EXHIBIT 99.5
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR
QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT IN COMPLIANCE
WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND THE REGISTRATION OR
QUALIFICATION REQUIREMENTS OF SUCH STATE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION.
WARRANT NO. LL-1A Dated November 24, 1999,
Amended and Restated as
of October 29, 2002
OVERHILL FARMS, INC.
AMENDED AND RESTATED
WARRANT TO PURCHASE 1,994,141 SHARES OF COMMON STOCK
FOR VALUE RECEIVED, OVERHILL FARMS, INC., a Nevada corporation (the
"Company"), hereby certifies that XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P., a
California limited partnership ("LLCP"), or its assigns (collectively, the
"Holder"), is entitled to purchase, on the terms and subject to the conditions
contained herein, 1,994,141 shares (as such number of shares may be adjusted
from time to time, the "Warrant Shares") of the Company's common stock, par
value $0.01 per share ("Common Stock"), at an exercise price of $0.0000008 per
Warrant Share (the "Warrant Purchase Price") at any time and from time to time
during the Exercise Period (as such term is defined below). The number of
Warrant Shares issuable upon exercise of this Warrant to Purchase 1,994,141
Shares of Common Stock (this "Warrant") and the Warrant Purchase Price shall be
subject to adjustment from time to time as provided herein.
This Warrant is the "November 0000 Xxxxxxx" referred to in, and is being
issued by the Company in connection with the execution and delivery of, that
certain Amended and Restated Securities Purchase Agreement dated of even date
herewith (as amended from time to time, the "Securities Purchase Agreement") by
and among the Company, the entities from time to time parties thereto as
Guarantors and the initial Holder of this Warrant, amends and restates the terms
and other provisions of that certain Warrant to Purchase 166.04 Shares of Common
Stock dated November 24, 1999 (the "Original Warrant"), and supersedes the
Original Warrant insofar as the two are inconsistent. This Warrant is being
amended and restated in connection with the distribution by Overhill Corporation
(formerly known as Polyphase Corporation and to be known from and after the
effective date of the Spin-Off as TreeCon Resources, Inc.), a Nevada
corporation, a Nevada corporation ("TreeCon"), to its shareholders of all of the
outstanding shares of Common Stock owned or held by TreeCon.
This Warrant is subject to the following terms and conditions:
1. DEFINITIONS. Unless otherwise indicated in this Warrant, capitalized
terms used and not otherwise defined in this Warrant have the meanings ascribed
to them in the Securities Purchase Agreement. In addition, the following
capitalized terms have the following meanings:
"Board of Directors" means the Board of Directors of the Company.
"Common Stock" has the meaning set forth in the preamble.
"Company" has the meaning set forth in the preamble.
"Convertible Securities" means, when used in this Agreement, any securities
or other obligations issued or issuable by the Company or any other Person that
are exercisable or exchangeable for, or convertible into, any Capital Stock of
the Company.
"Current Market Price" per share of Common Stock means, as of any specified
date on which the Common Stock is publicly traded, the average of the daily
market prices of the Common Stock over the twenty (20) consecutive trading days
immediately preceding (and not including) such date. The `daily market price'
for each such trading day shall be (i) the closing sales price on such day on
the principal securities exchange on which the Common Stock is then listed or
admitted to trading or on Nasdaq, as applicable, (ii) if no sale takes place on
such day on any such securities exchange or system, the average of the closing
bid and asked prices, regular way, on such day for the Common Stock as
officially quoted on any such securities exchange or system, (iii) if the Common
Stock is not then listed or admitted to trading on any securities exchange or
system, the last reported sale price, regular way, on such day for the Common
Stock, or if no sale takes place on such day, the average of the closing bid and
asked prices for the Common Stock on such day, as reported by Nasdaq or the
National Quotation Bureau, and (iv) if the Common Stock is not then listed or
admitted to trading on any securities exchange and if no such reported sale
price or bid and asked prices are available, the average of the reported high
bid and low asked prices on such day, as reported by a reputable quotation
service, or a newspaper of general circulation in the City of Los Angeles, State
of California, customarily published on each Business Day. If the daily market
price cannot be determined for the twenty (20) consecutive trading days
immediately preceding such date in the manner specified in the foregoing
sentence, then the Common Stock shall not be deemed to be publicly traded as of
such date.
"Designated Office" means, at any time, the principal executive offices of
the Company at such time.
"Dilutive Issuance" has the meaning set forth in Section 4.8(g).
"Dispute Notice" has the meaning set forth in the definition of Fair Market
Value.
"DOJ" has the meaning set forth in Section 2.3.
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"Equity Repurchase Option Agreement" means that certain Equity Repurchase
Option Agreement dated as of September 11, 2002, between the Company and LLCP,
as amended from time to time.
"Initial Issue Date" means November 24, 1999, the initial date of issuance
of this Warrant.
"Excluded Securities" means, collectively, (i) any shares of Common Stock
or Option Rights issued in any of the transactions described in Sections 4.1,
4.2, 4.3 or 4.5, (ii) shares of Common Stock issued upon exercise, exchange or
conversion of (A) any Option Rights outstanding on the Initial Issue Date or (B)
any shares of Common Stock or Convertible Securities issued after the Initial
Issue Date upon exercise or conversion of an Option Right for which an
adjustment has been made pursuant to Section 4.4 or for which no adjustment was
required to be made under Section 4.4, (iii) any Warrant Shares, (iv) any
Warrant Shares (as such term is defined in the Fifth Amendment Warrant), (v)
shares of Common Stock issued upon conversion of shares of Series A Preferred
Stock beneficially owned by the Holder and (vi) shares of Common Stock issued
pursuant to a bona fide public offering pursuant to a registration statement
declared effective by the Commission under the Securities Act.
