EXHIBIT 10.16
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. NEITHER THE WARRANT NOR SUCH SECURITIES CAN BE OFFERED OR SOLD EXCEPT
PURSUANT TO A REGISTRATION STATEMENT UNDER THE ACT, OR AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT.
CAFE LA FRANCE, INC.
NONTRANSFERABLE COMMON STOCK PURCHASE WARRANT
No. (Number) (Units) Units
THIS NONTRANSFERABLE COMMON STOCK PURCHASE WARRANT, for value received,
entitles or assigns (the "Holder"), to subscribe for and purchase from CAFE LA
FRANCE, INC., a Delaware corporation (the "Company"), upon the terms and
conditions set forth herein, for a period of 60 days (the "Exercise Period")
beginning 13 months after the successful completion of an initial public
offering of common stock by the Company, that number of shares of the Company's
common stock, par value $.01 per share ("Common Stock") determined by dividing
$18,750 by the price per share of Common Stock offered to the public in said
initial public offering by the Company, multiplied by the number of Units
specified above (the "Shares"). This Warrant will be exercisable at a price per
share equal to $.01 (the "Exercise Price").
1. Exercise of Warrant. This Warrant may be exercised during the
Exercise Period as to the whole or any lesser number of Shares, by the surrender
of this Warrant (together with the duly executed Election in the form attached
hereto as Exhibit A) to the Company at its office or at such other place as is
designated in writing by the Company, together with a check payable to the order
of the Company in an amount equal to the Exercise Price multiplied by the number
of Shares for which this Warrant is being exercised.
2. Record Holder of Warrants. As soon as practicable after exercise of
this Warrant, the Company shall issue and deliver to the Holder a certificate or
certificates for the Shares registered in the name of the Holder or its
designee. Upon exercise of this Warrant, the Holder shall be deemed to be the
holder of record of the Shares notwithstanding that the transfer books of the
Company shall then be closed or certificates representing such Shares shall not
then have been actually delivered to the Holder. 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 right of the
Holder to purchase the balance of the Shares (or portions thereof) subject to
purchase hereunder, provided the Exercise Period has not expired.
3. Warrant Register. Any Warrant issued upon the transfer or exercise
in part of this Warrant (together with this Warrant, the "Warrants") shall be
numbered and shall be registered in a warrant register as they are issued. The
Company shall be entitled to treat the registered holder of any Warrant upon the
warrant register as the owner in fact thereof for all purposes and shall not be
bound to recognize any equitable or other claim to or interest in such Warrant
on the part of any other person, and shall not be liable for any registration or
transfer of Warrants which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with the knowledge of such facts that its
participation therein amount to bad faith. The Warrants shall be
nontransferable.
4. Reservation of Common Stock. The Company shall at all times reserve
and keep available out of its authorized and unissued Common Stock, solely for
the purpose of providing for the exercise of this Warrant, such number of shares
of Common Stock as shall, from time to time, be sufficient therefor. The Company
covenants that all shares of Common Stock issuable upon exercise of this Warrant
when paid for in accordance with the respective terms hereof, shall be validly
issued, fully paid and nonassessable by the Company.
5. Merger, Consolidation or Reclassification of Securities:
Adjustments. (a) In case of any consolidation with or merger of the Company with
or into another corporation (other than a merger or consolidation in which the
Company is the surviving or continuing corporation), or in case of any sale,
lease or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, such successor, leasing or purchasing
corporation, as the case may be, shall (i) execute with the Holder an agreement
providing that the Holder shall have the right thereafter to receive upon
exercise of this Warrant solely the kind and amount of shares of stock and other
securities, property, cash or any combination thereof receivable upon such
consolidation, merger, sale, lease or conveyance by a Holder of the number of
shares of Common Stock for which this Warrant might have been exercised
immediately prior to such consolidation, merger, sale, lease or conveyance, and
(ii) make effective provision in its certificate of incorporation or otherwise,
if necessary, in order to effect such agreement.
(b) In case of any reclassification or change of the Shares issuable
upon exercise of this Warrant (other than a change in par value or from par
value to no par value) or in case of a subdivision or combination, including any
change in the shares into two or more classes or series of shares, or in case of
any consolidation or merger of another corporation into the Company in which the
Company is the continuing corporation and in which there is a reclassification
or change (including a change to the right to receive cash or other property) of
the Shares (other than a change in par value, or from par value to no par value)
the Holder shall have the right thereafter to receive upon exercise of this
Warrant solely the kind and amount of shares of stock and other securities,
property, cash or any combination thereof receivable upon such
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reclassification, change, consolidation or merger by a holder of the number of
Shares for which this Warrant might have been exercised immediately prior to
such reclassification, change, consolidation or merger.
