EXHIBIT 4.1
THE REGISTERED HOLDER OF THIS WARRANT, BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN
THIS WARRANT EXCEPT AS HEREIN PROVIDED.
WARRANT
For the Purchase of
[250,000] [125,000] [125,000] Shares of Common Stock
of
BIG CITY BAGELS, INC.
1. Warrant.
THIS CERTIFIES THAT, in consideration of $10 and other good and
valuable consideration, duly paid by or on behalf of Xxxxxx, Xxxxxx & Xxxxxxxxx
Capital Corp. ("Holder"), as registered owner of this Warrant, to Big City
Bagels, Inc. ("Company"), Xxxxxx is entitled, at any time or from time to time
on and after [1st tranche will be exercisable immediately after the Closing Date
so the instrument representing the 1st tranche will simply omit the bracketed
text in this sentence] the [six-month anniversary of the] [first anniversary of
the] date ("Closing Date ") on which a closing ("Closing") shall occur of the
transactions contemplated by the Agreement and Plan of Reorganization and
Merger, dated as of May 21, 1999, among the Company, BCB Acquisition
Corp. I, and BCB Acquisition Corp. II, and Intelligent Computer Solutions,
Inc., VillageNet, Inc. and the shareholders set forth on Appendix A thereto
("Merger Agreement") (hereinafter the date upon which this Warrant shall first
become exercisable is referred to as the "Commencement Date"), and at or before
5:00 p.m., Eastern Time on the fifth anniversary of the Closing Date
("Expiration Date"), but not thereafter, to subscribe for, purchase and receive,
in whole or in part, up to [two hundred fifty thousand (250,000)] [one hundred
twenty-five thousand (125,000)] [one hundred twenty-five thousand (125,000)]
shares of Common Stock of the Company, $.001 par value per share ("Warrant
Shares"). If the Expiration Date is a day on which banking institutions are
authorized by law to close, then this Warrant may be exercised on the next
succeeding day which is not such a day in accordance with the terms herein.
During the period ending on the Expiration Date, the Company agrees not to take
any action that would terminate the Warrant. This Warrant is initially
exercisable at [$0.48 ] [$.075] [$1.00] per Warrant Share; provided, however,
that upon the occurrence of any of the events specified in Section 6 hereof, the
rights granted by this Warrant, including the exercise price and the number of
Warrant Shares to be received upon such exercise, shall be adjusted as therein
specified. The term "Exercise Price" shall mean the initial exercise price or
the adjusted exercise price, depending on the context, of a Warrant Share.
Notwithstanding anything to the contrary contained herein, this Warrant
and all rights provided to the Holder hereunder shall become effective if and
only if the Closing shall have occurred on or before November 21, 1999, unless
such date shall have been postponed to a later date by the parties to the Merger
Agreement, in which case such later date shall apply.
This Warrant is one of a series of similar warrants issued by the
Company to the Holder in connection with the transactions contemplated by the
Merger Agreement, which warrants, in the aggregate, entitle the Holder to
purchase up to 500,000 shares of Common Stock, $.001 par value per share, of the
Company with an exercise price of $0.48 with respect to 250,000 shares, $0.75
with respect to 125,000 shares, and $1.00 with respect to 125,000 shares. These
warrants, collectively, are referred to herein as the "PHD Warrants."
2. Exercise.
2.1 Exercise Form. In order to exercise this Warrant, the exercise form
attached hereto must be duly executed and completed and delivered to the
Company, together with this Warrant and payment of the Exercise Price for the
Warrant Shares being purchased. If the subscription rights represented hereby
shall not be exercised at or before 5:00 p.m., Eastern time, on the Expiration
Date, this Warrant shall become and be void without further force or effect, and
all rights represented hereby shall cease and expire.
2.2 Legend. Each certificate for Warrant Shares purchased under this
Warrant shall bear a legend as follows, unless such Warrant Shares have been
registered under the Securities Act of 1933, as amended ("Act"):
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended ("Act") or applicable
state law. The shares may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement
under the Act, or pursuant to an exemption from registration under the
Act and applicable state law."