"Exercise Notice" has the meaning set forth in Section 2.1.
"Exercise Period" means the period commencing on the Initial Issue Date and
ending on (and including) the Expiration Date.
"Expiration Date" means October 31, 2009.
"Fair Market Value" per Warrant Share (or share of Common Stock) means, as
of any specified date:
(i) if the Common Stock is publicly traded on such date, the
greater of (x) the Current Market Price per share as of such date and (y) a
price per share equal to the Formula-Based Repurchase Price; provided, however,
that, for purposes of calculating the Formula-Based Repurchase Price, the
"Measurement Date" shall be the last day of the calendar month immediately
preceding the calendar month in which the Exercise Notice is delivered; or
(ii) if the Common Stock is not publicly traded (or deemed not to
be publicly traded) on such date, a price per share equal to the Formula-Based
Repurchase Price; provided, however, that, for purposes of calculating the
Formula-Based Repurchase Price, the "Measurement Date" shall be the last day of
the calendar month immediately preceding the calendar month in which the
Exercise Notice is delivered.
Whenever the Company is required or permitted to make a determination
of the Fair Market Value of a Warrant Share (or share of Common Stock), the
Holder may challenge or otherwise dispute such determination. If the Holder
wishes to challenge or otherwise dispute such determination, it shall furnish a
written notice to the Company to such effect (a "Dispute Notice"). If the Holder
delivers a Dispute Notice to the Company and, thereafter, the Company and the
Holder cannot resolve the dispute within ten (10) days
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after delivery of the Dispute Notice, Fair Market Value shall be determined by
an independent certified public accounting firm of recognized national standing
selected by the mutual written agreement of the Company and the Holder;
provided, however, that if the Company and the Holder are unable to mutually
select such accounting firm within ten (10) days after the date upon which the
right or obligation to select an accounting firm arises, each of the Company and
the Holder shall, within three (3) Business Days thereafter, select one
accounting firm, and the two (2) selected firms shall, within three (3) Business
Days after their selection, select a third accounting firm which shall make the
relevant determination (which determination shall be final and binding upon the
parties). Within thirty (30) days after its selection, the third accounting firm
shall conduct a review of the books and records of the Company and its
Subsidiaries for purposes of determining the Fair Market Value and shall deliver
to the Company and the Holder in writing its determination thereof, prepared in
reasonable detail, and, if requested by either party, the workpapers prepared in
completing its review and determination thereof. All fees, costs and expenses
incurred by the Company and the Holder in connection with any such
determination, and any challenge or dispute thereof, shall be paid by the
Company; provided, however, that the Company and the Holder shall share equally
all such fees, costs and expenses if, after the Holder delivers a Dispute Notice
to the Company, the difference between Fair Market Value as determined pursuant
to the procedures set forth in this paragraph and Fair Market Value as
determined by the Board of Directors is less than five percent (5.0%) of Fair
Market Value as determined by the Board of Directors.
"Formula-Based Repurchase Price" has the meaning set forth in the Equity
Repurchase Option Agreement.
"FTC" has the meaning set forth in Section 2.3.
"Holder" has the meaning set forth in the preamble.
"HSR Act" has the meaning set forth in Section 2.3.
"Option Rights" means, when used in this Warrant, any Convertible
Securities, or any warrants, options or other rights to subscribe for or
purchase, or obligations to issue, any Capital Stock of the Company, including
any options or similar rights issued or issuable under any employee stock option
plan, pension plan or other employee benefit plan of the Company.
"Other Property" has the meaning set forth in Section 4.5.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder, all as the same shall
be in effect at the time.
"Securities Purchase Agreement" has the meaning set forth in the preamble
of this Warrant.
"Warrant" means this Warrant, any amendment of this Warrant, and any
warrants issued upon transfer, division or combination of, or in substitution
for, this Warrant or any other such warrant. All such Warrants shall at all
times be identical as to terms and
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conditions and date, except as to the number of Warrant Shares for which they
may be exercised.
"Warrant Purchase Price" has the meaning set forth in the preamble of this
Warrant (as adjusted from time to time in accordance with the terms of this
Warrant).
"Warrant Shares", when used in this Warrant, has the meaning set forth in
the preamble.
2. EXERCISE.
2.1 Exercise; Delivery of Certificates. Subject to the
provisions of Section 2.3, this Warrant may be exercised at the option of the
Holder, in whole or in part, at any time and from time to time during the
Exercise Period, by (a) delivering to the Company at the Designated Office (i) a
Notice of Exercise, in substantially the form attached as Exhibit A (the
"Exercise Notice"), duly completed and signed by the Holder, and (ii) this
Warrant, and (b) paying the Warrant Purchase Price pursuant to Section 2.2 for
the number of Warrant Shares being purchased. The Warrant Shares being purchased
under this Warrant shall be deemed to have been issued to the Holder, as the
record owner of such Warrant Shares, as of the close of business on the date on
which payment therefor is made by the Holder pursuant to Section 2.2.
Certificates representing the Warrant Shares so purchased shall be delivered to
the Holder within three (3) Business Days after this Warrant has been exercised
(or, if applicable, after the conditions set forth in Section 2.3 have been
satisfied); provided, however, that in the case of a purchase of less than all
of the Warrant Shares issuable upon exercise of this Warrant, the Company shall
cancel this Warrant and also, within three (3) Business Days after this Warrant
has been surrendered, execute and deliver to the Holder a new Warrant of like
tenor representing the number of unexercised Warrant Shares. Each certificate
representing the number of Warrant Shares issued or issuable upon exercise of
this Warrant shall be registered in the name of the Holder or, subject to
compliance with Applicable Law, such other name as shall be designated by the
Holder.
