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EXHIBIT 4.4
OREGON BAKING COMPANY,
DBA XXXXXX BAKING
AND
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
WARRANT AGREEMENT
DATED __________________, 1999
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of _____________________, 1999, by
and between OREGON BAKING COMPANY, dba XXXXXX BAKING, an Oregon corporation (the
"Company"), and XXXXX XXXXXX SHAREHOLDER SERVICES, L.L.C., a New Jersey limited
liability company, as warrant and transfer agent (hereinafter called the
"Warrant Agent").
WHEREAS, the Company proposes to issue and sell to the public
(the "Public Offering") up to 2,012,500 shares of Common Stock, no par value
(hereinafter referred to as "Common Stock" or "Common Shares"), and up to
2,012,500 Redeemable Common Stock Purchase Warrants to purchase a share of
Common Stock at $5.50 per share (the "Warrant") (including the underwriter's
over-allotment options granted to Xxxxxx Xxxxx Securities, Inc., the Company's
underwriter (the "Underwriter")); and
WHEREAS, the Company desires to appoint the Warrant Agent to act
on behalf of the Company in connection with the issuance, registration,
transfer, exchange and exercise of the Warrants, and the Warrant Agent is
willing to accept such appointment;
WHEREAS, the Public Offering has been registered under a
Registration Statement on Form SB-2 (File No. 33-77551) and declared effective
by the Securities and Exchange Commission (the "SEC" or "Commission") on
___________, 1999 (the "Effective Date").
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the Warrant
Agent to act as Agent for the Company in accordance with the terms, conditions
and instructions provided in this Agreement, and the Warrant Agent hereby
accepts such appointment.
SECTION 2. FORM OF WARRANT. The text of the Warrant and of the form of election
to purchase Common Shares, as shall be printed on the reverse side of the
Warrant Certificate, is substantially as set forth respectively in Exhibit A
attached hereto. The per share Exercise Price (as hereinafter defined) and the
number of Common Shares issuable upon exercise of the Warrants are subject to
adjustment upon the occurrence of certain events, all as hereinafter provided.
The Warrants shall be executed on behalf of the Company by the manual or
facsimile signature of the present or any future Chairman, President, Chief
Executive Officer or Executive Vice President of the Company, attested by the
manual or facsimile signature of the present or any future Secretary or
Assistant Secretary of the Company.
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The Warrants will be dated as of the date of issuance by the Warrant Agent
either upon initial issuance or upon transfer or exchange.
SECTION 3. COUNTERSIGNATURE AND REGISTRATION. The Warrant Agent shall maintain
books for the transfer and registration of Warrants. Upon the initial issuance
of the Warrants and delivery to the Warrant Agent of all necessary information,
the Warrant Agent shall issue and register the Warrants in the names of the
respective holders thereof. The Warrants shall be countersigned manually or by
facsimile by the Warrant Agent (or by any successor to the Warrant Agent then
acting as warrant agent under this Agreement) and shall not be valid for any
purpose unless so countersigned. Warrants may be so countersigned, however, by
the Warrant Agent (or by its successor as warrant agent) and be delivered by the
Warrant Agent, notwithstanding that the persons whose manual or facsimile
signatures appear thereon as proper officers of the Company shall have ceased to
be such officers at the time of such countersignature or delivery.
SECTION 4. TRANSFERS AND EXCHANGES. The Warrant Agent shall transfer, from time
to time, any outstanding Warrants upon the books to be maintained by the Warrant
Agent for that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer. Upon any such transfer, a
new Warrant shall be issued to the transferee and the surrendered Warrant shall
be delivered by the Warrant Agent. Warrants so canceled shall be delivered by
the Warrant Agent to the Company from time to time upon request. Warrants may be
exchanged at the option of the holder thereof, when surrendered at the office of
the Warrant Agent, 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 Common Shares.
SECTION 5. RIGHTS OF REDEMPTION BY COMPANY. The Warrants are redeemable by the
Company at a price of $0.25 per Warrant commencing on the "Effective Date", upon
30 days' prior written notice by the Company if the closing bid of the Company's
Common Stock, as reported on the Nasdaq SmallCap Market or as reported on a
national or regional securities exchange for 30 consecutive trading days ending
within 10 days of the notice of redemption, averages in excess of $10.00 per
share, subject to adjustment. Prior to the first anniversary of the Effective
Date, the Warrants will not be redeemable by the Company without the written
consent of the Underwriter. If the Company exercises the right to redeem the
Warrants, the Warrants will be exercisable until the close of business on the
date for redemption fixed in the notice of redemption. In that event, any holder
of a Warrant may either (i) exercise the Warrant and pay the Exercise Price
prior to the redemption date specified in the Notice of Call, or (ii) accept the
redemption price in consideration for cancellation of the Warrant. Any Warrants
not either converted or tendered back to the Company by the end of the date
specified in the Notice of Call, will be entitled only to the redemption price
of such Warrants, if redeemed, and the holder thereof shall have forfeited his
right to so exercise.
