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EXHIBIT 4.1
AMENDMENT NO. 3 TO WARRANT AGREEMENT
THIS AMENDMENT NO. 3 TO WARRANT AGREEMENT (the "Agreement") is dated
April 15, 1997, by and between Watermarc Food Management Co., formerly known
as Xxxxx Blues Food Corporation, a Texas corporation with its principal offices
in Houston, Texas (the "Company"), and North American Transfer Co., as warrant
agent (the "Warrant Agent").
WITNESSETH:
WHEREAS, the parties hereto previously entered into that certain Warrant
Agreement dated May 15, 1992 (the "Original Agreement"), a copy of which is
attached hereto as Exhibit A, for the purpose of setting forth the terms and
conditions of the issuance, registration, transfer, exchange and redemption of
the Company's Series A Redeemable Common Stock Purchase Warrants (the "Series A
Warrants");
WHEREAS, all capitalized terms used herein shall have the same meaning
assigned them in the Original Agreement unless otherwise set forth herein.
Furthermore, this Agreement confirms and ratifies all terms and conditions set
forth in the Original Agreement except as expressly modified herein; and
WHEREAS, the parties hereto desire to amend the Original Agreement for
the purpose of extending the Warrant Expiration Date from May 15, 1997 to May
15, 1998;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Amendment and Restatement of Section 1(i) of the Original Agreement.
Section 1(i) of the Original Agreement is hereby amended and restated in its
entirety as follows for the purpose of extending the Warrant Expiration Date
from May 15, 1997 to May 16, 1998:
1(i) "Warrant Expiration Date" shall mean 5:00 p.m. (New York time)
on May 15, 1998, with respect to the Series A Warrants, or the
redemption date as defined in Section 8, whichever is earlier;
provided that if such date shall in the State of New York be a
holiday or a day on which banks are authorized to close, then
5:00 p.m. (New York time) on the next following day which in
the State of New York is not a holiday or a day on which banks
are authorized to close. The Company may, at its election,
extend the Warrant Expiration Date with respect to the
Series A Warrants.
2. Current Prospectus. The Company agrees to monitor the market
price of its common stock, par value $.05 per share (the "Common Stock") and
will undertake to file a posteffective amendment to its registration statement
dated July 26, 1995, Registration No. 33-93450
AMENDMENT NO. 3 TO WARRANT AGREEMENT - Page 1
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(the "Registration Statement"), at such time as the exercise of the Series A
Warrants appears more likely. Furthermore, the Company will not, without the
opinion of counsel to the Company, issue any of its Common Stock pursuant to
the exercise of any of the Series A Warrants unless there is a post-effective
amendment to the Registration Statement in effect containing a current
prospectus meeting the requirements of Section 10(a)(3) of the Securities Act
of 1933, as amended.
3. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and the Warrant Agent and their respective successors
and assigns, and the holders from time to time to Warrant Certificates.
Nothing in this Agreement is intended or shall be construed to confer upon
any other person any right, remedy or claim, in equity or at law, or to impose
upon any other person any duty, liability or obligation.
(b) This Agreement shall be governed and construed in
accordance with the laws of the State of New York; provided, however, that the
Series A Warrants shall be governed by and construed in accordance with the laws
of the State of Texas, without reference to principles of conflict of laws.
(c) If any term of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity of all other terms hereof shall in no
way be effected thereby.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 3
to Warrant Agreement as of the date first above set forth.
COMPANY:
WATERMARC FOOD MANAGEMENT CO.
By: XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: President and Chief
Operating Officer
WARRANT AGENT:
NORTH AMERICAN TRANSFER CO.
By: XXXXXXX XXXXXXXXX
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Name: Xxxxxxx Xxxxxxxxx
Title: Principal
