1
EXHIBIT 99.1
GB FOODS CORPORATION
WARRANT AGREEMENT
THIS WARRANT AGREEMENT dated as of July 21, 1997, is entered into by
and among GB FOODS CORPORATION, a Delaware corporation, (the "Company"), and
FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation (the "Holder").
The Company proposes to issue to the Holder warrants as hereinafter
described (the "Warrants") to purchase up to an aggregate of ONE MILLION FIVE
HUNDRED THOUSAND (1,500,000) shares, subject to adjustment as provided in
Section 8 hereof (such 1,500,000 shares, as adjusted, being hereinafter referred
to as the "Shares") of the Company's Common Stock, par value $0.08 (the "Common
Stock"), each Warrant entitling the holder ("Holder") thereof to purchase one
share of Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and for other good and valuable consideration, the
parties hereto agree as follows:
1. TRANSFER OF WARRANTS: FORM OF WARRANT. On the date hereof, in connection with
the sale and assignment of the Warrants to the Holder pursuant to terms of that
certain Stock and Warrant Purchase Agreement dated July 20, 1997 by and among
Xxxxxxx X. Xxxxxxx, the Company, and the Holder, the Holder hereby issues and
delivers the Warrants to the Holder. The form of the Warrant and of the form of
election to purchase Shares to be attached thereto shall be substantially as set
forth on the attachments hereto entitled "Warrant Certificate." The Warrants
shall be executed on behalf of the Company by the manual or facsimile signature
of the then present Chairman or Co-Chairman, President or any Vice President of
the Company, under its corporate seal, affixed or in facsimile, and attested by
the manual or facsimile signature of the present or any future Secretary or
Assistant Secretary of the Company.
2. REGISTRATION. The Warrants shall be numbered and shall be registered in a
Warrant register (the "Warrant Register"). Subject to the provisions of Section
3, the Company shall be entitled to treat the registered holder of any Warrant
on 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 of transfer of Warrants which are registered or are 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 of transfer, or with such knowledge of
such facts that its participation therein amounts to bad faith. The Warrants
shall be registered initially in the name of the Holder.
3. WARRANTS TRANSFERABILITY LIMITED. The Warrants are expressly hereby made
non-transferable and shall not be sold, transferred, assigned or hypothecated,
in part or in whole, except upon the liquidation and dissolution of the Holder
or the prior written consent of the Company. Any permitted transfer will be
allowed only upon delivery of the Warrant Certificate duly endorsed by the
Holder or by his duly authorized attorney or representative, or accompanied by
proper evidence of succession, assignment or authority to transfer and
contingent upon approval by the Board of Directors of the Company. Such
permitted transfer, of the Warrants shall be effective as of the date of such
endorsement or other proper evidence. In all cases of transfer by an attorney,
the original power of attorney, duly approved, or an official copy thereof, duly
certified, shall be deposited with the Company. Such permitted transfer of the
Warrants shall be effective as of the date of such endorsement or other proper
evidence. In all cases of transfer by an attorney, the original power of
attorney, duly approved, or an official copy thereof, duly certified, shall be
deposited with the Company. In case of transfer by executors, administrators,
guardians or other legal representatives, duly authenticated evidence of their
authority shall be produced, and may be required to be deposited
Page 1 of Eight
2
with the Company in its discretion. Upon any registration of transfer, the
Company shall deliver a new Warrant or Warrants to the person entitled thereto.
The Warrants may be exchanged at the option of the Holder thereof for other
Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of shares of Common Stock upon
surrender to the Company or its duly authorized agent. The Company may require
payment of the sum sufficient to cover all applicable taxes and other
governmental charges that may be imposed in connection with any voluntary
transfer, exchange or other disposition of the Warrants. Notwithstanding the
foregoing, the Company shall have no obligation to cause Warrants to be
transferred on its books to any person, if such transfer would violate the
registration provisions of Securities Act of 1933, as amended (the "Act"),
unless an exemption under the Act is available therefor.