(c) Upon the occurrence of any event described in paragraphs 5(a) or
(b) (an "Event"), the number of Shares acquirable thereafter upon exercise of
this Warrant shall be adjusted so that the Holder hereof is entitled to receive
upon exercise of this Warrant the number of Shares which the Holder would have
owned or would have been entitled to receive after the happening of the Event
had this Warrant been exercised immediately prior to the happening of such
Event; and the Exercise Price per share shall be correspondingly adjusted.
(d) Whenever there shall be an adjustment as provided in paragraph
5(c), the Company shall promptly cause written notice thereof to be sent by
registered mail, postage prepaid, to the Holder, at its principal office, which
notice shall be accompanied by an officer's certificate setting forth the number
of Shares issuable after such adjustment and setting forth a brief statement of
the facts requiring such adjustment and the computation thereof, which officer's
certificate shall be conclusive evidence of the correctness of any such
adjustment absent manifest error.
(e) All calculations under this paragraph 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(f) The Company shall not be required to issue fractions of shares of
Common Stock or other capital stock of the Company upon the exercise of
Warrants. If any fraction of a share would be issuable upon the exercise of any
Warrant (or specified portions thereof), the Company shall purchase such
fraction for an amount in cash equal to the same fraction of the current market
price of such share of Common Stock on the date of exercise of the Warrant,
based on the average of the daily closing prices or sales prices of the Common
Stock for the 30 consecutive trading days immediately preceding such date.
(h) The above provisions of this paragraph 5 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases or conveyances similar to
those described in paragraphs 5(a) and (b).
6. Notice of Certain Proposed Actions. In case at any time the Company
shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
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(b) to issue any rights, warrants or other securities to all holders of
Common Stock entitling them to purchase any additional shares of Common Stock or
any other rights, warrants or other securities; or
(c) to effect any reclassification or change of outstanding shares of
Common Stock, or any consolidation, merger, sale, lease or conveyance of
property described in paragraph 5; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company;
(e) then, and in any one or more of such cases, the Company shall give
written notice thereof, by registered mail, postage prepaid, to the Holder at
the Holder's address as it shall appear in the warrant register, mailed at least
15 days prior to the earlier to occur of (i) the date as of which the holders of
record of shares of Common Stock to be entitled to receive any such dividend,
distribution, rights, warrants or other securities are to be determined, or (ii)
the date on which any such reclassification, change of outstanding shares of
Common Stock, consolidation, merger, sale, lease, conveyance of property,
liquidation, dissolution, or winding-up is expected to become effective, and the
date as of which it is expected that holders of record of shares of Common
Stock, as the case may be, shall be entitled to exchange their shares or
warrants for securities or other property, if any, deliverable upon such
reclassification, change of outstanding shares, consolidation, merger, sale,
lease, conveyance of property, liquidation, dissolution, or winding-up.
7. Exercise of Warrants: Issuance of Securities. The issuance of any
shares or warrants or other securities upon the exercise of this Warrant, and
the delivery of Certificates or other instruments representing such shares,
warrants or other securities, shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any Certificate in a name other than
that of the Holder and the Company shall not be required to issue or deliver any
such Certificate unless and until the person or persons requesting the issue
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
8. Registration Rights of Holder.
(a) As soon as practicable following the successful completion of an
initial public offering of Common Stock by the Company but in no event later
than 9 months thereafter, the Company shall prepare and file with the Securities
and Exchange Commission (the "Commission") a registration statement sufficient
to permit the public offering and sale of the shares acquirable upon exercise of
this Warrant (the "Restricted Shares") through the facilities of all appropriate
securities exchanges and the over-the-counter market, and will use its best
efforts through its officers, directors, auditors and counsel to cause such
registration statement to become effective as promptly as
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practicable. Such registration statement shall be prepared at the Company's
expense (other than fees and disbursements of counsel for the Holder and
underwriting discounts and expenses, if any, payable in respect of the
Restricted Shares sold by any such Holders).
(b) The Company shall use its best efforts to cause the Restricted
Shares so registered to be registered or qualified for sale under the securities
or "blue sky" laws of such jurisdictions as such Holders may reasonably request;
provided, however, that the Company shall not be required to qualify to do
business in any state by reason of this paragraph 8(b) in which it is not
otherwise required to qualify to do business.