SECTION 6. EXERCISE OF WARRANTS. Subject to the provisions of this Agreement,
each registered holder of Warrants shall have the right which may be exercised
through the fifth
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anniversary of the Effective Date, at the close of business on
_________________, 2004 to purchase from the Company (and the Company shall
issue and sell to such registered holder of Warrants) the number of fully paid
and non-assessable Common Shares specified in such Warrants, upon surrender to
the Company at the office of the Warrant Agent of such Warrants, with the form
of election to purchase duly and properly filled in and signed, and upon payment
to the order of the Company of the Exercise Price, determined in accordance with
Sections 10 and 11 herein, for the number of shares in respect of which such
Warrants are then exercised. Payment of such Exercise Price shall be made in
cash or by certified check or bank draft or postal or express money order
payable, in United States dollars, to the order of the Company. No adjustment
shall be made for any dividends on any Common Shares issuable upon exercise of a
Warrant. Subject to Section 7, upon such surrender of Warrants, and payment of
the Exercise Price as aforesaid, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
registered holder of such Warrants and in such name or names as such registered
holder may designate, a certificate or certificates for the largest number of
whole Common Shares so purchased upon the exercise of such Warrants. The Company
shall not be required to issue any fraction of a share of Common Stock or make
any cash or other adjustment except as provided in Section 12 herein, in respect
of any fraction of a Common Share otherwise issuable upon such surrender. Such
certificate or certificates shall be deemed to have been issued and any person
so designated to be named therein shall be deemed to have become a holder of
record of such shares as of the date of the surrender of such Warrants and
payment of the Exercise Price as provided herein; provided, however, that if, at
the date of surrender of such Warrants and payment of such Exercise Price, the
transfer books for the Common Shares or other class of stock purchasable upon
the exercise of such Warrants 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 be opened and until such date the Company shall
be under no duty to deliver any certificate for such shares; provided, further,
however, that the transfer books aforesaid, unless otherwise required by law or
by applicable rule of any national or regional securities exchange, shall not be
closed at any one time for a period longer than 20 days. The rights of purchase
represented by the Warrants shall be exercisable, at the election of the
registered holders thereof, either as an entirety or from time to time for part
only of the shares specified therein and, in the event that any Warrant is
exercised in respect of less than all of the shares specified therein at any
time prior to the date of expiration of the Warrant, a new Warrant or Warrants
will be issued to such registered holder for the remaining number of shares
specified in the Warrant so surrendered, and the Warrant Agent is hereby
irrevocably authorized to countersign and to deliver the required new Warrants
pursuant to the provisions of this Section during the Warrant exercise period,
and the Company, whenever requested by the Warrant Agent, will supply the
Warrant Agent with Warrants duly executed on behalf of the Company for such
purpose.
SECTION 7. PAYMENT OF TAXES. The Company will pay any documentary stamp taxes
attributable to the initial issuance of Common Shares issuable upon the exercise
of Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes or governmental charges which may be payable in respect of any
transfer involved in the issue or delivery of any certificates for Common Shares
in a name other than that of the registered holder
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of Warrants in respect of which such shares are issued, and in such case neither
the Company nor the Warrant Agent shall be required to issue or deliver any
certificate for Common Shares or any Warrant until the person requesting the
same has paid to the Company the amount of such tax or charge or has established
to the Company's or Warrant Agent's satisfaction that such tax has been paid.
SECTION 8. MUTILATED OR MISSING WARRANTS. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Company may in its discretion issue
and the Warrant Agent shall countersign and deliver in exchange and substitution
for and upon cancellation of the mutilated Warrant, or in lieu of and
substitution for the Warrant lost, stolen or destroyed, a new Warrant of like
tenor and representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such loss, theft
or destruction of such Warrant and indemnity, if requested, also satisfactory to
them. Applicants for such substitute Warrants shall also comply with such other
reasonable regulations and pay such reasonable charges as the Company or the
Warrant Agent may prescribe.