4. TERM OF WARRANTS; EXERCISE OF WARRANTS.
(a) Subject to Paragraph 4(d) below, each Warrant entitles the
registered owner thereof to purchase one Share at a purchase price of
Five Dollars ($5.00) per Share (as adjusted from time to time pursuant
to the provisions hereof, the "Exercise Price") at any time or from
time to time the date of this Agreement until 5:00 p.m., California
time, November 23, 2002 (the "Warrant Expiration Date"). The Exercise
Price and the Shares issuable upon exercise of Warrants are subject to
adjustment upon the occurrence of certain events, pursuant to the
provisions of Section 8 of this Agreement. Subject to the provisions of
the Agreement, the Holder or a permitted Holder shall have the right,
which may be exercised as set forth in such Warrants, to purchase from
the Company and the Company shall issue and sell to the Holder or such
Holder the number of fully paid and nonassessable Shares of Common
Stock specified in such Warrants, upon surrender to the Company, or its
duly authorized agent, of such Warrants, with the form of election to
purchase attached thereto duly completed and signed, and upon payment
to the Company of the Exercise Price, as adjusted in accordance with
the provisions of Section 8 of this Agreement, for the number of Shares
in respect of which such Warrants are then exercised.
(b) The Purchase Price may be paid (i) in cash or by cashier's check
payable to the Company, (ii) by the surrender of Warrants owned by the
Holder or a permitted Holder having a Warrant Value (as defined below)
on the date of exercise equal to the Purchase Price, (iii) by the
surrender of shares of the Company's Common Stock in good form for
transfer, owned by the Holder and having a Fair Market Value (as
defined below) on the date of exercise equal to the Purchase Price, or
(iv) any combination of the foregoing. The term "Warrant Value" shall
mean the difference between the Exercise Price per share and the Fair
Market Value (as defined below) per share multiplied by the number of
Warrants being surrendered. The term "Fair Market Value" shall mean the
average over the previous five (5) trading days of the reported high
and low sales price on the Nasdaq Small Cap Market, the Nasdaq National
Market System, or such other national securities exchange on which the
Company's shares may be traded, or if not trading on the Nasdaq Small
Cap Market, the Nasdaq National Market System, or a national securities
exchange, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange
member firm selected from time to time by the Company for that purpose.
(c) No adjustment shall be made for any dividends on any Shares
issuable upon exercise of a Warrant. Upon each surrender of Warrants
and payment of the Exercise Price as aforesaid, the Company shall issue
and cause to be delivered with all reasonable dispatch to or upon the
written order of the Holder or the permitted Holder of such Warrants
and in such name or names as the Holder or such Holder may designate, a
certificate or certificates for the number of full Shares so purchased
upon the exercise of such Warrants, together with cash, as provided in
Section 9 of this Agreement, in respect of any fractional Shares
otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so
designated to be named therein shall be deemed to have become a holder
of record of such Shares as of the date of the surrender of Warrants
and payment of the Exercise Price as
Page 2 of Eight
3
aforesaid; provided, however, that if, at the date of surrender of such
Warrants and payment of such Exercise Price, the transfer books for the
Common Stock or other class of securities issuable upon the exercise of
such Warrants shall be closed, the certificates for the Shares shall be
issuable as of the date on which such books shall next be opened
(whether before, on or after the Warrant Expiration Date) and until
such date the Company shall be under no duty to deliver any certificate
for such Shares; provided, further, however, that the transfer books of
record, unless otherwise required by law, shall not be closed at any
one time for a period longer than five (5) days. The rights of purchase
represented by the Warrants shall be exercisable, at the election of
the Holder(s) thereof, either in full or from time to time in part and,
in the event that any Warrant is exercised in respect of less than all
of the Shares issuable upon such exercise at any time prior to the
Warrant Expiration Date, a new Warrant or Warrants will be issued for
the remaining number of Shares specified in the Warrant so surrendered.
5. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes, if any,
attributable to the issuance of Shares upon the exercise of Warrants; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable solely in respect of any transfer involved in the issue or
delivery of any certificates for Shares in a name other than that of the Holder
or a permitted Holder of Warrants in respect of which such Shares are issued.