2.2 Payment of Warrant Price. Payment of the Warrant Purchase
Price may be made, at the option of the Holder, by (i) certified or official
bank check, (ii) cash or wire transfer, (iii) if the Fair Market Value of one
Warrant Share is greater than the Exercise Price, by instructing the Company to
withhold and cancel a number of Warrant Shares then issuable upon exercise of
this Warrant with respect to which the excess of the Fair Market Value over the
Warrant Purchase Price for such canceled Warrant Shares is at least equal to the
Warrant Purchase Price for the Warrant Shares being purchased (the "cashless
exercise" procedures), (iv) surrendering to the Company shares of Common Stock
previously acquired by the Holder with a Fair Market Value equal to the Warrant
Purchase Price for the shares then being purchased or (v) any combination of any
of the foregoing. If the Holder elects to exercise this Warrant using the
"cashless exercise" procedures set forth in clause (iii) above, the Warrant
Shares being purchased thereby shall be deemed to have been acquired by the
Holder as of the date upon which the Exercise Notice is delivered to the
Designated Office.
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2.3 Antitrust Notification. If the Holder determines, in its
sole judgment upon the advice of counsel, that an exercise of this Warrant
pursuant to the terms hereof would be subject to the provisions of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), the Company shall, within seven (7) Business Days after receiving notice
from the Holder of the applicability of the HSR Act, file with the United States
Federal Trade Commission (the "FTC") and the United States Department of Justice
(the "DOJ") the notification and report form and any supplemental information
required to be filed by it pursuant to the HSR Act in connection with the
exercise of this Warrant. Any such notification and report form and supplemental
information will be in full compliance with the requirements of the HSR Act. The
Company will furnish to the Holder promptly (but in no event more than two (2)
Business Days) such information and assistance as the Holder may reasonably
request in connection with the preparation of any filing or submission required
to be filed by the Holder under the HSR Act. The Company shall respond promptly
after receiving any inquiries or requests for additional information from the
FTC or the DOJ (and in no event more than three (3) Business Days after receipt
of such inquiry or request). The Company shall keep the Holder apprised
periodically and at the Holder's request of the status of any communications
with, and any inquiries or requests for additional information from, the FTC or
the DOJ. The Company shall bear all filing or other fees required to be paid by
the Company and the Holder (or the "ultimate parent entity" of the Holder, if
any) under the HSR Act or any other Applicable Law in connection with such
filings and all costs and expenses (including attorneys' fees and expenses)
incurred by the Company and the Holder in connection with the preparation of
such filings and responses to inquiries or requests. In the event that this
Section 2.3 is applicable to any exercise of this Warrant, the purchase by the
Holder of the Warrant Shares subject to the Exercise Notice, and the payment by
the Holder of the Warrant Purchase Price, shall be subject to the expiration or
earlier termination of the waiting period under the HSR Act.
2.4 Fractional Shares. No fractional shares shall be issued upon
the exercise of this Warrant as a consequence of any adjustment pursuant hereto.
All Warrant Shares (including fractional shares) issuable upon exercise of this
Warrant may be aggregated for purposes of determining whether the exercise would
result in the issuance of any fractional share. If, after aggregation, the
exercise would result in the issuance of a fractional share, the Company shall,
in lieu of issuance of any fractional share, pay to the Holder otherwise
entitled to such fraction a sum in cash equal to the product resulting from
multiplying the then current Fair Market Value per Warrant Share by such
fraction.
3. [Intentionally Omitted.]
4. ADJUSTMENTS TO THE NUMBER OF WARRANT SHARES AND TO THE WARRANT
PURCHASE PRICE. The number of Warrant Shares issuable upon exercise of this
Warrant and the Warrant Purchase Price shall be subject to adjustment from time
to time as set forth in this Section 4.
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4.1 Stock Dividends, Subdivisions and Combinations. If at any
time the Company:
(a) pays a dividend or other distribution on its Common
Stock, without consideration, in shares of Common Stock or shares of any
other class or series of Capital Stock,
(b) subdivides (by stock split, reclassification or
otherwise) its outstanding shares of Common Stock into a larger number of
shares of Common Stock, or
(c) combines (by reverse stock split or otherwise) its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock,
then the number of Warrant Shares purchasable upon exercise of this Warrant
immediately after the record date for such dividend or distribution or the
effective date of such subdivision or combination shall be adjusted so that the
Holder shall thereafter be entitled to receive upon exercise of this Warrant the
kind and number of shares of Common Stock that the Holder would have owned or
have been entitled to receive immediately after such record date or effective
date had this Warrant been exercised immediately prior to such record date or
effective date. Any adjustment made pursuant to this Section 4.1 shall become
effective immediately after the effective date of such event, but be retroactive
to the record date, if any, for such event.
Upon any adjustment of the number of Warrant Shares
purchasable upon the exercise of this Warrant as herein provided, the Warrant
Purchase Price per share shall be adjusted by multiplying the Warrant Purchase
Price immediately prior to such adjustment by a fraction, the numerator of which
shall be the number of Warrant Shares purchasable upon the exercise of this
Warrant immediately prior to such adjustment and the denominator of which shall
be the number of Warrant Shares so purchasable immediately thereafter.
4.2 Issuance of Option Rights. If at any time the Company issues
or distributes (without payment of any consideration) to all holders of its
Common Stock any Option Rights, then the Company shall also issue or distribute
such Option Rights to the Holder as if this Warrant had been exercised
immediately prior to the record date for such issuance.