SECTION 9. RESERVATION OF COMMON SHARES. There have been reserved, and the
Company shall at all times keep reserved, out of the authorized and unissued
Common Shares, a number of shares sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and the Transfer Agent for the
Common Shares and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid are hereby irrevocably authorized and directed at all times
to reserve such number of authorized and unissued shares as shall be requisite
for such purpose. The Company agrees that all Common Shares issued upon exercise
of the Warrants shall be, at the time of delivery of the certificates for such
Common Shares, validly issued and outstanding, fully paid and non-assessable and
listed on any national or regional securities exchange or included for
membership in any interdealer quotation system upon which the other Common
Shares are then so listed. The Company will keep a copy of this Agreement on
file with the Transfer Agent for the Common Shares and with every subsequent
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants. The Warrant
Agent is hereby irrevocably authorized to requisition from time to time such
Transfer Agent for stock certificates required to honor outstanding Warrants.
The Company will supply such Transfer Agent with duly executed stock
certificates for such purpose. All Warrants surrendered in the exercise of the
rights thereby evidenced shall be canceled by the Warrant Agent and shall
thereafter be delivered to the Company, and such canceled Warrants shall
constitute sufficient evidence of the number of Common Shares which have been
issued upon the exercise of such Warrants. Promptly after the date of expiration
of the Warrants, the Warrant Agent shall certify to the Company the total
aggregate amount of Warrants then outstanding, and thereafter no Common Shares
shall be subject to reservation in respect to such Warrants which shall have
expired.
SECTION 10. WARRANT PRICE. The Exercise Price at which Common Stock shall be
purchasable shall be $5.50 per whole share. No fractional shares shall be
issued.
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SECTION 11. ADJUSTMENTS. Subject and pursuant to the provisions of this Section
11, the Exercise Price and number of Common Shares subject to this Warrant shall
be subject to adjustment from time to time as set forth hereinafter.
11.1 Adjustment for Dividends, Subdivisions, Combinations or
Reclassifications; Adjustment for Issuance of Certain Stock.
In case the Company shall (a) pay a dividend or make a distribution in
shares of its capital stock (whether shares of Common Stock or of capital stock
of any other class), (b) subdivide its outstanding shares of Common Stock into a
greater number of shares, (c) combine its outstanding shares of Common Stock
into a smaller number of shares, or (d) issue by reclassification of its shares
of Common Stock any shares of capital stock of the Company; then, and in each
such case, the per share Exercise Price and the number of Warrants in effect
immediately prior to such action shall be adjusted so that the registered
holders of the Warrants shall be entitled to receive the number and kind of
shares of the Company which such holders would have owned immediately following
such action had the Warrants been exercised immediately prior thereto. In case
the Company shall sell shares of Common Stock (or other securities convertible
into or exercisable for Common Stock), at a price per share or share equivalent
below the lesser of the then-applicable exercise price of the Warrant or the
then-current market price of the Common Stock; then the Exercise Price in effect
immediately prior to such action shall be adjusted to equal such price per share
or share equivalent. An adjustment made pursuant to this Section shall become
effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination, reclassification or the issuance of
shares or share equivalents. If, as a result of an adjustment made pursuant to
this Section, the registered holders of the Warrants shall become entitled to
receive shares of two or more classes of capital stock of the Company, the Board
of Directors of the Company (whose determination shall be conclusive) shall
determine the allocation of the adjusted Exercise Price between or among shares
of such class of capital stock.
Immediately upon any adjustment of the Exercise Price pursuant to this
Section, the Company shall send written notice thereof to the Warrant Agent and
to the shareholders, as provided in Section 13.
11.2 Adjustment For Reorganization, Merger or Consolidation.
In case of any reorganization of the Company or consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another entity (other than a consolidation or merger which does not result in
any reclassification or change of the outstanding Common Stock), the entity
formed by such consolidation or merger shall execute and deliver to Warrant
Agent a supplemental Warrant Agreement providing that the registered holder of
each Warrant then outstanding or to be outstanding shall have the right
thereafter (until the expiration of such Warrant) to receive, upon exercise of
such warrant, the kind and amount of shares of stock and other securities and
property receivable upon such consolidation or merger, by a holder
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of the number of shares of Common Stock of the Company for which such warrant
might have been exercised immediately prior to such reorganization,
consolidation, merger, conveyance, sale or transfer. Such supplemental Warrant
Agreement shall provide for adjustments which shall be identical to the
adjustments provided in Section 11. The Company shall not effect any such
consolidation, merger, or similar transaction as contemplated by this paragraph,
unless prior to or simultaneously with the consummation thereof, the successor
entity (if other than the Company) resulting from such consolidation or merger
or the entity purchasing, receiving, or leasing such assets or other
appropriate entity shall assume, by written instrument executed and delivered to
the Warrant Agent, the obligation to deliver to the registered holders, such
shares of stock, securities, or assets as, in accordance with the foregoing
provisions, such holders may be entitled to purchase, and to perform the other
obligations of the Company under this Agreement. The above provision of this
Subsection shall similarly apply to successive consolidations or successively
whenever any event listed above shall occur.