6. MUTILATED OR MISSING WARRANTS. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and in substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent right of interest, but only
upon receipt of evidence reasonably satisfactory to the Company of such
mutilation, loss, theft or destruction of such Warrant and indemnity, if
requested, reasonably satisfactory to the Company. An applicant for such
substitute Warrants shall also comply with such other reasonable regulations and
pay such other reasonable charges and expenses as the Company may prescribe.
7. RESERVATION OF SHARES, ETC. There have been reserved, and the Company shall
at all times keep reserved, out of the authorized and unissued Common Stock, a
number of shares of Common Stock sufficient to provide for the exercise of the
rights of purchase represented by the outstanding Warrants. American Securities
Transfer, Incorporated, transfer agent for the Common Stock (the "Transfer
Agent"), and every subsequent transfer agent, if any, for the Company's
securities issuable upon the exercise of the Warrants will be irrevocably
authorized and directed at all times until the Warrant Expiration Date to
reserve such number of authorized and unissued shares as shall be required for
such purpose. The Company will keep a copy of this Agreement on file with the
Transfer Agent and with every subsequent transfer agent for any shares of the
Company's securities issuable upon the exercise of the Warrants. The Company
will supply the Transfer Agent or any subsequent transfer agent with duly
executed certificates for such purpose and will itself provide or otherwise make
available any cash which may be distributable as provided in Section 9 of this
Agreement. All Warrants surrendered in the exercise of the rights thereby
evidenced shall be canceled, and such canceled Warrants shall constitute
sufficient evidence of the number of Shares that have been issued upon the
exercise of such Warrants. No shares of Common Stock shall be subject to
reservation in respect of unexercised Warrants subsequent to the Warrant
Expiration Date.
8. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SHARES. The Exercise Price and
the number and kind of securities issuable upon exercise of each Warrant shall
be subject to adjustment from time to time upon the happening of certain events,
as follows:
(a) In case the Company shall (i) declare a dividend on its Common
Stock in shares of Common Stock or make a distribution in shares of
Common Stock (other than an issuance of Common Stock for valuable
consideration), (ii) subdivide its outstanding shares of Common Stock,
(iii) combine its outstanding shares of Common Stock in to a smaller
number of shares of Common Stock or (iv) issue by reclassification of
its shares of Common Stock other securities of
Page 3 of Eight
4
the Company (including any such reclassification in connection with the
consolidation or merger in which the Company is the continuing
corporation), the number of Shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the Holder
and any permitted Holder of each Warrant shall be entitled to receive
the kind and number of Shares or other securities of the Company which
he would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this
paragraph (a) shall become effective immediately after the effective
date of such event retroactive to immediately after the record date, if
any, for such event.
(b) No adjustment in the number of Shares purchasable hereunder shall
be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the number of Shares
purchasable upon the exercise of each Warrant; provided, however, that
any adjustments which by reason of this paragraph (e) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment but not later than five (5) years after the
happening of the specified event or events. All calculations shall be
made to the nearest one thousandth of a share.
(c) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted, as herein provided, the Exercise Price shall be
adjusted by multiplying the Exercise Price in effect immediately prior
to such adjustment by a fraction, of which the numerator shall be the
number of Shares purchasable upon the exercise of each Warrant
immediately prior to such adjustment, and of which the denominator
shall be the number of Shares so purchasable immediately thereafter.
(d) For the purpose of this Section 8, the term "shares of Common
Stock" shall mean (i) the class of stock designated as the Common Stock
of the Company at the date of this Agreement or (ii) any other class of
stock resulting from successive changes or reclassifications of such
shares consisting solely of changes in par value, or from no par value
to par value, or from par value to no par value.
(e) Whenever the number of Shares issuable upon the exercise of each
Warrant or the Exercise price of such Shares is adjusted, as herein
provided, the Company shall promptly mail by first class mail, postage
prepaid, to the Holder and/or each permitted Holder notice of such
adjustment or adjustments. The Company shall retain a firm of
independent public accountants (who may be the regular accountants
employed by the Company) to make any computation required by this
Section 8 and shall cause such accountants to prepare a certificate
setting forth the number of Shares issuable upon the exercise of each
Warrant and the Exercise Price of such Shares after such adjustment,
setting forth a brief statement of the facts requiring such adjustment
and setting forth the computation by which such adjustment was made.
