EXHIBIT 10.75
DEBT CONVERSION AGREEMENT
This DEBT CONVERSION AGREEMENT ("Agreement") made this 25th day of
August, 2003 ("Effective Date"), by and among SYNDICATED FOOD SERVICE
INTERNATIONAL, INC., a Florida corporation ("SYFS"), CHAN CAPITAL, LTD. ("CCL")
and FIDRA HOLDINGS, LTD. ("Fidra"). Together Syndicated, Chan and Fidra shall be
referred to as the Parties. Together Chan and Fidra shall be referred to as the
Holders.
WITNESSETH:
WHEREAS, pursuant to the US$3.5 million credit facility (the "Credit
Facility"), Chan Capital Ltd. ("CCL") has outstanding loans to Syndicated Food
Service International, Inc., the principal amount of US$1,500,000.00 , plus
accrued interest thereon at the rate of 10% per annum (the "Acquisition Loan").
Further that of the unpaid but accrued interest relating to the Acquisition
Loan, $100,000 has been capitalized bringing the total principal amount of the
Acquisition Loan to $1,600,000;
WHEREAS, to incent CCL to enter into the Credit Facility, Syndicated
issued certain warrants CCL and Ming Management, Ltd. to purchase in the
aggregate, 2,500,000 shares of Syndicated common stock at a current per share
exercise price of $0.50 which currently expire on December 31, 2003 (the
"Warrants");
WHEREAS, certain loans were made by Fidra to Toho Holdings, Inc., a
wholly owned subsidiary of Syndicated ("Toho"), in the aggregate of US$500,000
(the "Toho Loan") as supported by certain mortgages and promissory notes dated
December 13, 1999 in the amount of $300,000, $143,577.94 and $56,422.06, and the
Parent Company Guarantee, to which Syndicated as of December 13, 1999,
unconditionally and irrevocably guaranteed performance against the Toho Loans;
WHEREAS, together the Acquisition Loan and Toho Loan shall collectively
be referred to as the Loans;
WHEREAS the Parties believe it is their respective best interest that
the Loans be converted into Syndicated common equity.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and promises contained in this Agreement, the receipt and legal
sufficiency of which are acknowledged and agreed to, the parties agree as
follows:
1. That the Holders will covert the Loans (the "Conversion") into
shares of Syndicated par value $0.001 common stock at a per
share conversion price of $0.30 for a total of 7,000,000
shares of stock (the "Shares");
2. That as a condition precedent to the Holders taking the action
described in paragraph (a) above, Syndicated must raise a
minimum of $1,000,000 in private equity capital;
3. That if Syndicated has not raised the capital defined in item
2. above on or before November 1, 2003, this Agreement is null
and void as of that date;
4. That upon the Conversion, the terms of the Warrants shall be
amended to reduce the per share exercise price from the
current level of fifty cents ($0.50) to twenty five cents
($0.25) and that the current expiration date of December 31,
2003 shall be extended to June 30, 2004;
5. That Fidra and Chan represent and acknowledge that they have
received, read and understand the disclosures made by
Syndicated in the Private Placement Summary and Corporate
Overview (attached hereto as Exhibit 1), and the Form 10-K
(attached hereto as Exhibit 2) currently being prepared for
filing with the U.S. Securities and Exchange Commission, which
documents provide a disclosure of certain risk factors
inherent with making an investment of this nature and
Syndicated's financial condition; and
6. That Fidra and Chan have read and executed the Subscription
Agreement (attached hereto as Exhibit 3) for the purchase of
the Shares.
1
Draft, No. 2
IN WITNESS WHEREOF, the parties have executed this Debt Conversion
Agreement as of the date set forth above.
CHAN CAPITAL, LTD.
By: /s/ Xxxx Xxxxx
------------------------
Name: XXXX XXXXX
Title: PRESIDENT
FIDRA HOLDINGS, LTD.
By: /s/ Xxxx Xxxxx
------------------------
Name: XXXX XXXXX
Title: PRESIDENT
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------
Name: XXXXXX X. XXXXX, Xx.