11.3 Adjustment in Number of Securities.
Upon each adjustment of the Exercise Price pursuant to the provisions of
this Section 11, the number of securities issuable upon the exercise of each
Warrant shall be adjusted to the nearest full amount by multiplying a number
equal to the Exercise Price in effect immediately prior to such adjustment by
the number of securities issuable upon exercise of the Warrants immediately
prior to such adjustment and dividing the product so obtained by the adjusted
Exercise Price.
11.4 No Adjustment of Exercise Price in Certain Cases.
No adjustment of the Exercise Price shall be made if the amount of said
adjustment shall be less than 5 cents ($0.05) per Common Share, provided,
however, that in such case any adjustment that would otherwise be required then
to be made shall be carried forward and shall be made at the time of and
together with the next subsequent adjustment which, together with any adjustment
so carried forward, shall amount to at least 5 cents ($.05) per Common Share.
11.5 Liquidation, Dissolution, or Winding Up
In the event the Company adopts a resolution for the liquidation,
dissolution, or winding up of the Company's business, the Company will give
written notice of such adoption of a resolution to the registered holders of the
Warrants pursuant to Section 13. Thereupon all liquidation and dissolution
rights under the Warrants will terminate at the end of thirty (30) days from the
date of the notice to the extent not exercised within those thirty (30) days.
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11.6 No Adjustment Related to Non-Stock Dividends and to the Exercise of
Warrants, Underwriter Warrants or other Outstanding Options or Warrants
Anything hereinabove to the contrary notwithstanding, no adjustment of
the Exercise Price or in the number of Common Shares subject to any Warrant
shall be made upon (i) the payment of dividends (other than stock dividends) on
the Common Stock or (ii) the issuance or sale by the Company of any Common
Shares (a) pursuant to the exercise of any warrants which may be issued by the
Company (b) pursuant to any underwriting agreement between the Company and any
underwriter (including the Underwriter), (c) pursuant to the issuance of shares
of Common Stock upon exercise of any of the Warrants, (d) pursuant to any
existing stock option plan or any such plan which may be adopted by the Company,
or (e) otherwise in connection with any issuance of securities by the Company,
except as specifically identified herein.
11.7 Miscellaneous
On the effective date of any new Exercise Price the number of shares as
to which any Warrant may be exercised shall be increased or decreased so that
the total sum payable to the Company on the exercise of such Warrant shall
remain constant.
The 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 shares as is stated in the Warrants
initially issued pursuant to this agreement. However, the Company may at any
time in its sole discretion (which shall be conclusive) make any change in the
form of Warrant that the Company may deem appropriate and that does not affect
the substance thereof; and any Warrant thereafter issued or countersigned,
whether in exchange or substitution for an outstanding Warrant or otherwise, may
be in the form as so changed.
SECTION 12. FRACTIONAL INTEREST. The Company shall not be required to issue
certificates representing fractions of Common Shares upon the exercise of the
Warrants, nor shall it be required to issue script or pay cash in lieu of
fractional interests, it being the intent of the parties that all fractional
interests may be eliminated, at the Company's option, by rounding any fraction
up to the nearest whole number of Common Shares or other securities, properties
or rights, or in lieu thereof paying cash equal to such fractional interest
multiplied by the current value of a share of Common Stock. The Warrant Agent
shall have no duty or obligation with respect to this Section 12 unless and
until it has received specific instructions (and sufficient cash, if required)
from the Company with respect to its duties and obligations under such Section.
SECTION 13. NOTICES TO WARRANT HOLDERS.
13.1 Notice to Warrant Agent Upon Adjustment
Upon any adjustment of the Exercise Price and the number of shares
issuable on exercise of a Warrant, then and in each such case the Company shall
give written notice thereof to the
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Warrant Agent, which notice shall state the Exercise Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. The Warrant Agent shall be fully protected in relying on
any such notice and on any adjustment therein contained and shall have no duty
with respect to and shall not be deemed to have knowledge of any adjustment
unless and until it shall have received such notice.
13.2 Additional Information
The Company shall cause to be sent by first-class mail, postage prepaid,
to each registered holder of Warrants at his or her address appearing on the
Warrant register as of the record date: (i) all written notices of any
adjustment of the Exercise Price and (ii) copies of all financial statements and
reports, proxy statements and other documents as it shall send to its
shareholders.
SECTION 14. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANTS.
14.1 The Warrant Agent shall forward promptly to the Company, with
respect to Warrants exercised, the funds which will be deposited in a special
account in a bank designated by the Company for the benefit of the Company, for
the purchase of Common Shares through the exercise of such Warrants.