Such certificate shall be conclusive as to the correctness of such
adjustment and the Holder and/or each permitted Holder shall have the
right to inspect such certificate during reasonable business hours.
(f) Except as provided in this Section 8, no adjustment in respect of
any dividends shall be made during the term of a Warrant or upon the
exercise of a Warrant.
(g) If any capital reorganization, recapitalization or reclassification
of the capital stock of the Company, or consolidation or merger of the
Company with another corporation, or the sale of all or substantially
all of the Company's assets to another person or entity, or any other
transaction (collectively, an "Organic Change") shall be effected in
such a way that holders of shares of Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for
shares of Common Stock (such stock, securities or assets being
hereinafter
Page 4 of Eight
5
referred to as "substitute property"), then, as a condition of such
Organic Change, lawful and adequate provision shall be made whereby the
Holder and the permitted Holder shall thereafter have the right to
purchase and receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of Common Stock immediately
theretofore purchasable and receivable upon the exercise of the
Warrants, such substituted property as may be issued or payable with
respect to or in exchange for a number of outstanding shares of Common
Stock equal to the number of shares of Common Stock immediately
theretofore purchasable and receivable upon the exercise of the
Warrants had such Organic Change not taken place. Further, in any such
case appropriate provision shall be made with respect to the rights and
interests of the Holder and the permitted Holder to the end that the
provision hereof (including without limitation provisions for
adjustments of the Exercise Price and of the number of shares
purchasable and receivable upon the exercise of the Warrants) shall
thereafter be applicable, as nearly as may be, in relation to any
substituted property thereafter purchasable and receivable upon the
exercise of the Warrants. The Company shall not effect any such Organic
Change, unless prior to the consummation thereof the successor entity
(if other than the Company) resulting from such consolidation or merger
or the corporation purchasing the assets shall assume by written
instrument approved by the board of directors of the Company the
obligation to deliver to the Holders such substituted property as, in
accordance with the foregoing provisions, the Holders may be entitled
to purchase and receive.
(h) Notwithstanding any adjustment in the Exercise Price or the number
or kind of shares purchasable upon the exercise of the Warrants
pursuant to this Agreement, certificates for Warrants issued prior or
subsequent to such adjustment may continue to express the same price
and number and kind of Shares as are initially issuable pursuant to
this Agreement.
9. FRACTIONAL INTERESTS. The Company shall not be required to issue fractions of
Shares on the exercise of Warrants. If more than one Warrant shall be presented
for exercise in full at the same time by the Holder or the same permitted
Holder, the number of Shares which shall be issuable upon the exercise thereof
shall be computed on the basis of the aggregate number of Shares issuable on
exercise of the Warrants so presented. If any fraction of a Share would, except
for the provisions of this Section 9, be issuable on 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 per share
of Common Stock (determined as provided in Section 8(d) of this Agreement) on
the date of exercise.
10. REGISTRATION RIGHTS.
(a) DEMAND REGISTRATION RIGHTS. The Company covenants and agrees with
the Holder and any other or subsequent Holders of the Registrable
Securities (as defined in paragraph (e) of this Section 10) that, upon
written request of the then Holder(s) of at least a majority of the
Registrable Securities under Warrants which were originally issued to
the Holder, the Company will file, from time to time as requested, as
promptly as practicable and, in any event, within ninety (90) days
after receipt of such written request, at the sole expense to the
Holder and/or any other or subsequent Holders of the Registrable
Securities, a registration statement (the "Registration Statement"),
under the Act, registering or qualifying the Registrable Securities for
sale. The Company will use its best efforts, through its officers,
directors, auditors and counsel in all matters necessary or advisable,
to file and cause to become effective such Registration Statement as
promptly as practicable and of a period of two (2) years thereafter to
reflect in the Registration Statement financial statements which are
prepared in accordance with Section 10(a)(3) of the Act and any facts
or event arising that, individually, or in the aggregate, represent a
fundamental and/or material change in the information set forth in the
Registration Statement to enable the Holder or any permitted Holders of
the Warrants to, subject to Section 4, exercise such Warrants and sell
Shares, or to enable any holders of Shares to sell such Shares, during
said two-year period. The Holders may sell the Registrable Securities
pursuant to the Registration Statement without exercising the Warrants.
