EXHIBIT 10.12
NO SALE, OFFER TO SELL OR TRANSFER OF THESE SECURITIES SHALL BE MADE WITHOUT (i)
THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE, OFFER, OR
TRANSFER MAY BE MADE WITHOUT REGISTRATION OR QUALIFICATION UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS OR (ii) SUCH REGISTRATION OR
QUALIFICATION.
BIG BUCK BREWERY & STEAKHOUSE, INC.
COMMON STOCK PURCHASE WARRANT
Big Buck Brewery & Steakhouse, Inc., a Michigan corporation (the
"Company"), hereby agrees that, for value received, XXXXXXX X. XXXX or his
assigns, is entitled, subject to the terms set forth below, to purchase from the
Company at any time or from time to time before 5:00 p.m., Minneapolis,
Minnesota time, on January 26, 2003, Twenty-Five Thousand (25,000) shares of the
Company's Common Stock at an exercise price of One Dollar and Eighty-One and
One-Quarter Cents ($1.8125) per share (the "Warrant Shares").
1. EXERCISE OF WARRANT. The purchase rights granted by this Warrant shall
be exercised by the holder surrendering this Warrant with the Warrant Exercise
Form attached hereto duly executed by such holder, to the Company at its
principal office, accompanied by payment, in cash, by cashier's check payable to
the order of the Company or by wire transfer to an account specified by the
Company, of the purchase price payable in respect of the Warrant Shares being
purchased. If less than all of the Warrant Shares purchasable hereunder are
purchased, the Company will, upon such exercise, execute and deliver to the
holder hereof a new Warrant evidencing the number of Warrant Shares not so
purchased. As soon as practicable after the exercise of this Warrant and payment
of the purchase price, the Company will cause to be issued in the name of and
delivered to the holder hereof, or as such holder may direct, a certificate or
certificates representing the Warrant Shares purchased upon such exercise. The
Company may require that such certificate or certificates contain on the face
thereof a legend substantially as follows:
No sale, offer to sell or transfer of the shares represented by this
certificate shall be made without (i) the opinion of counsel satisfactory
to the Company that such sale, offer, or transfer may be made without
registration or qualification under the Securities Act and applicable
state securities laws or (ii) such registration or qualification.
2. NEGOTIABILITY AND TRANSFER. This Warrant is issued upon the following
terms, to which each holder hereof consents and agrees:
(a) This Warrant may not be sold, transferred, assigned or
hypothecated without (i) the opinion of counsel satisfactory to the
Company that such sale, offer, or transfer may be made without
registration or qualification under the Securities Act and applicable
state securities laws or (ii) such registration or qualification.
(b) Until this Warrant is duly transferred on the books of the
Company, the Company may treat the registered holder of this Warrant as
absolute owner hereof for all purposes without being affected by any
notice to the contrary.
(c) Each successive holder of this Warrant, or of any portion of the
rights represented hereby, shall be bound by the terms and conditions set
forth herein.
3. ANTIDILUTION ADJUSTMENTS. If the Company shall at any time hereafter
subdivide or combine its outstanding shares of Common Stock, or declare a
dividend payable in Common Stock, the exercise price in effect
immediately prior to the subdivision, combination, or record date for such
dividend payable in Common Stock shall forthwith be proportionately increased,
in the case of combination, or proportionately decreased, in the case of
subdivision or declaration of a dividend payable in Common Stock, and the number
of Warrant Shares purchasable upon exercise of this Warrant immediately
preceding such event, shall be changed to the number determined by dividing the
then current exercise price by the exercise price as adjusted after such
subdivision, combination, or dividend payable in Common Stock and multiplying
the result of such division against the number of Warrant Shares purchasable
upon the exercise of this Warrant immediately preceding such event, so as to
achieve an exercise price and number of Warrant Shares purchasable after such
event proportional to such exercise price and number of Warrant Shares
purchasable immediately preceding such event. All calculations hereunder shall
be made to the nearest cent or to the nearest one-hundredth of a share, as the
case may be. No fractional Warrant Shares are to be issued upon the exercise of
this Warrant, but the Company shall pay a cash adjustment in respect of any
fraction of a share which would otherwise be issuable in an amount equal to the
same fraction of the market price per share of Common Stock on the day of
exercise as determined in good faith by the Company. In case of any capital
reorganization or any reclassification of the shares of Common Stock of the
Company, or in the case of any consolidation with or merger of the Company into
or with another corporation, or the sale of all or substantially all of its
assets to another corporation, which is effected in such a manner that the
holders of Common Stock shall be entitled to receive stock, securities, or
assets with respect to or in exchange for Common Stock, then, as a part of such
reorganization, reclassification, consolidation, merger, or sale, as the case
may be, lawful provision shall be made so that the holder of the Warrant shall
have the right thereafter to receive, upon the exercise hereof, the kind and
amount of shares of stock or other securities or property which the holder would
have been entitled to receive if, immediately prior to such reorganization,
reclassification, consolidation, merger, or sale, the holder had held the number
of Warrant Shares which were then purchasable upon the exercise of the Warrant.
