1
EXHIBIT 2
NEITHER THIS WARRANT NOR THE SECURITIES PURCHASABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE
SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED
UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION IS
AVAILABLE AND AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER IS
DELIVERED TO SUCH EFFECT.
Issue Date: August 18, 2000 No. of Shares Subject to Warrant: 1,196,909
WARRANT TO PURCHASE COMMON STOCK
OF
NEW WORLD COFFEE - MANHATTAN BAGEL, INC.
This is to certify that, for value received, Brookwood New World
Investors, LLC (the "Holder") is entitled to purchase, subject to the provisions
of this Warrant, from NEW WORLD COFFEE - MANHATTAN BAGEL, INC., a Delaware
corporation (the "Company"), 1,196,909 shares (subject to adjustment or
reduction as provided herein) of Common Stock, $0.001 par value, of the Company
("Common Stock"), at a price of $0.01 per share (subject to adjustment as
provided herein) at any time during the period beginning on the Issue Date and
ending not later than 5:00 p.m. New York time on August 18, 2005 ( the
"Termination Date"). The number of shares of Common Stock to be received upon
the exercise of this Warrant and the price to be paid for a share of Common
Stock may be adjusted from time to time as hereinafter set forth. The shares of
Common Stock deliverable upon such exercise, and as adjusted from time to time,
are hereinafter sometimes referred to as "Warrant Shares," and the exercise
price of a share of Common Stock in effect at any time and as adjusted from time
to time is hereinafter sometimes referred to as the "Exercise Price."
(a) EXERCISE OF WARRANT.
(1) This Warrant may be exercised in whole or in part at any time
from time to time on or after the Issue Date until the Termination Date, by
presentation and surrender hereof to the Company at its principal office, or at
the office of its stock transfer agent, if any, with the Purchase Form annexed
hereto duly executed and accompanied by payment of the Exercise Price for the
number of shares specified in such form, in lawful money of the United States of
America in cash or by official bank or certified check made payable to the
Company.
(2) As an alternative to payment of the Exercise Price in cash,
the Holder shall have the right, at any time and from time to time, to convert
this Warrant
2
in whole or in part into shares of Common Stock (the "Conversion Right"). Upon
exercise of the Conversion Right, payment of the aggregate Exercise Price shall
may be made by delivery of this Warrant with instructions that the Company
retain as payment of the aggregate Exercise Price such number of Warrant Shares
as shall be determined under the next sentence. The Holder shall receive that
number of Warrant Shares determined by multiplying the number of Warrant Shares
for which the Conversion Right is exercised by a fraction, the numerator of
which shall be the difference between the then fair market value per Warrant
Share (based on the closing price on the trading day preceding the exercise of
the Conversion Right) and the Exercise Price per Warrant Share, and the
denominator of which shall be the then fair market value per Warrant Share. The
remaining Warrant Shares for which the Conversion Right has been made shall be
deemed to have been paid to the Company as the aggregate Exercise Price.
(3) The term "closing price" for each day shall mean the last
reported sale price or, in case no such sale takes place, on such day the
average of the closing bid and asked prices, in either case on the principal
national securities exchange or the Nasdaq National Market on which the
Company's Common Stock is listed or admitted to trading, or if the Company's
Common Stock is not listed or admitted to trading on any national securities
exchange or the Nasdaq National Market, the average of the highest reported bid
and lowest reported asked prices as furnished by the National Association of
Securities Dealers Inc. Automated Quotation System, or comparable system. The
term "trading day" shall mean (X) if the Common Stock is listed on at least one
stock exchange, a day on which there is trading on the principal stock exchange
on which the Common Stock is listed or (Y) if the Common Stock is not listed on
a stock exchange but sale prices of the Common Stock are reported on an
automated quotation system, a day on which trading is reported on the principal
automated quotation system on which sales of the Common Stock are reported.
(4) If this Warrant should be exercised in part only, the Company
shall, upon surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the rights of the Holder thereof to purchase the balance
of the shares purchasable thereunder. Upon receipt by the Company of this
Warrant at its office, or by the stock transfer agent of the Company, if any, at
its office, in proper form for exercise and together with payment of the
Exercise Price in the manner provided herein, the Holder shall be deemed to be
the holder of record of the shares of Common Stock issuable upon such exercise,
provided, however, that if at the date of surrender of such Warrants and payment
of such Exercise Price, the transfer books for the Common Stock shall be closed,
the certificates for the shares in respect of which such Warrants are then
exercised shall be issuable as of the date on which such books shall next be
opened, and until such date the Company shall be under no duty to deliver any
certificate for such shares and the Holder shall not be deemed to have become a
holder of record of such shares.