Page 5 of Eight
6
(b) PIGGYBACK REGISTRATION RIGHTS. The Company covenants and agrees
with the Holder and any subsequent Holders of the Registrable
Securities that if, at any time after the Warrants become exercisable,
it proposes to file a Registration Statement with respect to any class
of equity or equity-related security under the Act in a primary
registration on behalf of the Company and/or in a secondary
registration on behalf of holders of such securities and the
registration form to be used may be used for registration of the
Registrable Securities, the Company will give prompt written notice to
the Holders of Registrable Securities (regardless of whether some of
the Holders shall have theretofore availed themselves of the right
provided in Section 10(a) of this Agreement) at the addresses appearing
on the records of the Company of its intention to file a registration
statement and will offer to include in such registration statement to
the maximum extent possible, subject to paragraphs (i) and (ii) of this
paragraph (b), such number of Registrable Securities with respect to
which the Company has received written requests for inclusion therein
within ten (10) business days after the Holder(s) receive notice from
the Company. All registrations requested pursuant to this paragraph (b)
are referred to herein as "Piggyback Registrations". This paragraph is
not applicable to a registration statement filed by the Company with
the Commission on Forms S-4 or S-8 or any successor forms thereto.
(i) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration includes an underwritten primary registration on
behalf of such Company and the underwriter(s) for such
offering determines in good faith and advises the Company in
writing that in its/their opinion the number of Registrable
Securities requested to be included in such registration
exceeds the number that can be sold in such offering without
materially adversely affecting the distribution of such
securities by the Company, the Company will include in such
registration (A) first, the securities that the Company
proposed to sell and (B) second, the Registrable Securities
requested to be included in such registration, apportioned pro
rata among the Holders of Registrable Securities and (C)
third, securities of the holders of other securities
requesting registration.
(ii) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration consists only of an underwritten secondary
registration on behalf of holders of securities of the Company
(other than pursuant to Section 10(a)), and the underwriter(s)
for such offering advises the Company in writing that in
its/their opinion the number of Registrable Securities
requested to be included in such registration exceeds the
number which can be sold in such offering without materially
adversely affecting the distribution of such securities by the
Company, the Company will include in such registration (A)
first, the securities requested to be included therein by the
holders requesting such registration and the Registrable
Securities requested to be included in such registration, pro
rata among all such holders on the basis of the number of
shares requested to be included by each such holder and (B)
second, other securities requested to be included in such
registration.
(c) OTHER REGISTRATION RIGHTS. In addition to the rights above
provided, the Company will cooperate with the then Holders of the
Registrable Securities in preparing and signing any registration
statement, in addition to the registration statements discussed above,
required in order to sell or transfer the Registrable Securities and
will supply all information required therefor, but such additional
registration statement, shall be at the then Holders' cost and expense;
provided, however, that if the Company elects to register or qualify
additional shares of Common Stock, the cost and expense of such
registration statement will be pro rated between the Company and the
Holders of the Registrable Securities according to the aggregate sales
price of the securities being issued.
Page 6 of Eight
7
(d) All registration expenses (as hereinafter defined) in connection
with a Demand or Piggyback Registration shall be borne by the Company
and all selling expenses (as hereinafter defined) in connection with a
Demand or Piggyback Registration shall be borne by the Holders. The
term "registration expenses" shall mean all expenses, except selling
expenses, incurred by the Company in complying with the registration
rights granted in this Section 11, including all registration,
qualification, and filing expenses; printing expenses; escrow fees;
fees and disbursements of counsel for the Company, blue sky fees and
expenses; and fees and disbursements of the Company's independent
auditors. The term "selling expenses" shall mean all underwriting
discounts and selling commissions, if any, applicable to the
Registrable Securities and expenses of counsel for the Holders. All
selling expenses shall be borne by the Holders in an amount equal to
their pro rata share of the Registrable Securities included in the
Registration Statement.