4.3 Distribution of Assets or Securities. If at any time the
Company makes a distribution to its stockholders (other than in connection with
the liquidation, dissolution or winding up of the Company covered by Section
4.6) of any assets or securities other than those referred to in Sections 4.1,
4.2 or 4.5, the Warrant Purchase Price shall be adjusted and shall be equal to
the Warrant Purchase Price in effect immediately prior to the close of business
on the date fixed for the determination of stockholders entitled to receive such
distribution multiplied by a fraction (which shall not be less than zero), the
numerator of which shall be the Fair Market Value per share of Common Stock on
the date fixed for such determination, less the then fair market value of the
portion of the assets, or the fair market value of the portion of the
securities, as the case may be, so distributed applicable to
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one share of Common Stock, and the denominator of which shall be the Fair Market
Value per share of Common Stock. Such adjustment to the Warrant Purchase Price
shall become effective immediately prior to the opening of business on the day
immediately following the date fixed for the determination of stockholders
entitled to receive such distribution. Upon any adjustment in the Warrant
Purchase Price as provided in this Section 4.3, the number of shares of Common
Stock issuable upon the exercise of this Warrant shall also be adjusted and
shall be equal to the number of Warrant Shares issuable upon exercise of this
Warrant immediately prior to such adjustment multiplied by a fraction, the
numerator of which is the Warrant Purchase Price in effect immediately prior to
such adjustment and the denominator of which is the Warrant Purchase Price as so
adjusted.
4.4 Issuance of Equity Securities at Less Than Fair Market
Value. If at any time the Company sells or issues any shares of Common Stock or
Option Rights (excluding the Excluded Securities) at a price per share of Common
Stock (determined in the case of Option Rights by dividing (x) the total amount
receivable by the Company in consideration of the sale and issuance of such
Option Rights, plus the total consideration payable to the Company upon
exercise, conversion or exchange thereof, by (y) the maximum number of shares of
Common Stock issuable upon conversion, exercise or exchange of such Option
Rights), that is lower than the Fair Market Value per share of Common Stock in
effect immediately prior to such sale and issuance, then the Warrant Purchase
Price shall be adjusted (calculated to the nearest $.001) so that it shall equal
the price determined by multiplying the Warrant Purchase Price in effect
immediately prior thereto by a fraction, the numerator of which shall be an
amount equal to the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such sale and issuance plus (B) the number of shares of
Common Stock which the aggregate consideration received by the Company (or
deemed to be outstanding as provided below) for such sale or issuance would
purchase at such Fair Market Value per share, and the denominator of which shall
be (I) the total number of shares of Common Stock outstanding (or deemed to be
outstanding as provided below) immediately after such sale or issuance plus (ii)
the number of shares of Common Stock or Option Rights so issued. Adjustments
shall be made successively whenever such an issuance is made.
For the purposes of such adjustments, the shares of Common Stock which
the holder of any such Option Rights shall be entitled to subscribe for or
purchase shall be deemed to be issued and outstanding as of the date of the sale
and issuance of such Option Rights and the consideration received by the Company
therefor shall be deemed to be the consideration actually received by the
Company for such Option Rights, plus the consideration or premiums stated in
such Option Rights to be paid to acquire the shares of Common Stock covered
thereby.
Upon any adjustment in the Warrant Purchase Price as provided in the
penultimate paragraph above, the number of shares of Common Stock purchasable
upon the exercise of this Warrant shall also be adjusted and shall be that
number determined by multiplying the number of Warrant Shares issuable upon
exercise immediately prior to such adjustment by a fraction, the numerator of
which is the Warrant Purchase Price in effect immediately prior to such
adjustment and the denominator of which is the Warrant Purchase Price as so
adjusted.
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If at any time the Company sells and issues any shares of Common Stock
or Option Rights containing the right to subscribe for or purchase shares of
Common Stock for a consideration consisting, in whole or in part, of property
(other than cash or cash equivalents) or services, then in determining the
"price per share of Common Stock" and the "consideration received by the
Company" for purposes of the preceding paragraphs of this Section 4.4, the Board
of Directors shall determine, in good faith, the fair market value of such
property or services, subject to the Holder's rights under Section 4.8(e). There
shall be no adjustment of the Warrant Purchase Price in respect of the Common
Stock pursuant to this Section 4.4 if the amount of such adjustment is less than
$0.001 per share of Common Stock; provided, however, that any adjustments which
by reason of this provision are not required to be made shall be carried forward
and taken into account in any subsequent adjustment.
4.5 Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. If at any time the Company reorganizes its capital stock,
reclassifies its capital stock, consolidates, merges or combines with or into
another Person (where the Company is not the surviving corporation or where
there is any change whatsoever in, or distribution with respect to, the
outstanding Common Stock), or the Company sells, transfers or otherwise disposes
of all or substantially all of its property, assets or business to another
Person, other than in a transaction provided for in Sections 4.1, 4.2, 4.3, 4.4
or 4.6, and, pursuant to the terms of such reorganization, reclassification,
consolidation, merger, combination, sale, transfer or other disposition of
assets, (i) shares of common stock of the successor or acquiring Person or the
Company (if it is the surviving corporation) or (ii) any cash, shares of stock
or other securities or property of any nature whatsoever (including warrants or
other subscription or purchase rights) in addition to or in lieu of common stock
of the successor or acquiring Person or the Company ("Other Property") are to be
received by or distributed to the holders of Common Stock who are holders
immediately prior to such transaction, then the Holder shall have the right
thereafter to receive, upon exercise of this Warrant, the number of shares of
Common Stock, common stock of the successor or acquiring Person, and/or Other
Property which a holder of the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such event would have owned or
received immediately after and as a result of such event. In such event, the
aggregate Warrant Purchase Price otherwise payable for the Warrant Shares
issuable upon exercise of this Warrant shall be allocated among such securities
and Other Property in proportion to the respective fair market values of such
securities and Other Property as determined in good faith by the Board of
Directors, subject to the Holder's rights under Section 4.8(e).