2.3 Conversion Right.
2.3.1 Determination of Amount. In lieu of the payment of the
Exercise Price in the manner provided by Section 2.1, the Holder shall have the
right (but not the obligation) to convert this Warrant, in whole or in part,
into Warrant Shares ("Conversion Right"), as follows: upon exercise of the
Conversion Right, the Company shall deliver to the Holder (without payment by
the Holder of any of the Exercise Price) that number of Warrant Shares equal to
the quotient obtained by dividing (x) the "Value" (as defined below) of the
portion of the Warrant being converted at the time the Conversion Right is
exercised by (y) the Market Price. The "Value" of the portion of the Warrant
being converted shall equal the remainder derived from subtracting (a) the
Exercise Price multiplied by the number of Warrant Shares underlying the portion
of the Warrant being converted from (b) the Market Price of the Common Stock
multiplied by the number of Warrant Shares underlying the portion of the Warrant
being converted. As used herein, the term "Market Price" at any date shall be
deemed to be the last reported sale price of the Common Stock on the trading day
immediately preceding such date, or, in case no such reported sale takes place
on the immediately preceding trading day, the average of the last reported sale
prices for the immediately preceding three trading days, in either case as
officially reported by the principal securities exchange 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 or if any such exchange
on which the Common Stock is listed is not its principal trading market, the
last reported sale price as furnished by the National Association of Securities
Dealers, Inc. ("NASD") through the Nasdaq National Market or SmallCap Market,
or, if applicable, the OTC Bulletin Board, or if the Common Stock is not listed
or admitted to trading on any of the foregoing markets, or similar organization,
as determined in good faith by resolution of the Board of Directors of the
Company, based on the best information available to it.
2.3.2 Exercise of Conversion Right. The Conversion Right may
be exercised by the Holder on any business day on or after the Commencement Date
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and not later than the Expiration Date by delivering the Warrant with a duly
executed exercise form attached hereto with the conversion section completed.
3. Transfer.
3.1 General Restrictions. The registered Holder of this Warrant, by its
acceptance hereof, agrees that it will not sell, transfer or assign or
hypothecate this Warrant to anyone except upon compliance with, or pursuant to
exemptions from, applicable securities laws. In order to make any permitted
assignment, the Holder must deliver to the Company the assignment form attached
hereto duly executed and completed, together with this Warrant and payment of
all transfer taxes, if any, payable in connection therewith. The Company shall
immediately transfer this Warrant on the books of the Company and shall execute
and deliver a new Warrant or Warrants of like tenor to the appropriate
assignee(s) expressly evidencing the right to purchase the aggregate number of
Warrant Shares purchasable hereunder or such portion of such number as shall be
contemplated by any such assignment.
3.2 Restrictions Imposed by the Securities Act. This Warrant and the
Warrant Shares underlying this Warrant shall not be transferred unless and until
(i) the Company has received the opinion of counsel for the Holder that such
securities may be sold pursuant to an exemption from registration under the Act,
and applicable state law, the availability of which is established to the
reasonable satisfaction of the Company, or (ii) a registration statement
relating to such Warrant Shares has been filed by the Company and declared
effective by the Securities and Exchange Commission and compliance with
applicable state law.
4. New Warrants to be Issued.
4.1 Partial Exercise or Transfer. Subject to the restrictions in
Section 3 hereof, this Warrant may be exercised or assigned in whole or in part.
In the event of the exercise or assignment hereof in part only, upon surrender
of this Warrant for cancellation, together with the duly executed exercise or
assignment form and funds (or conversion equivalent) sufficient to pay any
Exercise Price and/or transfer tax, the Company shall cause to be delivered to
the Holder without charge a new Warrant of like tenor to this Warrant in the
name of the Holder evidencing the right of the Holder to purchase the aggregate
number of Warrant Shares hereunder as to which this Warrant has not been
exercised or assigned.
4.2 Lost Certificate. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
and of reasonably satisfactory indemnification, the Company shall execute and
deliver a new Warrant of like tenor and date. Any such new Warrant executed and
delivered as a result of such loss, theft, mutilation or destruction shall
constitute a substitute contractual obligation on the part of the Company.