14.2 The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours.
SECTION 15. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT. Any
corporation or company which may succeed to the business of the Warrant Agent by
any merger or consolidation or otherwise to which the Warrant Agent shall be a
party, shall be the successor Warrant Agent hereunder without the execution or
filing of any paper or any further act on the part of any of the parties hereto;
provided that such corporation or company would be eligible for appointment as a
successor Warrant Agent under the provisions of Section 17 of this Agreement. In
case at the time such successor to the Warrant Agent shall succeed to the agency
created by this Agreement, any of the Warrants shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent and deliver such Warrants so
countersigned; and in case at that time any of the Warrants shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrants
either in the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrants shall have the full
force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrants shall have been countersigned but
not delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrants so countersigned; and
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in case at that time any of the Warrants shall not have been countersigned, the
Warrant Agent may countersign such Warrants either in its prior name or in its
changed name; and in all such cases such Warrants shall have the full force
provided in the Warrants and in this Agreement.
SECTION 16. DUTIES OF WARRANT AGENT. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Warrants, by their acceptance
thereof, shall be bound:
(a) The statements of fact and recitals contained herein and
in the Warrants shall be taken as statements of the
Company, and the Warrant Agent assumes no responsibility
for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be
taken by it. The Warrant Agent assumes no responsibility
with respect to the distribution of the Warrants except
as herein expressly provided.
(b) The Warrant Agent shall not be responsible for any
failure of the Company to comply with any of the
covenants contained in this Agreement or in the Warrants
to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company)
and the Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any
Warrant in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance
with the opinion or advice of such counsel.
(d) The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any
Warrant for any action taken in reliance on any notice,
resolution, waiver, consent, order, certificate, or
other paper, document or instrument reasonably believed
by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(e) The Company agrees (i) to pay to the Warrant Agent
reasonable compensation for all services rendered by the
Warrant Agent hereunder, (ii) to reimburse the Warrant
Agent for all expenses, disbursements, taxes and
governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the
preparation, execution, delivery, amendment and
administration of this Agreement and (iii) to indemnify
the Warrant Agent and save it harmless against any and
all expenses and liabilities, including, but not limited
to damages, fines, penalties, claims, demands,
settlements, judgments, costs and reasonable counsel
fees, for any action taken, suffered or omitted by the
Warrant Agent in connection with the acceptance and
administration of this Agreement except as a result of
the Warrant Agent's gross negligence or bad faith (as
finally determined by a court of competent
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jurisdiction). The indemnity provided herein shall
survive the termination of this Agreement and the
termination and the expiration of the Warrants. The
costs and expenses incurred in enforcing this right of
indemnification shall be paid by the Company.
(f) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to
take any other action likely to involve expense unless
the Company or one or more registered holders of
Warrants shall furnish the Warrant Agent with security
and indemnity for any costs and expenses which may be
incurred, but this provision shall not affect the power
of the Warrant Agent to take such action as the Warrant
Agent may consider proper, whether with or without any
such security or indemnity. All rights of action under
this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of
any of the Warrants or the production thereof at any
trial or other proceeding relative thereto, and any such
action, suit or proceeding instituted by the Warrant
Agent shall be brought in its name as Warrant Agent, and
any recovery of judgment shall be for the ratable
benefit of the registered holders of the Warrants, as
their respective rights or interests may appear.
(g) The Warrant Agent and any shareholder, director,
affiliate, officer, partner or employee of the Warrant
Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily
interested in any transaction in which the Company may
be interested, or contract with or lend money to
otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein shall
preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
(h) The Warrant Agent's duties shall be determined solely by
the express provisions hereof. The Warrant Agent shall
not be liable for anything which it may do or refrain
from doing in connection with this Agreement except for
its own gross negligence or bad faith, each as finally
determined by a court of competent jurisdiction.
Anything to the contrary notwithstanding, in no event
shall the Warrant Agent be liable for special, punitive,
indirect, consequential or incidental loss or damage of
any kind whatsoever (including but not limited to lost
profits), even if the Warrant Agent has been advised of
the likelihood of such loss or damage. Any liability of
the Warrant Agent under this Agreement will be limited
to the amount of fees paid by the Company to the Warrant
Agent.
(i) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys
or agents, and the Warrant Agent shall not be
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answerable or accountable for any act, default, neglect
or misconduct of any such attorneys or agents or for any
loss to the Company resulting from such neglect or
misconduct, absent gross negligence or bad faith in the
selection and continued employment thereof.