In case of any such event, the successor or acquiring Person (if other
than the Company) shall expressly assume the due and punctual observance and
performance of each and every covenant and condition of this Warrant to be
performed and observed by the Company and all of the Company's obligations and
liabilities hereunder, subject to such modifications as the Holder may approve
in writing (and memorialized by resolutions of the Board of Directors) in order
to provide for adjustments of any shares of common stock of such successor or
acquiring Person for which this Warrant thus becomes exercisable, which
modifications shall be as equivalent as practicable to the adjustments provided
for in this Section 4.5. For purposes of this Section 4, "common stock of the
successor or acquiring Person" shall include stock or other equity securities,
or securities that are exercisable or
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exchangeable for or convertible into equity securities, of such corporation, or
other securities if such Person is not a corporation, of any class that is not
preferred as to dividends or assets over any other class of stock of such
corporation or Person and that is not subject to redemption and shall also
include any evidences of indebtedness, shares of stock or other securities that
are convertible into or exchangeable for any such stock, either immediately or
upon the arrival of a specified date or the happening of a specified event and
any warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 4.5 shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, sales, transfers
and other dispositions of assets.
4.6 Dissolution, Total Liquidation or Winding-Up. If at any time
there is a voluntary or involuntary dissolution, total liquidation or winding-up
of the Company, other than as contemplated by Section 4.5, then the Company
shall cause to be mailed (by registered or certified mail, return receipt
requested, postage prepaid) to the Holder at the Holder's address as shown on
the Warrant register, at the earliest practicable time (and, in any event, not
less than thirty (30) calendar days before any date set for definitive action)
written notice of the date on which such dissolution, liquidation or winding-up
shall take place, as the case may be. Such notice shall also specify the date as
of which the record holders of shares of Common Stock shall be entitled to
exchange their shares for securities, money or other property deliverable upon
such dissolution, liquidation or winding-up, as the case may be. On such date,
the Holder shall be entitled to receive upon surrender of this Warrant the cash
or other property, less the Warrant Purchase Price for this Warrant then in
effect, that the Holder would have been entitled to receive had this Warrant
been exercised immediately prior to such dissolution, liquidation or winding-up.
Upon receipt of the cash or other property, any and all rights of the Holder to
exercise this Warrant shall terminate in their entirety. If the cash or other
property distributable in the dissolution, liquidation or winding-up has a fair
market value which is less than the Warrant Purchase Price for this Warrant then
in effect, this Warrant shall terminate and be of no further force or effect
upon the dissolution, liquidation or winding-up.
4.7 Other Dilutive Events. If any event occurs as to which the
other provisions of this Section 4 are not strictly applicable but as to which
the failure to make any adjustment would not protect the purchase rights
represented by this Warrant in accordance with the intent and principles hereof,
then, in each such case, the Holder may appoint on behalf of the Company an
investment banking or accounting firm of recognized national standing which
shall give its opinion as to the adjustment, if any, on a basis consistent with
the intent and principles established herein, necessary to preserve the purchase
rights represented by this Warrant. Upon receipt of such opinion, the Company
will mail (by registered or certified mail, return receipt requested, postage
prepaid) a copy thereof to the Holder within three (3) Business Days and shall
make the adjustments described therein. The fees and expenses of such investment
banking or accounting firm shall be borne by the Company.
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4.8 Other Provisions Applicable to Adjustments Under this
Section. The following provisions shall be applicable to the adjustments
provided for pursuant to this Section 4:
(a) When Adjustments To Be Made. The adjustments required
by this Section 4 shall be made whenever and as often as any specified
event requiring such an adjustment shall occur. For the purpose of any such
adjustment, any specified event shall be deemed to have occurred at the
close of business on the date of its occurrence.
(b) Record Date. If the Company fixes a record date of the
holders of Common Stock for the purpose of entitling them to (i) receive a
dividend or other distribution payable in shares of Common Stock or in
shares of any other class or series of capital stock or securities
convertible into or exchangeable for Common Stock or shares of any other
class or series of capital stock or (ii) subscribe for or purchase shares
of Common Stock or such other shares or securities, then all references in
this Section 4 to the date of the issuance or sale of such shares of Common
Stock or such other shares or securities shall be deemed to be references
to that record date.
(c) When Adjustment Not Required. If the Company fixes a
record date of the holders of its Common Stock for the purpose of entitling
them to receive a dividend or distribution or subscription or purchase
rights to which the provisions of Section 4.1 or Section 4.2 would apply,
but shall, thereafter and before the distribution to stockholders, legally
abandon its plan to pay or deliver such dividend, distribution,
subscription or purchase rights, then thereafter no adjustment shall be
required by reason of the taking of such record and any such adjustment
previously made in respect thereof shall be rescinded and annulled.