(e) For purposes of this Section 10, (I) the term "Holder" shall be
holders of Shares, and (ii)the term "Registrable Securities" shall mean
the Shares, if issued.
11. VOTING RIGHTS. Nothing contained in this Agreement or in any of the Warrants
shall be construed as conferring upon the Holders thereof the right to vote or
to receive dividends or to consent or to receive notice as shareholders in
respect of the meetings of shareholders or the election of directors of the
Company or any other matter, or any rights whatsoever as shareholders of the
Company.
12. NOTICES.
(a) Any notice pursuant to this Agreement to be given or made by the
Holder of any Warrant and/or the holder of any Share to or on the
Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed as follows or to such other address as
the Company may designate by notice given in accordance with this
Section 12, to the Holder and any permitted Holders of Warrants and/or
the holders of Shares:
GB FOODS CORPORATION
00 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
Notices or demands authorized by this Agreement to be given or made by
the Company to or on the Holder and any permitted Holder of any Warrant
and/or the holder of any share shall be sufficiently given or made
(except as otherwise provided in this Agreement) if sent by first-class
mail, postage prepaid, addressed to the Holder or such Holder or such
holder of Shares at the address of the Holder or such Holder or such
holder of Shares as shown on the Warrant Register or the books of the
Company, as the case may be.
(b) If at any time prior to the expiration of the Warrants and their
exercise, any of the following events shall occur:
(i) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to
receive a dividend or distribution payable otherwise than in
cash, or a cash dividend or distribution payable otherwise
than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the
books of the Company; or
(ii) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of
capital stock of the Company, or any option, right or warrant
to subscribe therefore; or
Page 7 of Eight
8
(iii) a dissolution, liquidation or winding-up of the Company
(other than in connection with a consolidation or merger) or a
sale of all or substantially all of its property, assets and
business as an entirety shall be proposed; or
(iv) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or
consolidation or merger of the Company with another entity;
then, in any one or more of said events, the Company shall give written
notice of such event at least twenty (20) days prior to the date fixed
as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend,
distribution, convertible or exchangeable securities or subscription
rights, options or warrants, or entitled to vote on such proposed
dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case
may be. Failure to give such notice or any defect therein shall not
affect the validity of any action taken in connection with the
declaration or payment of any such divided or distribution, or the
issuance of any convertible or exchangeable securities or subscription
rights, options or warrants, or any proposed dissolution, liquidation,
winding-up or sale.
13. GOVERNING LAW. This Agreement and each Warrant issued hereunder shall be
governed by and construed in accordance with the substantive laws of the State
of Delaware. The Company hereby agrees to accept service of process by notice
given to it pursuant to the provisions of Section 12.
14. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original; but such
counterparts together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
GB FOODS CORPORATION
By:
------------------------------
Its:
------------------------------
FIDELITY NATIONAL FINANCIAL, INC.
By:
------------------------------
Its:
------------------------------
Page 8 of Eight
9
THE WARRANTS AND THE SHARES OF COMMON STOCK REFERRED TO HEREIN HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 NOR QUALIFIED UNDER APPLICABLE
STATE SECURITIES LAWS IN RELIANCE UPON EXEMPTIONS THEREFROM. THESE WARRANTS MAY
BE ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO DISTRIBUTION OR
RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED OR OFFERED TO BE SO TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH WARRANTS UNDER THE SECURITIES ACT OF 1933 AND THE REGULATIONS
PROMULGATED PURSUANT THERETO (UNLESS EXEMPT THEREFROM), AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT ANY SUCH TRANSACTION SHALL NOT VIOLATE ANY
FEDERAL OR STATE SECURITIES LAWS, OR THE WRITTEN CONSENT OF THE COMPANY.