(j) Any request, direction, election, or order or demand of
the Company shall be sufficiently evidenced by an
instrument signed in the name of the Company by its
President or an Executive Vice President or its
Secretary or an Assistant Secretary or its Treasurer or
an Assistant Treasurer (unless other evidence in respect
thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to
the Warrant Agent by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company.
(k) No provision of this Agreement shall require the Warrant
Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder or in the exercise of its rights if it
believes that repayment of such funds or adequate
indemnification against such risk or liability is not
assured to it.
SECTION 17. CHANGE OF WARRANT AGENT. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving to the Company notice
in writing, and to the holders of the Warrants notice by mailing such notice to
holders at their addresses appearing on the Warrant register, of such
resignation, specifying a date when such resignation shall take effect. The
Warrant Agent may be removed by like notice to the Warrant Agent from the
Company and by like mailing of notice to the holders of the Warrants. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by the registered
holder of a Warrant (who shall, with such notice, submit his Warrant for
inspection by the Company), then the registered holder of any Warrant may apply
to any court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Any successor warrant agent, whether appointed by the Company or
by such court, shall be a bank, or trust company or active transfer agent, in
good standing, incorporated under the laws of a state of the United States of
America, or the laws of the United States of America. After appointment, the
successor warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor warrant agent all canceled Warrants, records and property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to file or mail any
notice provided by this Section, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Warrant
Agent or the appointment of the successor warrant agent, as the case may be.
Warrant Agreement
Page 11
13
SECTION 18. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment of any
Transfer Agent for the Common shares or of any subsequent transfer agent for
Common Shares or other shares of the Company's capital stock issuable upon
exercise of the rights of purchase represented by the Warrants, the Company will
file with the Warrant Agent a statement setting forth the name and address of
such Transfer Agent. The Warrant Agent hereby acknowledges that it is, at the
time of execution hereof, the Transfer Agent, and waives any statement required
herein with respect thereto.
SECTION 19. NOTICES. Any notice pursuant to this Agreement to be given or made
by the Warrant Agent or by the registered holder of any Warrant to or on the
Company shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Warrant Agent) as follows:
Oregon Baking Company, dba Xxxxxx Baking
0000 XX Xxxxxxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Chief Financial Officer
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx Xxxx LLP
000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
Xxxxx Xxxxxx Shareholders Services, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxxx
with a copy to:
Xxxxxxx X. Xxxxxxxxxx, Vice President
Xxxxx Xxxxxx Shareholder Services, Inc.
000 X. Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Warrant Agreement
Page 12
14
SECTION 20. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent may
from time to time supplement or amend this Agreement without the approval of any
holders of Warrants in order to cure any ambiguity or to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable and which shall not be inconsistent with the provisions
of the Warrants and which shall not adversely affect the interests of the
Warrant Agent or the holders of Warrants.
SECTION 21. SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
SECTION 22. OREGON CONTRACT. This Agreement shall be deemed to be a contract
made under the laws of the State of Oregon and for all purposes shall be
construed in accordance with laws of said state; provided, however, that all
provisions regarding the rights, duties and obligations of the Warrant Agent
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed entirely within such
State.
SECTION 23. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or entity other than the Company, the Warrant
Agent and the registered holders of the Warrant any legal or equitable right,
remedy or claim under this Agreement; this Agreement shall be for the sole and
exclusive benefit of the Company, the Warrant Agent and the registered holders
of the Warrants.
SECTION 24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall be considered an original.
SECTION 25. EFFECTIVENESS. This Agreement shall be deemed binding, and,
therefore, in effect, as of and subject to the effective date of the
Registration Statement for the Public Offering.
Warrant Agreement
Page 13
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
OREGON BAKING COMPANY, dba
XXXXXX BAKING
---------------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Chairman, President and Chief Executive Officer
XXXXX XXXXXX SHAREHOLDER SERVICES, L.L.C.