In any such case, appropriate adjustment (as determined in good faith by the
Board of Directors of the Company) shall be made in the application of the
provisions set forth herein with respect to the rights and interest thereafter
of the holder of the Warrant, to the end that the provisions set forth herein
(including provisions with respect to adjustments of the exercise price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the exercise of
the Warrant.
4. NOTICE OF CORPORATE ACTION. If at any time:
(a) The Company shall pay any dividend upon its Common Stock payable
in stock or make any distribution (other than a cash dividend) to the
holders of its Common Stock;
(b) The Company shall offer for subscription purposes to the holders
of its Common Stock any additional shares of stock of any class or any
other rights;
(c) There shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the
Company with, or sale, conveyance, lease or other transfer of all or
substantially all of its assets to, another corporation; or
(d) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, the Company shall give notice to the holder hereof of the date on which
(i) the books of the Company shall close or a record shall be taken for each
stock dividend, distribution or subscription rights or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of the Common Stock of record shall participate
in such dividend, distribution or subscription rights or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding up, as the case may be. Such written notice shall be
given at least twenty
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(20) days prior to the action in question and not less than twenty (20) days
prior to the date on which the Company's transfer books are closed in respect
thereto.
5. NOTICES. All notices and other communications in connection with this
Warrant must be in writing and, except as otherwise provided herein, will be
deemed to have been duly given (i) when mailed by certified or registered mail,
postage prepaid, return receipt requested, (ii) when sent by facsimile, with
written confirmation of receipt, or (iii) when delivered to the addressee if
sent by a nationally recognized overnight delivery service (receipt requested).
Any notice required or permitted to be given to the holder of this Warrant shall
be mailed, sent or delivered to the registered holder of the Warrant at his or
her last known post office address or facsimile number appearing on the books of
the Company.
6. RESERVATION OF COMMON STOCK. The Company will at all times reserve and
keep available such number of its authorized but unissued shares of Common Stock
as will be sufficient to permit the exercise in full of this Warrant.
7. MISCELLANEOUS. Whenever reference is made herein to the issue or sale
of shares of Common Stock, the term "Common Stock" shall include any stock of
any class of the Company other than preferred stock that has a fixed limit on
dividends or a payment preference in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company. The Company will not, by
amendment of its Articles of Incorporation or through reorganization,
consolidation, merger, dissolution, or sale of assets, or by any other voluntary
act or deed, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations, or conditions to be observed or performed hereunder by
the Company, but will, at all times in good faith, assist, insofar as it is
able, in the carrying out of all provisions hereof and in the taking of all
other action which may be necessary in order to protect the rights of the holder
hereof against dilution. The representations, warranties, and agreements herein
contained shall survive the exercise of this Warrant. References to the "holder
of" include the immediate holder of Warrant Shares purchased on the exercise of
this Warrant, and the word "holder" shall include the plural thereof. This
Common Stock Purchase Warrant shall be interpreted under the laws of the State
of Michigan. All Warrant Shares or other securities issued upon the exercise of
the Warrant shall be validly issued, fully paid and nonassessable.
Notwithstanding anything contained herein to the contrary, the holder of this
Warrant shall not be deemed a shareholder of the Company for any purpose
whatsoever until and unless this Warrant is duly exercised.
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be signed
by its duly authorized officer this 26th day of January, 2000.
BIG BUCK BREWERY & STEAKHOUSE, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
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WARRANT EXERCISE FORM
To be signed only upon exercise of Warrant.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, __________ of the Warrant Shares of Big Buck Brewery &
Steakhouse, Inc. to which such Warrant relates and herewith makes payment of
$__________ therefor in cash, by cashier's check payable to the order of the
Company or by wire transfer to an account specified by the Company, and requests
that such Warrant Shares be issued and be delivered to the address for which is
set forth below the signature of the undersigned.
Dated:________________________
_____________________________________
(Taxpayer's I.D. Number)
_____________________________________
(Signature)
_____________________________________
(Address)
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ASSIGNMENT FORM
To be signed only upon authorized transfer of Warrant.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
unto _______________________________ the right to purchase Warrant Shares of Big
Buck Brewery & Steakhouse, Inc. to which the within Warrant relates and appoints
_____________________________, attorney, to transfer said right on the books of
such corporation with full power of substitution in the premises.
Dated:___________________________
_____________________________________
(Signature)
_____________________________________
(Address)
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