(d) Notice of Adjustments. Whenever the number of shares of
Common Stock for which this Warrant is exercisable or the Warrant Purchase
Price shall be adjusted or recalculated pursuant to this Section 4, the
Company shall immediately prepare a certificate to be executed by the chief
financial officer of the Company setting forth, in reasonable detail, the
event requiring the adjustment or recalculation and the method by which
such adjustment or recalculation was calculated, specifying the number of
shares of Common Stock for which this Warrant is exercisable and (if such
adjustment was made pursuant to Section 4.5) describing the number and kind
of any other shares of stock or Other Property for which this Warrant is
exercisable, and any related change in the Warrant Purchase Price, after
giving effect to such adjustment, recalculation or change. The Company
shall mail (by registered or certified mail, return receipt requested,
postage prepaid) a signed copy of the certificate to be delivered to the
Holder within three (3) Business Days of the event which caused the
adjustment or recalculation. The Company shall keep at the Designated
Office copies of all such certificates and cause them to be available for
inspection at the Designated Office during normal business hours by the
Holder or any prospective transferee of this Warrant designated by the
Holder.
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(e) Challenge to Good Faith Determination. Whenever the
Board of Directors is required or permitted to make a determination of fair
market value under this Warrant, the Holder may challenge or dispute such
determination. If the Holder wishes to challenge or dispute any such fair
market value determination, it shall furnish written notice to the Company
of its intention to do so. If the Company and the Holder cannot resolve the
dispute between or among themselves, then such dispute shall be submitted
for final determination to an independent certified public accounting firm
pursuant to the procedures set forth in the last paragraph of the
definition of Fair Market Value. All fees, costs and expenses incurred by
the Company and the Holder in connection with any such determination, and
any challenge or dispute thereof, shall be paid by the Company; provided,
however, that the Company and the Holder shall share equally all such fees,
costs and expenses if, after the Holder delivers a Dispute Notice to the
Company, the difference between (a) the fair market value as determined
pursuant to the procedures set forth in the last paragraph of the
definition of Fair Market Value and (b) fair market value as determined by
the Board of Directors is less than five percent (5.0%) of the fair market
value determined by the Board of Directors.
(f) Independent Application. Except as otherwise provided
herein, all subsections of this Section 4 are intended to operate
independently of one another (but without duplication). If an event occurs
that requires the application of more than one subsection, all applicable
subsections shall be given independent effect without duplication.
(g) Other Anti-Dilution Provisions. To the extent that LLCP
or any of its Affiliates holds this Warrant, in whole or in part, at any
time at which the Company takes any action which would have resulted in an
adjustment to the Warrant Purchase Price, or the number of shares of Common
Stock issuable pursuant to this Warrant (in either event, a "Dilutive
Issuance"), then, to the extent that LLCP has exercised all or any portion
of this Warrant prior to such time, the Company shall immediately issue to
LLCP upon such Dilutive Issuance, without the payment of any further
consideration of any kind, such number of additional shares of Common Stock
as shall equal the difference between (i) the number of shares of Common
Stock issuable upon the exercise of this Warrant to the extent held
unexercised by LLCP at such time after giving effect to the adjustment
thereto resulting from such Dilutive Issuance and (ii) the number of shares
of Common Stock which would have been issuable upon exercise of this
Warrant after giving effect to such Dilutive Issuance if this Warrant had
not been exercised in any part.
5. MISCELLANEOUS.
5.1 Restrictive Legend. This Warrant and, unless registered
under the Securities Act, any Warrant Shares issued upon exercise hereof shall
bear a legend in substantially the following form (in addition to any legends
required under applicable state securities laws):
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE
- 12 -
SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER
ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND THE
REGISTRATION OR QUALIFICATION REQUIREMENTS OF SUCH STATE SECURITIES
LAWS OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND
QUALIFICATION.
The legend shall be appropriately modified upon issuance of
certificates for shares of Common Stock. Upon request of the holder of a Common
Stock certificate, the Company shall issue to that holder a new certificate free
of the foregoing legend, if, with such request, such holder provides the Company
with an opinion of counsel reasonably acceptable to the Company (provided that
Irell & Xxxxxxx LLP shall be deemed to be acceptable to the Company) to the
effect that the securities evidenced by such certificate may be sold without
restriction under Rule 144 (or any other rule permitting resales of securities
without restriction) promulgated under the Securities Act.
5.2 Holder Entitled to Benefits Under Other Agreements. The
Holder shall be entitled to certain rights, benefits and privileges with respect
to this Warrant and the Warrant Shares pursuant to the terms of the Securities
Purchase Agreement, the Registration Rights Agreement (it being understood that
the Warrant Shares constitute "Registrable Securities" thereunder), the Investor
Rights Agreement and certain other Investment Documents.
5.3 Other Covenants. Without limiting the generality of Section
5.2, the Company covenants and agrees that, as long as this Warrant remains
outstanding or any Warrant Shares are issuable upon exercise of this Warrant,
the Company will perform and comply with all of the following representations
and covenants for the express benefit of the Holder: (a) the Warrant Shares have
been duly authorized and shall, upon issuance in accordance with the terms of
this Warrant, be duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock; (b) each Holder shall, upon the exercise thereof in
accordance with the terms hereof, receive good and marketable title to the
Warrant Shares, free and clear of all voting and other trust arrangements to
which the Company is a party or by which it is bound, preemptive rights of any
stockholder or any liens, encumbrances, equities and claims whatsoever,
including all Taxes, Liens and other charges with respect to the issuance
thereof; (c) the Company shall reserve for issuance a sufficient number of
authorized but unissued shares of Common Stock, or other securities or property
for which this Warrant may then be exercisable, to permit this Warrant (or if
this Warrant has been divided, all outstanding Warrants) to be exercised in
full; (d) the Company shall deliver to the Holder the information and reports
described in Section 8.3 of the Securities Purchase Agreement as contemplated
therein; (e) the Company shall extend to the Holder the investment monitoring
and other rights set forth in the Investor Rights Agreement, provided that the
rights set forth in Section 1.1 of the Investor Rights Agreement with respect to
Board of Director representation may not be assigned by LLCP to any assignee of
this Warrant without the prior written consent of the Company; and (f) the
Company shall
- 13 -
provide each Holder with notice of all corporate actions in the same manner and
to the same extent as the shareholders of the Company.