(5) Notwithstanding anything herein to the contrary, this Warrant
shall automatically be deemed to be exercised in full pursuant to the provisions
of
2
3
paragraph (a)(2) above, without any further action by or on behalf of the
Holder, immediately preceding the time this Warrant would otherwise expire.
(6) So long as this Warrant shall be outstanding, (i) if the
Company shall declare any dividend or make any distribution upon the Common
Stock, or (ii) if any capital reorganization of the Company, reclassification of
the capital stock of the Company, consolidation or merger of the Company with or
into another corporation, sale, lease or transfer of all or substantially all of
the property and assets of the Company to another corporation, or voluntary or
involuntary dissolution, liquidation or winding up of the Company shall be
effected, then in any such case, the Company shall cause to be mailed by
certified mail to the Holder, at least 20 days prior to the date specified in
(x) or (y) below, as the case may be, a notice containing a brief description of
the proposed action and stating the date on which (x) a record is to be taken
for the purpose of such dividend, distribution or offer for subscription or
purchase, or (y) such reorganization, reclassification, consolidation, merger,
sale, lease, transfer, dissolution, liquidation or winding up is to take place
and the date, if any is to be fixed, as of which the holders of the Common Stock
or other capital stock of the Company shall receive cash or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up.
(7) The Holder shall have no rights as a stockholder of the
Company for shares of Common Stock issuable hereunder unless and until such
shares are purchased in accordance herewith.
(b) RESERVATION OF SHARES. The Company hereby agrees that at all
times there shall be reserved for issuance and/or delivery upon exercise of this
Warrant such number of shares of its Common Stock as shall be required for
issuance and delivery upon exercise of this Warrant.
(c) FRACTIONAL SHARES. The Company shall not be required to issue
fractions of shares on the exercise of Warrants. If any fraction of a share
would, except for the provisions of this Section, be issuable on the exercise of
any Warrant, the Company will (1) if the fraction of a share otherwise issuable
is equal to or less than one-half, round down and issue to the Holder only the
largest whole number of shares of Common Stock to which the Holder is otherwise
entitled, or (2) if the fraction of a share otherwise issuable is greater than
one-half, round-up and issue to the Holder one additional share of Common Stock
in addition to the largest whole number of shares of Common Stock to which the
holder is otherwise entitled.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant
is exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other Warrants of different denominations entitling the
holder thereof to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Subject to the provisions of Section (g), upon
surrender of this
3
4
Warrant to the Company or at the office of its stock transfer agent, if any,
with the Assignment Form annexed hereto duly executed and funds sufficient to
pay any transfer tax, the Company shall, without charge, execute and deliver a
new Warrant in the name of the permitted assignee named in such instrument of
assignment and this Warrant shall be canceled. If this Warrant should be
assigned in part only, the Company shall, upon surrender of this Warrant in
accordance with the procedures set forth in the preceding sentence, execute and
deliver, in addition to the new Warrant described in the preceding sentence, a
new Warrant evidencing the rights of the Holder to purchase the balance of the
shares purchasable thereunder. The term "Warrant" as used herein includes any
Warrants 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 upon surrender and cancellation of this Warrant,
if mutilated, the Company will execute and deliver a new Warrant of like tenor
and date.
(e) RIGHTS OF THE HOLDER. The Holder 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 the Warrant and
are not enforceable against the Company except to the extent set forth herein.
(f) ANTI-DILUTION AND ADJUSTMENT PROVISIONS. The Exercise Price and
the number and kind of securities purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time beginning on the date of issue
of this Warrant, as hereinafter provided:
(1) In case the Company shall issue Common Stock as a dividend
upon Common Stock or in payment of a dividend thereon shall subdivide the number
of outstanding shares of its Common Stock into a greater number of shares or
shall contract the number of outstanding shares of its Common Stock into a
lesser number of shares, the Exercise Price then in effect shall be adjusted,
effective at the close of business on the record date for the determination of
stockholders entitled to receive such dividend or be subject to such subdivision
or contraction, to the price (computed to the nearest cent) determined by
dividing (A) the product obtained by multiplying the Exercise Price in effect
immediately prior to the close of business on such record date by the number of
shares of Common Stock outstanding prior to such dividend, subdivision or
contraction, by (B) the sum of the number of shares of Common Stock outstanding
immediately after such dividend, subdivision, or contraction.