5. Registration Rights.
5.1 Demand Registration.
5.1.1 Grant of Right. The Company, upon written demand
("Initial Demand Notice") of the Holder(s) of at least a majority of the PHD
Warrants and/or the underlying shares of Common Stock considered together agrees
to register on one occasion the resale of all or any portion of this Warrant and
the Warrant Shares requested by such Xxxxxx(s) in the Initial Demand Notice (the
"Registrable Securities"). On such occasion, the Company will file a
Registration Statement covering the Registrable Securities within sixty days
after receipt of the Initial Demand Notice and use its best efforts to have such
registration
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statement declared effective promptly thereafter. Should the filing of this
registration or the effectiveness thereof be delayed by the Company, the
exercisability of this Warrant shall be extended for a period of time equal to
such delay. Moreover, if the Company fails to comply with the provisions of this
Section 5.1.1, the Company shall, in addition to any other equitable or other
relief available to the Holder, be liable for any and all incidental, special
and consequential damages sustained by the Holder. The demand for registration
may be made at any time after the nine month anniversary of the Closing Date and
thereafter until the earlier of (i) the seventh anniversary of the Closing Date
or (ii) the date upon which all of the Registrable Securities are eligible for
resale pursuant to Rule 144(k) promulgated under the Act ("Rule 144(k)").
5.1.2 Terms. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, but the Holder(s) shall pay
any and all underwriting commissions and the expenses of any legal counsel
selected by the Holder(s) to represent it in connection with the sale of the
Registrable Securities. The Company agrees to use its best efforts to cause the
filing required herein to become effective promptly and to qualify or register
the Registrable Securities in such States as are reasonably requested by the
Holder(s); provided, however, that in no event shall the Company be required to
register the Registrable Securities in a State in which such registration would
cause (i) the Company to be obligated to register or license to do business in
such State, or (ii) the principal shareholders of the Company to be obligated to
escrow their shares of capital stock of the Company. The Company shall cause any
registration statement filed pursuant to the demand rights granted under Section
5.1.1 to remain effective and the related prospectus current until all the
Registrable Securities are sold or until all such securities may be sold by the
holders thereof under Rule 144(k). During any consecutive 365-day period, the
Company may suspend the availability of the Registration Statement for no more
than two periods of up to 20 consecutive days and for no more than an aggregate
of 40 days during any 365-day period, if the Company's Board of Directors
determines, based upon the opinion of legal counsel, that there is a valid
purpose for such suspension.
5.2 "Piggy-Back" Registration.
5.2.1 Grant of Right. In addition to the demand right of
registration, the Holder(s) of the PHD Warrants shall have the right, at any
time until the earlier of (i) the seventh anniversary of the Closing Date or
(ii) the date upon which all of the Registrable Securities are eligible for
resale pursuant to Rule 144(k), to include the Registrable Securities as part of
any other registration of securities filed by the Company (other than in
connection with a transaction contemplated by Rule 145(a) promulgated under the
Act or pursuant to Form S-8 or any equivalent form) provided, however, that if,
in the written opinion of the Company's managing underwriter or underwriters, if
any, for such offering, the inclusion of the Registrable Securities, when added
to the securities being registered by the Company or the selling stockholder(s),
will exceed the maximum amount of the Company's securities which can be marketed
(i) at a price reasonably related to their then current market value, or (ii)
without materially and adversely affecting the entire offering, the Company
shall nevertheless register all or any portion of the Registrable Securities
required to be so registered but such Registrable Securities shall not be sold
by the Holder(s) until 180 days after the registration statement for such
offering has become effective and provided further that, if any securities are
registered for sale on behalf of other stockholders in such offering and such
stockholders have not agreed to defer such sale until the expiration of such 180
day period, the number of securities to be sold by all shareholders in such
public offering during such 180 day period shall be apportioned pro rata among
all such selling stockholders, including the Holder(s), according to the total
amount of securities of the Company owned by said selling shareholders,
including all holders of the Registrable Securities.
5.2.2 Terms. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, but the Holder(s) shall pay
any and all underwriting commissions and the expenses
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of any legal counsel selected by the Holder(s) to represent them in connection
with the sale of the Registrable Securities. In the event of such a proposed
registration, the Company shall furnish the Holder(s) with not less than thirty
days written notice prior to the proposed date of filing of such registration
statement. Such notice to the Holder(s) shall continue to be given for each
registration statement filed by the Company until such time as all of the
Registrable Securities have been sold by the Holder(s) or are eligible for
resale pursuant to Rule 144(k). The Holder(s) shall exercise the "piggy-back"
rights provided for herein by giving written notice, within twenty days of the
receipt of the Company's notice of its intention to file a registration
statement. The Company shall cause any registration statement filed pursuant to
the demand rights granted under Section 5.1.1 to remain effective and the
related prospectus current until all the Registrable Securities are sold or
until all such securities may be sold by the holders thereof under Rule 144(k).