5.4 Issue Tax. The issuance of shares of Common Stock upon the
exercise of this Warrant shall be made without charge to the Holder for any
issue tax in respect thereof.
5.5 Closing Of Books. The Company will at no time close its
transfer books against the transfer of this Warrant or of any Warrant Shares in
any manner which interferes with the timely exercise hereof.
5.6 No Voting Rights; Limitation Of Liability. Except as
expressly set forth in this Warrant, nothing contained in this Warrant shall be
construed as conferring upon the Holder (a) the right to vote or consent as a
stockholder in respect of meetings of stockholders for the election of directors
of the Company or any other matter, (b) the right to receive dividends, except
as set forth in Section 4, or (c) any other rights as a stockholder of the
Company. No provisions hereof, in the absence of affirmative action by the
Holder to purchase shares of Common Stock, and no mere enumeration herein of the
rights or privileges of the Holder, shall give rise to any liability of the
Holder for the Warrant Purchase Price or as a shareholder of the Company,
whether such liability is asserted by the Company or by its creditors.
5.7 Modification And Waiver. This Warrant and any of its
provisions may be amended, changed, waived, discharged or terminated only by an
instrument in writing signed by the party against which enforcement is sought.
5.8 Notices. All notices, requests, demands and other
communications which are required or may be given under this Warrant shall be in
writing and shall be deemed to have been duly given if transmitted by telecopier
with receipt acknowledged, or upon delivery, if delivered personally or by
recognized commercial courier with receipt acknowledged, or upon the expiration
of seventy-two (72) hours after mailing, if mailed by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
(a) If to the Holder, at:
x/x Xxxxxx Xxxxxxxxx Capital Partners, Inc.
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to any other Holder, at:
such Holder's address as shown on the books of the
Company.
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(c) If to the Company, at:
Overhill Farms, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or at such other address or addresses as the Holder or the Company, as the case
may be, may specify by written notice given in accordance with this Section 5.8.
5.9 Successors and Assigns. The Company may not assign any of
its rights, or delegate any of its obligations, under this Warrant without the
prior written consent of the Holder (which consent may be withheld for any
reason or no reason at all). Subject to the requirements of Applicable Law, the
Holder may assign this Warrant, in whole or in part, at any time or from time to
time, without the consent of the Company. Each assignment of this Warrant shall
be registered on the books of the Company to be maintained for such purpose upon
surrender of this Warrant at the Designated Office, together with appropriate
instruments of assignment, duly completed and executed. Upon such surrender, the
Company shall within three (3) Business Days, at its own expense, execute and
deliver a new Warrant or Warrants in the name of the assignee or assignees
specified in such assignment and in the denominations specified therein and this
Warrant shall promptly be canceled. If any portion of this Warrant is not being
assigned, the Company shall, at its own expense, within three (3) Business Days
issue to the Holder a new Warrant evidencing the portion not so assigned. If the
Holder assigns this Warrant to one or more Persons, any decisions that the
Holder is entitled to make at any time hereunder shall be made by the Holders
holding more than fifty percent (50.0%) of the aggregate number of Warrant
Shares issuable upon exercise of all of the then exercisable Warrants.
This Warrant shall be binding upon and inure to the benefit
of the Company, the Holder and their respective successors and permitted
assigns, and shall include, with respect to the Company, any Person succeeding
the Company by merger, consolidation, combination or acquisition of all or
substantially all of the Company's assets, and in such case, except as expressly
provided herein and in the Securities Purchase Agreement, all of the obligations
of the Company hereunder shall survive such merger, consolidation, combination
or acquisition.
5.10 Captions; Construction and Interpretation. The headings in
this Warrant are for convenience of reference only, do not constitute a part of
this Warrant and are not to be considered in construing or interpreting this
Warrant. All section, preamble, recital, exhibit, schedule, clause and party
references contained in this Warrant are to this Warrant unless otherwise
stated. Unless the context of this Warrant or any other Investment Document
clearly requires otherwise, the use of the word "including" is not limiting and
the use of the word "or" has the inclusive meaning represented by the phrase
"and/or." References in this Warrant to any agreement, other document or law "as
amended" or "as amended from time to time," or amendments of any document or
law, shall include any
- 15 -
amendments, supplements, restatements, replacements, renewals, refinancings,
waivers or other modifications.
5.11 Lost Warrant or Certificates. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant or of a stock certificate evidencing any Warrant
Shares and, in the case of any such loss, theft or destruction, upon receipt of
an indemnity reasonably satisfactory to the Company or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant or a stock
certificate, the Company shall make and deliver to the Holder, within three (3)
Business Days of receipt by the Company of such documentation, a new Warrant or
stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant or stock certificate.
5.12 No Impairment. The Company shall not by any action,
including amending its charter documents or regulations or through any
reorganization, reclassification, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate to
protect the rights of the Holder against impairment. Without limiting the
generality of the foregoing, the Company will (i) not increase the par value (if
any) of any shares of Common Stock receivable upon the exercise of this Warrant
above the amount payable therefor upon such exercise immediately prior to such
increase in par value, (ii) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of this Warrant, free
and clear of all liens, encumbrances, equities and claims, and (iii) use its
best efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant.
