefor on such exercise, (2) will take all action as may be necessary or
appropriate so that the Company may validly and legally issue fully paid and
nonassessable shares (or other securities or property deliverable hereunder)
upon the exercise of this Warrant, and (3) will not transfer all or
substantially all of its assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall be bound by all the terms of this
Warrant. If any event occurs as to which the other provisions of this Warrant
are not strictly applicable or if strictly applicable would not fairly protect
the purchase rights of this Warrant in accordance with the essential intent and
principles of such provisions, then the Board of Directors shall make an
adjustment in the application of such provisions, in accordance with such
essential intent and principles, in order to protect such purchase rights. This
Warrant shall bind the successors and assigns of the Company.
7. Notices of Record Dates, Etc.
a. If the Company shall fix a record date of the holders of
Common Stock (or other securities at the time deliverable on exercise of this
Warrant) for the purpose of entitling or enabling them to receive any dividends
or other distribution, or to receive any right to subscribe for or purchase any
shares of any class of any securities, or to receive any other right
contemplated by Section 6 or otherwise; or
b. In the event of any reorganization or recapitalization of
the Company, any reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another corporation or any
transfer of all or substantially all of the assets of the Company to another
entity; or
c. In the event of the voluntary or involuntary dissolution,
liquidation or winding up of the Company, then, in any such event, the Company
shall mail or cause to be
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mailed to the holder a notice specifying, as the case may be, (1) the date on
which a record is to be taken for the purpose of such dividend, distribution or
right and stating the amount and character of such dividend, distribution or
right, or (2) the date on which a record is to be taken for the purpose of
voting on or approving such reorganization, recapitalization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding up and
the date on which such event is to take place and the time, if any is to be
fixed, as of which the holder of record of Common Stock (or any other securities
at the time deliverable on exercise of this Warrant) shall be entitled to
exchange its shares of Common Stock (or such other securities) for securities or
other property deliverable on such reorganization, recapitalization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up. Such notice shall be mailed at the same date as the Company shall
inform its stockholders.
8. Reservation of Shares. The Company shall at all times reserve, for
the purpose of issuance on exercise of this Warrant such number of shares of
Common Stock or such class or classes of capital stock or other securities as
shall from time to time be sufficient to comply with this Warrant, the Warrants
and the Company shall take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized and unissued shares of Common
Stock or such other class or classes of capital stock or other securities to
such number as shall be sufficient for that purpose.
9. Approvals. The Company shall from time to time use its best efforts
to obtain and continue in effect any and all permits, consents, registrations,
qualifications and approvals of governmental agencies and authorities and to
make all filings under applicable securities laws that may be or become
necessary in connection with the issuance, sale, transfer and delivery of this
Warrant and the issuance of securities on any exercise hereof, and if any such
permits, consent, qualifications, registrations, approvals or filings are not
obtained or continued in effect as required, the Company shall immediately
notify the holder thereof. Nothing contained in this Section 9 shall in any way
expand, alter or limit the rights of the holder set forth in Section 1 hereof.
10. Survival. All agreements, covenants, representations and warranties
herein shall survive the execution and delivery of this Warrant and any
investigation at any time made by or on behalf of any parties hereto and the
exercise, sale and purchase of this Warrant and any other securities or property
issuable on exercise hereof.
11. Remedies. The Company agrees that the remedies at law of the
holder, in the event of any default or threatened default by the Company in the
performance or compliance with any of the terms of this Warrant, may not be
adequate and such terms may, in addition to and not in lieu of any other remedy,
be specifically enforced by a decree of specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
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12. Notices. All demands, notices, consents and other communications to
be given hereunder shall be in writing and shall be deemed duly given when
delivered personally or five days after being mailed by first class mail,
postage prepaid, properly addressed, if to the Company at
_________________________________________________________________, or if to the
holder at 3003 North Central Avenue, Suite 100, Phoenix, Arizona 85012. The
Company and each holder may change such address at any time or times by notice
hereunder to the other.
13. Amendments; Waivers; Terminations; Governing Law; Headings. 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 governed by and construed and interpreted in accordance with the laws of the
State of Arizona. The headings in this Warrant are for convenience of reference
only and are not part of this Warrant.
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DATED: ________________
PREMIUM CIGARS INTERNATIONAL, LTD.
an Arizona corporation
By
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Steven J. Lambrecht,
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ATTEST:
By
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, Secretary
-------------------------------
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FORM OF ASSIGNMENT
(To be executed upon transfer of Warrant)
FOR VALUE RECEIVED, ____________________________ hereby sells, assigns
and transfers to _____________________________________________________________
the within Underwriter's Common Stock Purchase Warrant, together with all
rights, title and interest therein, and does hereby irrevocably constitute and
appoint attorney to transfer such Underwriter's Common Stock Purchase Warrant on
the warrant register of Premium Cigars International, Ltd., with full power of
substitution.
Signature:
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DATED: , 19
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Signature Guaranteed:
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SUBSCRIPTION
(To be completed and signed only upon an exercise
of the Underwriter's Common Stock Purchase Warrant in whole or in part)
TO:
--------------------------------------------------------
as Transfer Agent for Premium Cigars International, Ltd.
__________________________
The undersigned, the Holder of the attached Underwriter's Common Stock
Purchase Warrant, hereby irrevocably elects to exercise the purchase right
represented by the Underwriter's Common Stock Purchase Warrant for, and to
purchase thereunder, ____ Shares (as such terms are defined in the Underwriter's
Common Stock purchase Warrant dated , 1997, from Premium Cigars International,
Ltd.) or other securities or property, and herewith makes payment of $ therefor
in cash or by certified or official bank check. The undersigned hereby requests
that the Certificate(s) for such shares, or other securities or property, be
issued in the name(s) and delivered to the address(es) as follows:
Name:
-----------------------------------------
Address:
-----------------------------------------
Deliver to:
-----------------------------------------
Address:
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If the foregoing Subscription evidences an exercise of the
Underwriter's Common Stock Purchase Warrant to purchase fewer than all of the
Shares (or other securities or property) to which the undersigned is entitled
under such Underwriter's Common Stock Purchase Warrant, please issue a new
Underwriter's Common Stock Purchase Warrant, of like tenor, for the remaining
Shares (or other securities or property) in the name(s), and deliver the same to
the address(es), as follows:
Name:
-----------------------------------------
Address:
-----------------------------------------
DATED: , 19 .
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--------------------------------
(Name of Holder)
--------------------------------
(Signature of Holder or
Authorized Signatory)
--------------------------------
(Social Security or Taxpayer
Identification Number of Holder)
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