WARRANT CERTIFICATE
FOR PURCHASE OF COMMON STOCK
1,500,000 WARRANTS
GB FOODS CORPORATION
A DELAWARE CORPORATION
Initial Issuance on November 23, 1992
(Transferred to the Registered Holder on July 21, 1997)
Void after 5:00 p.m. California Time, November 23, 2002
This certifies that for value received FIDELITY NATIONAL FINANCIAL, INC.,
or registered assigns (the "Registered Holder"), is the owner of 1,500,000
Common Stock Purchase Warrants (the "Warrants") specified above issued in
accordance with that certain Warrant Agreement dated July 21, 1997 by and
between GB FOODS CORPORATION, a Delaware corporation (the "Company") and
FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation (the "Warrant
Agreement"). Each Warrant entitles the Registered Holder to purchase, subject to
the terms and conditions set forth in the Warrant Agreement, one fully paid and
nonassessable share of Common Stock, no par value, of the Company, at any time
prior to 5:00 P.M., California time, on November 23, 2002 (the "Expiration
Date"), upon the presentation and surrender of this Warrant Certificate with the
Subscription Form on the reverse hereof duly executed, at the Company's office,
or its successor or agent (the "Warrant Agent") accompanied by payment of $5.00
per share (the "Purchase Price") in lawful money of the United States of America
in cash or by official bank or certified check made payable to the Company at 00
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000. At the option of
the Registered Holder, the Warrants may be exercised by surrender of this
Warrant Certificate for the Warrant Value (as defined in the Warrant Agreement).
The Company will act as Warrant Agent until further notice to the Registered
Holder.
In the event of certain contingencies provided for in the Warrant
Agreement, the Purchase Price or the number of shares of Common Stock subject to
purchase upon the exercise of each Warrant represented hereby are subject to
modification or adjustment.
If the Expiration Date shall in the State of California be a holiday or a
day on which the banks are authorized to close, then the Expiration Date shall
mean 5:00 P.M., California time, the next following day which in the State of
California is not a holiday or a day on which banks are authorized to close.
GB FOODS CORPORATION
00 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
1
10
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional shares of Common Stock will be issued. In
the case of the exercise of less than all the Warrants represented hereby, the
Company shall cancel the Warrant Certificate upon the surrender hereof and shall
execute and deliver a new Warrant Certificate or Warrant Certificates of like
tenor, which the Warrant Agent shall countersign, for the balance of such
Warrants.
This Warrant shall not be exercisable by a Registered Holder in any state
where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by the
Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants, each of such new Warrant Certificates to represent
such number of Warrants as shall be designated by such Registered Holder at the
time of such surrender. Upon due presentment with any tax or other governmental
charge imposed in connection therewith, for registration of transfer of this
Warrant Certificate at such office, a new Warrant Certificate or Warrant
Certificates representing an equal aggregate number of Warrants will be issued
to the transferee in exchange thereof, subject to the limitations provided in
the Warrant Agreement.
The Company has agreed to register the shares issuable upon exercise of the
Warrants under certain conditions as set forth in the Warrant Agreement.
The Company agrees at all times to reserve or hold available a sufficient
number of Common Shares to cover the number of shares issuable upon the exercise
of this and all other Warrants or like tenor then outstanding.
Prior to the exercise of any Warrant represented hereby, the Registered
Holder shall not be entitled to any rights of a shareholder of the Company,
including, without limitation, the right to vote or to receive any notice of any
proceedings of the Company. No dividends shall be payable or accrue in respect
of this Warrant or the interest represented hereby or the shares purchasable
hereunder until or unless, and except to the extent that, this Warrant shall be
exercised.
Except as otherwise above provided, this Warrant and all rights hereunder
are transferable by the Registered Holder hereof in person or by duly authorized
attorney on the books of the Company upon surrender of this Warrant, properly
endorsed to the Company, only after approval by the Board of Directors of the
Company.
The Company may deem and treat the registered owner of this Warrant at any
time as the absolute owner hereof for all purposes and shall not be affected by
any notice to the contrary.