5.13 Governing Law. IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS WARRANT AND THE RIGHTS AND
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO CHOICE OF LAW OR CONFLICTS
OF LAW PRINCIPLES.
5.14 Remedies. If the Company fails to perform, comply with or
observe any covenant or agreement to be performed, complied with or observed by
it under this Warrant, the Holder may proceed to protect and enforce its rights
by suit in equity or action at law, whether for specific performance of any term
contained in this Warrant or for an injunction against the breach of any such
term or in aid of the exercise of any power granted in this Warrant or to
enforce any other legal or equitable right, or to take any one or more of such
actions. The Company agrees to pay all fees, costs, and expenses, including fees
and expenses of attorneys, accountants and other experts retained by the Holder,
and all fees, costs and expenses of appeals, incurred or expended by the Holder
in connection with the enforcement of this Warrant or the collection of any sums
due hereunder, whether or not suit is commenced. None of the rights, powers or
remedies conferred under this Warrant shall
- 16 -
be mutually exclusive, and each right, power or remedy shall be cumulative and
in addition to any other right, power or remedy whether conferred by this
Warrant or now or hereafter available at law, in equity, by statute or
otherwise.
5.15 WAIVER OF JURY TRIAL. EACH PARTY HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,
WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION, SUIT OR OTHER PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY
RELATING TO (a) THIS WARRANT, THE SECURITIES PURCHASE AGREEMENT OR ANY OTHER
INVESTMENT DOCUMENT, INCLUDING ANY PRESENT OR FUTURE AMENDMENT THEREOF, OR ANY
OF THE TRANSACTIONS CONTEMPLATED BY OR RELATED THERETO, OR (b) ANY CONDUCT, ACT
OR OMISSION OF THE PARTIES OR THEIR AFFILIATES (OR ANY OF THEM) WITH RESPECT TO
THIS WARRANT, THE SECURITIES PURCHASE AGREEMENT OR ANY OTHER INVESTMENT
DOCUMENTS, INCLUDING ANY PRESENT OR FUTURE AMENDMENT THEREOF, WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE, REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION,
SUIT OR OTHER PROCEEDING; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY
SUCH ACTION, SUIT OR OTHER PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE
WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
- 17 -
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed and
issued by its duly authorized representatives on the date first above written.
COMPANY
OVERHILL FARMS, INC., a Nevada
corporation
By: /s/ XXXXX XXXXX
------------------------------------------
Xxxxx Xxxxx
President and Chief Executive Officer
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President and Chief Financial
Officer
ACKNOWLEDGED AND AGREED:
XXXXXX XXXXXXXXX CAPITAL PARTNERS II, L.P.,
a California limited partnership
By: LLCP California Equity Partners II, L.P.,
a California limited partnership, its General Partner
By: Xxxxxx Xxxxxxxxx Capital Partners, Inc.,
a California corporation, its General Partner
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Xxxxxx X. Xxxxxxx
Vice President
- 18 -
EXHIBIT A
FORM OF
NOTICE OF EXERCISE
Pursuant to Section 2.1 of that certain Amended and Restated Warrant (No.
LL-1A) to Purchase 1,994,141 Shares of Common Stock dated November 24, 1999,
amended and restated as of October 29, 2002 (the "Warrant"), issued by Overhill
Farms, Inc., a Nevada corporation (the "Company"), the undersigned hereby
irrevocably elects to exercise the Warrant to purchase
___________________________ (_______) shares of Common Stock at a Warrant
Purchase Price of $_____ per share or an aggregate Warrant Purchase Price of
$___________.
[If the Holder has determined upon advice of counsel that compliance with
the HSR Act is required, include the following sentences: "The undersigned has
determined that this exercise is subject to the HSR Act and requests that the
Company file the requisite notification and report form with, and pay all
requisite filing fees to, the FTC and the DOJ as promptly as possible. The
purchase of the shares described above and the payment of the Warrant Purchase
Price are subject to the expiration or earlier termination of the waiting period
under the HSR Act."]
Pursuant to Section 2.2 of the Warrant, payment of the Warrant Purchase
Price is being made as follows (check as applicable):
___ The undersigned tenders payment as follows:
___ Certified or official bank check in the amount of
$_________;
___ Cash or wire transfer in the amount of $___________; or
___ Surrender of __________________ shares of Common Stock.
___ The undersigned hereby tenders payment through the "cashless
exercise" procedures set forth in Section 2.1 of the Warrant.
Accordingly, the undersigned hereby instructs the Company to
withhold and cancel ________ Warrant Shares otherwise issuable to
the undersigned upon exercise of the Warrant as provided herein as
payment in full for ___________ Warrant Shares to be issued to the
undersigned. No other consideration is being delivered in
connection with the exercise of the Warrant.
The undersigned hereby requests that [if the Holder has determined upon
advice of counsel that compliance with the HSR Act is required, include the
following phrase: "upon the expiration or earlier termination of the waiting
period under the HSR Act"] a certificate(s) for __________ shares of Common
Stock be issued in the name of _________________________, and delivered within
three (3) Business Days to ____________________ at the address set forth below.
The undersigned hereby represents that it is acquiring the Warrant Shares
for its own account and not with a view to or for resale in connection with any
distribution thereof in violation of applicable securities laws.
Dated: _______________ ____________________________________________________
Name of the Holder (must conform precisely
to the name specified on the face of this Warrant)
____________________________________________________
Signature of authorized representative of the Holder
____________________________________________________
Print or type name of authorized representative
Employer Tax Identification Number: ________________
Address of the Holder: _____________________________
_____________________________
_____________________________