(c) The Company shall keep effective the registration or qualification
contemplated by this paragraph 8 and shall from time to time amend or supplement
each applicable registration statement, preliminary prospectus, final
prospectus, application, document and communication for such period of time as
shall be required to permit the Holders to complete the offer and sale of the
Restricted Shares covered thereby. The Company shall in no event be required to
keep any such registration or qualification in effect for a period in excess of
nine months from the date on which the Holders are first free to sell such
Restricted Shares; provided, however, that if the Company is required to keep
any such registration or qualification in effect with respect to securities
other than the Restricted Shares beyond such period, the Company shall keep such
registration or qualification in effect as it relates to the Restricted Shares
for so long as such registration or qualification remains or is required to
remain in effect in respect of such other securities.
(d) In connection with a registration pursuant to the provisions of
this paragraph 8, the Company shall furnish to each holder of any Restricted
Shares included therein such number of copies of the registration statement and
of each amendment and supplement thereto (in each case, including all exhibits),
such reasonable number of copies of each prospectus contained in such
registration statement and each supplement or amendment thereto (including each
preliminary prospectus), all of which shall conform to the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
thereunder, and such other documents, as the Holders may reasonably request in
order to facilitate the disposition of the Restricted Shares included in such
registration.
(e) In the event of a registration pursuant to the provisions of this
paragraph 8, the Company shall furnish to each holder of any Restricted Shares
so registered with an opinion of its counsel (reasonably acceptable to the
Holder) to the effect that (i) the registration statement has become effective
under the Act and no order suspending the effectiveness of the registration
statement, preventing or suspending the use of the registration statement, any
preliminary prospectus, any final prospectus, or any amendment or supplement
thereto has been issued, nor has the Commission or any securities or blue sky
authority of any jurisdiction instituted or threatened to institute any
proceedings with respect to such an order, (ii) the registration statement and
each
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prospectus forming a part thereof (including each preliminary prospectus) and
any amendment or supplement thereto, complies as to form with the Act and the
rules and regulations thereunder, and (iii) such counsel has no knowledge or
reason to know of any material misstatement or omission in such registration
statement or any prospectus, as amended or supplemented. Such opinion shall also
state the jurisdictions in which the Restricted Shares have been registered or
qualified for sale pursuant to the provisions of paragraph 8(b).
(f) The Company agrees that until all the Restricted Shares have been
sold under a registration statement or pursuant to Rule 144 under the Act, it
shall keep current in filing all reports, statements and other materials
required to be filed with the Commission to permit holders of the Restricted
Shares to sell such securities under Rule 144.
(g) Notwithstanding anything to the contrary herein, the Company shall
not be required to register the Restricted Shares if counsel for the Company
delivers an opinion to the Holders that the proposed sale of Restricted Shares
may be effected in its entirety within any 90 day period without registration
and without any further holding period pursuant to Rule 144 under the Securities
Act of 1933, as amended.
9. Restrictive Legend. The securities issued upon exercise of the
Warrants shall be subject to a stop transfer order and the certificate or
certificates evidencing any such securities shall bear the following legend:
"THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND SUCH
SHARES (OR OTHER SECURITIES) CANNOT BE OFFERED OR SOLD EXCEPT PURSUANT TO A
REGISTRATION STATEMENT UNDER SUCH ACT, OR AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT."
10. Replacement of Certificates. Upon receipt of evidence satisfactory
to the Company of the loss, theft, destruction or mutilation of any Warrant (and
upon surrender of any Warrant if mutilated), and upon reimbursement of the
Company's reasonable incidental expenses, the Company shall execute and deliver
to the Holder thereof a new Warrant of like date, tenor and denomination.
11. Rights of Holder. The Holder of any Warrant shall not have, solely
on account of such status, any rights of a stockholder of the Company, either at
law or in equity, or to any notice of meetings of stockholders or of any other
proceedings of the Company, except as provided in this Warrant.
12. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, nor mailed by registered or Certified mail, return receipt requested:
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(a) If to the registered holder of this Warrant, to the
address of such holder as shown on the books of the Company, or
(b) If to the Company, to Secretary, Cafe La France, Inc., 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
13. Governing Law. This Warrant shall be construed in accordance with
the laws of the State of Delaware, without giving effect to conflict of laws.
Dated: November 15, 1996
CAFE LA FRANCE, INC., a Delaware
Corporation
By_______________________________
Title:_____________________________
(Seal)
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Secretary
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EXHIBIT A
Election Form
The undersigned holder of the enclosed warrant hereby elects to
exercise said warrant to purchase ____ shares of common stock of Cafe La France,
Inc. pursuant to the terms and conditions set forth in the enclosed warrants.
Payment in the amount of $_________________ representing the exercise price is
attached herewith.
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Warrant Holder
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