---------------------------------------------------
By:
------------------------------------------------
Its:
------------------------------------------------
Warrant Agreement
Page 14
16
EXHIBIT A
FORM OF WARRANT
[Front Side]
This certifies that ________________________________, or registered assigns, is
the registered holder of the number of Warrants (the "Warrants") set forth
above. Each Warrant entitles the holder thereof to purchase from Oregon Baking
Company, doing business as Xxxxxx Baking (the "Corporation"), subject to the
terms and conditions set forth hereinafter and in the Warrant Agreement more
fully described hereinafter (the "Warrant Agreement"), one fully paid and
non-assessable share of Common Stock, no par value, of the Corporation ("Common
Stock") upon presentation and surrender of this Warrant Certificate with a
completed form of subscription to be executed upon exercise of Warrant
(appearing on the reverse), at any time prior to 5:00 pm, Pacific Time, on
____________, 2004 or, if such Warrant is redeemed as provided in the Warrant
Agreement, at any time prior to the effective time of such redemption, at the
stock transfer office in Seattle, Washington of ChaseMellon Shareholder
Services, LLC ("Warrant Agent"), or of its successor warrant agent or, if there
be no successor warrant agent, at the corporate offices of the Corporation, and
upon payment of the Exercise Price (as defined in the Warrant Agreement) and any
applicable taxes paid either in cash, or by certified or official bank check,
payable in lawful currency of the United States of America to the order of the
Corporation. Each Warrant initially entitles the holder to purchase one share of
Common Stock for $5.50. The number and kind of securities of other property for
which the Warrants are exercisable are subject to further adjustment in certain
events, such as mergers, splits, stock dividends, recapitalizations and the
like, to prevent dilution. The Corporation may redeem, upon 30 days' notice, any
or all outstanding and unexercised Warrants at any time if the Daily Price has
exceeded $10.00 for 30 consecutive trading days ending within 10 days of the
notice of redemption at a price equal to $0.25 per Warrant. For the purpose of
the foregoing sentence, the term "Daily Price" shall mean, for any relevant day,
the closing bid price of the Corporation's Common Stock on that day, as reported
in the Nasdaq SmallCap Market or as reported on a national or regional exchange
on which the Common Stock is listed. All Warrants not theretofore exercised or
redeemed will expire on ________________, 2004.
Reference is hereby made to the additional provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth herein.
The Corporation shall not be required to issue or deliver any
certificate for shares of Common Stock or other securities upon the exercise of
Warrants evidenced by this Warrant Certificate until any tax or governmental
charge which may be payable in respect thereof by the holder of this Warrant
Certificate pursuant to the Warrant Agreement shall have been paid, such tax or
charge being payable by the holder of this Warrant Certificate at the time of
surrender.
Exhibit A
Page 1
17
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent
WITNESS the facsimile signatures of its duly authorized officers of the
Corporation.
Dated:
OREGON BAKING COMPANY, dba XXXXXX BAKING
By: By:
--------------------------------------- ---------------------------------
President Secretary
COUNTERSIGNED:
CHASEMELLON SHAREHOLDER SERVICES, LLC
By: , Warrant Agent
-----------------------------------
Authorized Signature
Exhibit A
Page 2
18
[REVERSE SIDE]
This Warrant Certificate is subject to all of the terms, provisions and
conditions of the Warrant Agreement, dated _______________________ ("Warrant
Agreement"), between the Corporation and the Warrant Agent, to all of which
terms, provisions and conditions the registered holder of this Warrant
Certificate consents by acceptance hereof. The Warrant Agreement is incorporated
herein by reference and made a part hereof and reference is made to the Warrant
Agreement for a full description of the rights, limitations of rights,
obligations, duties and immunities of the Warrant Agent, the Corporation and the
holders of the Warrant Certificates. Copies of the Warrant Agreement are
available for inspection at the stock transfer office of the Warrant Agent or
may be obtained upon written request addressed to the Corporation at 0000 XX
Xxxxxxxxxx, Xxxxxxxx, Xxxxxx 00000.
The Corporation shall not be required upon the exercise of the Warrants
evidenced by this Warrant Certificate to issue fractions of Warrants, Common
Stock or other securities, but may make adjustment therefore in cash on the
basis of the current market value of any fractional interest as provided in the
Warrant Agreement.
In certain cases, the sale of securities by the Corporation upon
exercise of Warrants may violate the securities laws of the United States,
certain states thereof or other jurisdictions. The Corporation has agreed to use
its best efforts to cause a registration statement to continue to be effective
during the term of the Warrants with respect to such sales under the Securities
Act of 1933, and to take such action under the laws of various states as may be
required to cause the sale of securities upon exercise to be lawful. However,
the Corporation will not be required to honor the exercise of Warrants if, in
the opinion of the Corporation, upon advice of counsel, the sale of securities
upon such exercise would be unlawful.
This Warrant Certificate, with or without other Certificates, upon
surrender to the Warrant Agent, any successor warrant agent or, in the absence
of any successor warrant agent, at the corporate office of the Corporation, may
be exchanged for another Warrant Certificate or Certificates so surrendered. If
the Warrants evidenced by this Warrant Certificate shall be exercised in part,
the holder hereof shall be entitled to receive upon surrender hereof another
Warrant Certificate or Certificates evidencing the number of Warrants not so
exercised.