During any consecutive 365-day period, the Company may suspend the availability
of the Registration Statement for no more than two periods of up to 20
consecutive days and for no more than an aggregate of 40 days during any 365-day
period, if the Company's Board of Directors determines, based upon the opinion
of legal counsel, that there is a valid purpose for such suspension.
5.3 General Terms.
5.3.1 Indemnification.
(1) The Company shall indemnify the Holder(s) of the
Registrable Securities to be sold pursuant to any registration statement
hereunder and any underwriter or person deemed to be an underwriter under the
Act and each person, if any, who controls such Holders or underwriters or
persons deemed to be underwriters within the meaning of Section 15 of the Act or
Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), against all loss, claim, damage, expense or liability (including all
reasonable attorneys' fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any
of them may become subject under the Act, the Exchange Act or otherwise, arising
from such registration statement. The Holder(s) of the Registrable Securities to
be sold pursuant to such registration statement, and their successors and
assigns, shall severally, and not jointly, indemnify the Company, against all
loss, claim, damage, expense or liability (including all reasonable attorneys'
fees and other expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which they may become subject under
the Act, the Exchange Act or otherwise, arising from information furnished by or
on behalf of such Holders, in writing, for specific inclusion in such
registration statement.
(2) If any action is brought against a party hereto,
("Indemnified Party") in respect of which indemnity may be sought against the
other party ("Indemnifying Party"), such Indemnified Party shall promptly notify
Indemnifying Party in writing of the institution of such action and Indemnifying
Party shall assume the defense of such action, including the employment and fees
of counsel reasonably satisfactory to the Indemnified Party. Such Indemnified
Party 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 unless (i) the employment of such counsel shall have been
authorized in writing by Indemnifying Party in connection with the defense of
such action, or (ii) Indemnifying Party shall not have employed counsel to
defend such action, or (iii) such Indemnified Party shall have been advised by
counsel that there may be one or more legal defenses available to it which may
result in a conflict between the Indemnified Party and Indemnifying Party (in
which case Indemnifying Party shall not have the right to direct the defense of
such action on behalf of the Indemnified Party), in any of which events, the
reasonable fees and expenses of not more than one additional firm of attorneys
designated in writing by the Indemnified Party shall be borne by Indemnifying
Party. Notwithstanding anything to the contrary contained herein, if
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Indemnified Party shall assume the defense of such action as provided above,
Indemnifying Party shall not be liable for any settlement of any such action
effected without its written consent.
(3) If the indemnification or reimbursement provided
for hereunder is finally judicially determined by a court of competent
jurisdiction to be unavailable to an Indemnified Party (other than as a
consequence of a final judicial determination of willful misconduct, bad faith
or gross negligence of such Indemnified Party), then Indemnifying Party agrees,
in lieu of indemnifying such Indemnified Party, to contribute to the amount paid
or payable by such Indemnified Party (i) in such proportion as is appropriate to
reflect the relative benefits received, or sought to be received, by
Indemnifying Party on the one hand and by such Indemnified Party on the other or
(ii) if (but only if) the allocation provided in clause (i) of this sentence is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in such clause (i) but also the
relative fault of Indemnifying Party and of such Indemnified Party; provided,
however, that in no event shall the aggregate amount contributed by a Holder
exceed the profit, if any, earned by such Xxxxxx as a result of the exercise by
him of the Warrants and the sale by him of the underlying shares of Common
Stock.
(4) The rights accorded to Indemnified Parties
hereunder shall be in addition to any rights that any Indemnified Party may have
at common law, by separate agreement or otherwise.
5.3.2 Exercise of Warrants. Nothing contained in this Warrant
shall be construed as requiring the Holder to exercise the Warrant prior to or
after the initial filing of any registration statement or the effectiveness
thereof.
5.3.3 Documents to be Delivered by Xxxxxx(s). The Holder shall
furnish to the Company, as requested, a completed and executed questionnaire
provided by the Company requesting information customarily sought of selling
securityholders.
6. Adjustments
6.1 Adjustments to Exercise Price and Number of Securities. The
Exercise Price and the number of Warrant Shares shall be subject to adjustment
from time to time as hereinafter set forth:
6.1.1 Stock Dividends - Recapitalization, Reclassification,
Split-Ups. If, after the date hereof, and subject to the provisions of Section
6.2 below, the number of outstanding shares of Common Stock is increased by a
stock dividend on the Common Stock payable in shares of Common Stock or by a
split-up, recapitalization or reclassification of shares of Common Stock or
other similar event, then, on the effective date thereof, the number of Warrant
Shares issuable on exercise of this Warrant shall be increased in proportion to
such increase in outstanding shares.