(2) If any capital reorganization or reclassification of the
capital stock of the Company (other than as set forth in subsection (1) of this
Section (f)), or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected, then, lawful and adequate provision shall be made
whereby the holder of each Warrant shall thereafter have the right to purchase
and receive upon the basis and upon the terms and conditions specified in the
Warrant and in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
4
5
represented by such Warrant (the "Purchasable Shares"), such shares of stock,
securities or assets issuable or payable with respect to or in exchange for the
Purchasable Shares had they been purchased immediately before such
reorganization, reclassification, consolidation, merger or sale, and in any such
case appropriate provision shall be made with respect to the rights and interest
of the Holder to the end that the provisions of the Warrant (including, without
limitation, provisions for adjustment of the Exercise Price and of the number of
shares issuable upon the exercise of Warrants) shall thereafter be applicable as
nearly as may be practicable in relation to any shares of stock, securities, or
assets thereafter deliverable upon exercise of Warrants. The Company shall not
effect any such consolidation, merger or sale unless prior to or simultaneously
with the consummation thereof, the successor corporation (if other than the
Company) resulting from such consolidation or merger or the corporation
purchasing such assets shall assume, by written instrument, the obligation to
deliver to the Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the Holder may be entitled to
purchase.
(3) Upon each adjustment of the Exercise Price pursuant to
subsection (1) of this Section (f), the number of shares of Common Stock
specified in each Warrant shall thereupon evidence the right to purchase that
number of shares of Common Stock (calculated to the nearest hundredth of a share
of Common Stock) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
purchasable immediately prior to such adjustment upon exercise of such Warrant
and dividing the product so obtained by the Exercise Price in effect after such
adjustment.
(4) Irrespective of any adjustments of the number or kind of
securities issuable upon exercise of Warrants or the Exercise Price, Warrants
theretofore or thereafter issued may continue to express the same number of
shares of Common Stock and Exercise Price as are stated in similar Warrants
previously issued.
(5) The Company may, at its sole option, retain the independent
public accounting firm regularly retained by the Company, or another firm of
independent public accountants of recognized standing selected by the Company's
Board of Directors, to make any computation required under this Section (f) and
a certificate signed by such firm shall be conclusive evidence of any
computation made under this Section (f).
(6) Whenever there is an adjustment in the Exercise Price or in
the number or kind of securities issuable upon exercise of the Warrants, or
both, as provided in this Section (f), the Company shall (i) promptly file in
the custody of its Secretary or Assistant Secretary a certificate signed by the
Chairman of the Board or the President or a Vice President of the Company and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company, setting forth the facts requiring such adjustment and
the number and kind of securities issuable upon exercise of each Warrant after
such adjustment; and (ii) cause a notice stating that such adjustment has been
effected and stating the Exercise Price then in effect and the number
5
6
and kind of securities issuable upon exercise of each Warrant to be sent to each
registered holder of a Warrant.
(7) The Exercise Price and the number of shares issuable upon
exercise of this Warrant shall not be adjusted except in the manner and only
upon the occurrence of the events heretofore specifically referred to in this
Section (f).
(8) The Board of Directors of the Company may, in its sole
discretion, (a) reduce the Exercise Price of each Warrant, (b) increase the
number of shares of Common Stock issuable upon exercise of each Warrant and/or
(c) provide for the issuance of other securities (in addition to the shares of
Common Stock otherwise issuable upon exercise of the Warrant) upon exercise of
each Warrant.
(g) TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933 AND OTHER
APPLICABLE SECURITIES LAWS. This Warrant or the Warrant Shares or any other
security issued or issuable upon exercise of this Warrant may not be sold or
otherwise disposed of unless Holder provides the Company with an opinion of
counsel satisfactory to the Company in form satisfactory to the Company that
this Warrant or the Warrant Shares or such other security may be legally
transferred without violating the Securities Act of 1933, as amended (the "1933
Act") and any other applicable securities law and then only against receipt of
an agreement of the transferee to comply with the provisions of this Section (g)
with respect to any resale or other disposition of such securities. Upon
exercise of this Warrant, the Holder shall, if requested by the Company, confirm
in writing, that the Warrant Shares are being acquired solely for the Holder's
own account and that Holder or Holder's purchaser representative is an
accredited investor, as defined in Rule 501 under the 1933 Act.
(h) This Warrant is subject to the rights and benefits of the
Registration Rights Agreement dated as of August 11, 2000.
6
7
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
as of the Issue Date first set forth above by an authorized officer.
NEW WORLD COFFEE -
MANHATTAN BAGEL, INC.
By: ______________________
R. Xxxxx Xxxxxx, President
Attest:
______________________, Secretary
Dated: August 18, 2000
7
8
PURCHASE FORM
Dated _________, 2000
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing shares of Common Stock and hereby makes
payment of ________ in payment of the Exercise Price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name _____________________________________________
(Please typewrite or print in block letters.)
Address __________________________________________
Signature ________________________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED,
hereby sells, assigns and transfers unto
Name _____________________________________________
(Please typewrite or print in block letters.)
Address __________________________________________
The right to purchase Common Stock represented by this Warrant to the extent of
___ shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint ______________, Attorney, to transfer the on the books of
the Company with full power of substitution in the premises.
Date ____________, 2000
Signature
8