No holder of this Warrant Certificate, as such, shall be entitled to vote,
receive dividends or be deemed the holder of Common Stock or any other
securities of the Corporation which may at any time be issuable on the exercise
hereof for any purpose whatever, nor shall anything contained in the Warrant
Agreement or herein be construed to confer upon the holder of this Warrant
Certificate, as such, any of the rights of a shareholder of the Corporation or
any right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof or give or withhold consent to any corporate
action (whether upon any matter
Exhibit A
Page 3
19
submitted to shareholders at any meeting thereof, or give or withhold consent to
any merger, recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value, consideration,
conveyance or otherwise) or to receive notice of meetings or other actions
affecting shareholders (except as provided in the Warrant Agreement) or to
receive dividends or subscription rights or otherwise until the Warrants
evidenced by this Warrant Certificate shall have been exercised and the Common
Stock purchasable upon the exercise thereof shall have been delivered as
provided in the Warrant Agreement.
If this Warrant Certificate shall be surrendered for exercise within any
period during which the transfer books for the Corporation's Common Stock or
other class of stock purchasable upon the exercise of the Warrants evidenced by
this Warrant Certificate are closed for any purpose, the Corporation shall not
be required to make delivery of certificates for shares purchasable upon such
transfer until the date of the reopening of said transfer books.
Every holder of this Warrant Certificate, by accepting the same,
consents and agrees with the Corporation, the Warrant Agent, and with every
other holder of a Warrant Certificate that:
(a) this Warrant Certificate is transferable on the transfer books of
the Warrant Agent only upon the terms and conditions set forth in the Warrant
Agreement; and
(b) the Corporation and the Warrant Agent may deem and treat the person
in whose name this Warrant Certificate is registered as the absolute owner
hereof (notwithstanding any notation of ownership or other writing thereon made
by anyone other than the Corporation or the Warrant Agent) for all purposes
whatever, and neither the Corporation nor the Warrant Agent shall be affected by
any notice to the contrary
Exhibit A
Page 4
20
PURCHASE WARRANT
SUBSCRIPTION FORM
SUBSCRIPTION TO BE EXECUTED UPON EXERCISE OF WARRANT
c/o ChaseMellon Shareholder Services, LLC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _________________ Custodian________________
TEN ENT -- as tenants by the entireties (Cust.) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as tenants in common ______________________________ (State)
COM PROP -- as community property UNIF TRF MIN ACT -- _________________ Custodian (until age ____)
(Cust.)
_________ under Uniform Gifts to Minors Act
(Minor)
to Minors Act _____________________ (State)
Additional abbreviations may also be used, thought not in the above list.
The undersigned holder of the within Warrant hereby (1) irrevocably elects to
exercise the right to purchase represented by the within Warrant for, and to
purchase hereunder, shares of Common Stock which the undersigned is entitled to
purchase thereunder, (2) tenders $_____________ as full payment of the Exercise
Price called for by the Warrant Agreement, and (3) directs that the Certificates
for such shares be issued as set forth below.
Name in which shares are to be issued: _____________________________________
(if other than to the undersigned) _____________________________________
Address _____________________________________
If the number of shares shall not be all the shares purchasable thereunder, a
new Warrant Certificate for the balance of the shares purchasable under the
within Warrant shall be delivered to the undersigned holder at the address set
forth below:
DATED: Signature of Holder:
------------------------ ---------------------------
Social Security or other identifying Signature Guaranteed:
number:_________________________ Name (please print):
---------------------------
Address:
----------------------------------------
----------------------------------------
Purchase Warrant Subscription Form
Page 1
21
ASSIGNMENT
NOTICE
The signature to the foregoing Subscription must correspond to the
name(s) of the registered holder(s) of the within Warrant in every particular,
without alteration or any change whatsoever.
--------------------------------------------------------------------------------
FORM OF ASSIGNMENT TO BE EXECUTED UPON TRANSFER OF WARRANT
FOR VALUE RECEIVED _________________hereby sells, assigns and transfer to
________________________________Social Security or other identifying number
__________________the within Warrant, together with all rights, title and
interest herein, and does hereby irrevocably constitute and appoint
___________________________________ attorney to transfer such Warrant on the
warrant register of the Corporation with full power of substitution.
Dated: Signature of Transferor:
--------------- ------------------------------
Address of Transferee: Signature Guaranteed:
--------------------------------
---------------------
---------------------
NOTICE
The signature to the foregoing Assignment must correspond to the name(s) as
written upon the face of the within Warrant in every particular, without
alteration or any change whatsoever, and should be guaranteed by a commercial
bank or trust Corporation having an office or correspondent in the United States
or by a member firm of a registered national securities exchange or the National
Association of Securities Dealers, Inc.
--------------------------------------------------------------------------------
Assignment
Page 1