6.1.2 Aggregation of Shares. If after the date hereof, and
subject to the provisions of Section 6.3, the number of outstanding shares of
Common Stock is decreased by a consolidation, combination or reclassification of
shares of Common Stock or other similar event, then, upon the effective date
thereof, the number of Warrant Shares issuable on exercise of this Warrant shall
be decreased in proportion to such decrease in outstanding shares.
6.1.3 Adjustments in Exercise Price. Whenever the number of
Warrant Shares purchasable upon the exercise of this Warrant is adjusted, as
provided in this Section 6.1, the Exercise Price
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shall be adjusted (to the nearest cent) by multiplying such Exercise Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of Warrant Shares purchasable upon the exercise of this
Warrant immediately prior to such adjustment, and (y) the denominator of which
shall be the number of Warrant Shares so purchasable immediately thereafter.
6.1.4 Replacement of Securities upon Reorganization, etc. In
case of any reclassification or reorganization of the outstanding shares of
Common Stock other than a change covered by Section 6.1.1 or 6.1.2 hereof or
which solely affects the par value of such shares of Common Stock, or in the
case of any merger or consolidation of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in any reclassification or
reorganization of the outstanding shares of Common Stock), or in the case of any
sale or conveyance to another corporation or entity of the property of the
Company as an entirety or substantially as an entirety in connection with which
the Company is dissolved, the Holder of this Warrant shall have the right
thereafter (until the expiration of the right of exercise of this Warrant) to
receive upon the exercise hereof, for the same aggregate Exercise Price payable
hereunder immediately prior to such event, the kind and amount of shares of
stock or other securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution
following any such sale or other transfer, by a holder of the number of Warrant
Shares obtainable upon exercise of this Warrant immediately prior to such event;
and if any reclassification also results in a change in shares of Common Stock
covered by Sections 6.1.1 or 6.1.2, then such adjustment shall be made pursuant
to Sections 6.1.1, 6.1.2, 6.1.3 and this Section 6.1.4. The provisions of this
Section 6.1.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
6.1.5 Changes in Form of Warrant. This form of Warrant need
not be changed because of any change pursuant to this Section, and Warrants
issued after such change may state the same Exercise Price and the same number
of Warrant Shares as are stated in the Warrants initially issued pursuant to
this Agreement. The acceptance by any Holder of the issuance of new Warrants
reflecting a required or permissive change shall not be deemed to waive any
rights to a prior adjustment or the computation thereof.
6.2 Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of Warrant Shares upon the
exercise of this Warrant, nor shall it be required to issue scrip or pay cash in
lieu of any fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number of Warrant Shares or other securities, properties or
rights.
7. Reservation and Listing. The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon exercise of this Warrant, such number of Warrant Shares or
other securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of this Warrant
and payment of the Exercise Price therefor, all Warrant Shares and other
securities issuable upon such exercise shall be duly and validly issued, fully
paid and non-assessable and not subject to preemptive rights of any stockholder.
As long as the Warrants shall be outstanding, the Company shall use its best
efforts to cause all Warrant Shares issuable upon exercise of this Warrant to be
listed (subject to official notice of issuance) on all securities exchanges (or,
if applicable on Nasdaq) on which the Common Stock is then listed and/or quoted.
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8. Certain Notice Requirements.
8.1 Holder's Right to Receive Notice. Nothing herein shall be construed
as conferring upon the Holder the right to vote or consent or to receive notice
as a shareholder for the election of directors or any other matter, or as having
any rights whatsoever as a stockholder of the Company. If, however, at any time
prior to the expiration of this Warrant and its exercise, any of the events
described in Section 8.2 shall occur, then, in one or more of said events, the
Company shall give written notice of such event at least fifteen days prior to
the date fixed as a record date or the date of closing the transfer books for
the determination of the stockholders entitled to such dividend, distribution,
conversion or exchange of securities or subscription rights, or entitled to vote
on such proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of the closing of the transfer books, as
the case may be.