If at any time or from time to time the Company shall declare a stock
dividend or, by subdivision, consolidation, or reclassification of shares, or
otherwise, change as a whole the outstanding Common Shares into a different
number of a class of shares, the number and class of shares so changed shall,
for the purposes of this Warrant and the terms and conditions hereof, replace
the shares outstanding immediately prior to such change, and the Warrant
purchase price in effect, and the number of shares purchasable under this
Warrant, immediately prior to the date upon which such change shall become
effective, shall be proportionately adjusted. Irrespective of any adjustment or
change in the Warrant purchase price or the number of Common Shares actually
purchasable under this or any other Warrant of like tenor, the Warrants
theretofore and thereafter issued may continue to express the Warrant purchase
price per share and the number of shares purchasable thereunder as the Warrant
purchase price per share and the number of shares purchasable were expressed
upon the Warrants when initially issued.
2
11
Upon the happening of any event requiring an adjustment of the Warrant
purchase price hereunder, the Company shall forthwith give written notice
thereof to the Registered Holder stating the adjusted Warrant purchase price and
the adjusted number of Common Shares purchasable upon the exercise hereof
resulting from such event and setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based, The Board of
Directors of the Company shall determine the computation made hereunder. In case
any voluntary or involuntary dissolution, liquidation, or winding up of the
Company shall at any time be proposed, the Company shall give at least 20 days'
prior written notice thereof to the Registered Holder stating the date on which
such event is to take place and the date (which shall be at least 20 days after
the giving of such notice) as of which the holders of Common Shares of record
shall be entitled to exchange their Common Shares for securities or other
property deliverable upon such dissolution, liquidation, or winding up (on which
date, in the event such dissolution, liquidation, or winding up shall actually
take place, this Warrant and all rights with respect hereto shall terminate).
Notices pursuant to this paragraph shall be given by first class mail, postage
prepaid, addressed to the registered holder of this Warrant at the address of
such holder appearing in the records of the Company.
For the purposes of the foregoing paragraphs, the term "Common Shares"
shall include the aggregate number of shares that the Company, by its Articles
of Incorporation, as from time to time amended, is authorized to issue, which
are not limited to a fixed sum or percentage of the par value in respect of the
rights of the holders thereof to participate in dividends or in distribution of
assets upon the voluntary or involuntary liquidation, dissolution, or winding up
of the Company.
Any conflict in the terms of this Warrant Certificate and the terms of the
Warrant Agreement shall be resolved with reference to the terms of the Warrant
Agreement. This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed by its duly authorized officer and its corporate seal to be
imprinted hereon this 21st day of July, 1997.
GB FOODS CORPORATION
By:
-----------------
Xxxxx X. Xxxxxxx,
Secretary
CORPORATE SEAL
3
12
ASSIGNMENT
(To be executed by the Registered Holder to effect
a transfer of the Warrant. No transfer or assignment shall be
valid unless countersigned by the Secretary of GB Foods
Corporation, which signature shall evidence approval
by the Board of Directors.)
For value received _______________________________hereby sells, assigns,
and transfers unto ___________________________________________________________
this Warrant and the rights represented thereby to purchase Common Shares in
accordance with the terms and conditions thereof, and does hereby irrevocably
constitute and appoint the duly elected and acting Secretary of GB Foods
Corporation as attorney-in-fact to transfer this Warrant on the books of GB
Foods Corporation, with full power of substitution.
Dated: Signed:
----------------------- -------------------------------------
, Registered Holder
Countersigned:
GB Foods Corporation
By:
-------------
Its Secretary
4
13
SUBSCRIPTION FORM
(To be Executed by the Registered Holder in Order to Exercise Warrants)
The undersigned Registered Holder hereby irrevocably elects to exercise
________________________________________________ Warrants represented by the
attached Warrant Certificate, and to purchase the securities issuable upon the
exercise of such Warrants, tenders $________________________________ as payment
therefor and requests that certificates for such securities shall be issued in
the name of
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER]
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
[Please print or type name and address]
and be delivered to
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
[please print or type name and address]
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below.
Dated:
------------------------ ------------------------------
Signature of Registered Holder
\ ------------------------------
------------------------------
Address
------------------------------
Taxpayer Identification Number
------------------------------
Signature Guaranteed
ACCEPTED:
GB FOODS CORPORATION
By:
------------------------------
, Authorized Officer
5