8.2 Events Requiring Notice. The Company shall be required to give the
notice described in this Section 8 upon one or more of the following events: (i)
if the Company shall take a record of the holders of its shares of Common Stock
for the purpose of entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution payable otherwise
than out of retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company, or (ii) the Company shall
offer to all the holders of its Common Stock any additional shares of capital
stock of the Company or securities convertible into or exchangeable for shares
of capital stock of the Company, or any option, right or warrant to subscribe
therefor, or (iii) a merger or reorganization in which the Company is not the
surviving party, or (iv) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall, promptly
after an event requiring a change in the Exercise Price pursuant to Section 6
hereof, send notice to the Holder of such event and change ("Price Notice"). The
Price Notice shall describe the event causing the change and the method of
calculating same and shall be certified as being true and accurate by the
Company's President and Chief Financial Officer.
8.4 Transmittal of Notices. All notices, requests, consents and other
communications under this Warrant shall be in writing and shall be deemed to
have been duly made on the date of delivery if delivered personally or sent by
overnight courier, with acknowledgment of receipt by the party to which notice
is given, or on the fifth day after mailing if mailed to the party to whom
notice is to be given, by registered or certified mail, return receipt
requested, postage prepaid and properly addressed as follows: (i) if to the
registered Holder of this Warrant, to the address of such Holder as shown on the
books of the Company, or (ii) if to the Company, to its principal executive
office.
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9. Miscellaneous.
9.1 Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Warrant.
9.2 Entire Agreement. This Warrant (together with any other agreements
and documents being delivered pursuant to or in connection with this Warrant)
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter hereof.
9.3 Binding Effect. This Warrant shall inure solely to the benefit of
and shall be binding upon, the Holder and the Company and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Warrant or any provisions herein contained.
9.4 Governing Law; Submission to Jurisdiction. This Warrant shall be
governed by and construed and enforced in accordance with the law of the State
of New York, without giving effect to conflict of laws. The Company hereby
agrees that any action, proceeding or claim against it arising out of, or
relating in any way to this Warrant shall be brought and enforced in the courts
of the State of New York or of the United States of America for the Southern
District of New York, and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. The Company hereby waives any objection to such
exclusive jurisdiction and that such courts represent an inconvenient forum. Any
process or summons to be served upon the Company may be served by transmitting a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 8 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the
Company in any action, proceeding or claim. The Company agrees that the
prevailing party(ies) in any such action shall be entitled to recover from the
other party(ies) all of its reasonable attorneys' fees and expenses relating to
such action or proceeding and/or incurred in connection with the preparation
therefor.
9.5 Waiver, Etc. The failure of the Company or the Holder to at any
time enforce any of the provisions of this Warrant shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Warrant or any provision hereof or the right of the Company or
any Holder to thereafter enforce each and every provision of this Warrant. No
waiver of any breach, non-compliance or non-fulfillment of any of the provisions
of this Warrant shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such
waiver is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any other or
subsequent breach, non-compliance or non-fulfillment.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer as of the 21st day of May, 1999.
BIG CITY BAGELS, INC.
/s/ Xxxx Xxxxxxx
By:_______________________________
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Form to be used to exercise Warrant:
Big City Bagels, Inc.
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Date: _____________________, 19___
The undersigned hereby elects irrevocably to exercise the
within Warrant and to purchase ________ shares of Common Stock of Big City
Bagels, Inc. and hereby makes payment of $____________ (at the rate of
$_________ per share of Common Stock) in payment of the Exercise Price pursuant
thereto. Please issue the Common Stock as to which this Warrant is exercised in
accordance with the instructions given below.
or
The undersigned hereby elects irrevocably to convert its right
to purchase ____________ shares of Common Stock purchasable under the within
Warrant into __________ shares of Common Stock of Big City Bagels, Inc. (based
on a "Market Price" of $________ per share of Common Stock). Please issue the
Common Stock in accordance with the instructions given below.
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Signature
NOTICE: The signature to this form must correspond with the
name as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name ________________________________________________________
(Print in Block Letters)
Address ________________________________________________________
Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the registered Holder to
effect a transfer of the within Warrant):
FOR VALUE RECEIVED, ________________________________ does
hereby sell, assign and transfer unto _________________________________ the
right to purchase _____________________ shares of Common Stock of Big City
Bagels, Inc. ("Company") evidenced by the within Warrant and does hereby
authorize the Company to transfer such right on the books of the Company.
Dated:____________________, 19___
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Signature
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Signature Guaranteed
NOTICE: The signature to this form must correspond with the
name as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm having
membership on a registered national securities exchange.