Title: CEO
2
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
SUBSCRIPTION AGREEMENT
***INSTRUCTIONS***
1. CAREFULLY READ THIS SUBSCRIPTION AGREEMENT AND THE CONFIDENTIAL
CORPORATE OVERVIEW & PRIVATE PLACEMENT SUMMARY OF SYNDICATED FOOD
SERVICE INTERNATIONAL, INC. (THE "COMPANY") DATED MARCH 15, 2003 (THE
"PLACEMENT SUMMARY "). ASK QUESTIONS IF THERE IS ANYTHING IN THIS
AGREEMENT OR THE PLACEMENT SUMMARY THAT YOU DO NOT UNDERSTAND.
2. COMPLETE THE INFORMATION ON THIS PAGE.
3. INITIAL ONE APPROPRIATE BOX ON PAGES 6 OR 7 TO INDICATE THE BASIS UPON
WHICH YOU ARE AN ACCREDITED INVESTOR.
4. CHECK THE BOX AND INSERT YOUR SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER ON PAGE 9 IF YOU ARE NOT SUBJECT TO BACKUP
WITHHOLDING UNDER THE PROVISIONS OF SECTION 3406(A)(1)(C) OF THE
INTERNAL REVENUE CODE. INSERT YOUR SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER ON PAGE 9 BUT DO NOT CHECK THE BOX IF YOU ARE
SUBJECT TO BACKUP WITHHOLDING.
5. SIGN AND DATE THIS AGREEMENT ON PAGE 10.
6. MAKE YOUR CHECK PAYABLE TO "SYNDICATED FOOD SERVICE INTERNATIONAL,
INC," AND RETURN IT AND THIS AGREEMENT TO THE COMPANY.
Name of Investor: Chan Capital Ltd. Date: 25 AUGUST 2003
Number of Common Shares: 5,333,333 x $0.30 per Share = Total Subscription
Price: 1,600,000
CORRESPONDENCE ADDRESS:
X.X. XXX 000 XXXXXXXXXXX XXXXXX
XXXXXXXXXXXXXX XXXXX & XXXXXX XXXXXXX
B.W.I.
INVESTOR'S TELEPHONE NUMBERS: HOME (N/A)
BUSINESS (000) 000-0000
Page 1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "agreement") is made and entered into
between SYNDICATES FOOD SERVICE INTERNATIONAL, Inc., a Florida corporation (the
"Company"), and the person executing this Agreement as the investor (the
"Investor"). By executing this Agreement, the Investor acknowledges that he, she
or it understands that the Company is relying upon the accuracy of the
representations and warranties of Investor contained herein is complying with
the Company's obligations under applicable securities laws.
1. GENERAL. This Agreement sets forth the terms under which
Investor will invest in the Company. This subscription is one of a limited
number of such subscriptions for shares of the Company's Common Stock, par value
$0 001 per share (the "Shares"), offered to a limited number of qualified
investors. Execution of this Agreement by the Investor shall constitute an offer
by the Investor to subscribe for Shares in the amount and on the terms and
conditions specified herein. The Company shall have the right to reject any such
subscription offer, or, by executing a copy of this Agreement, to accept such
offer as to all, or if otherwise indicated by the Company, less than all of the
Shares specified by Investor herein. If the Investor's offer is accepted, the
Company will execute a copy of this Agreement and return it to Investor.
2. SUBSCRIPTION AMOUNT AND PAYMENT. The Investor delivers
herewith to the Company the Total Subscription Price shown on the previous page.
3. Investor's Representation and Warranties.
a. Investor represents and warrants that if he or she is an
individual, then he or she is a resident of the state of his or her address
shown on the first page hereof, or if Investor is a business entity, then it is
the "Qualified Organization" that it has indicated in Section 3 or 4 of the
Investor Suitability Requirements set forth below.
b. Investor also understands that Investor must bear the economic
risk of this investment for an indefinite period of time because the Shares are
not registered under the Securities Act of 1933, as amended (the "Act"), or any
state's securities laws. Investor has been advised that the Shares are not being
registered under the Act upon the basis that the transaction is exempt from such
registration requirements as a transaction by an issuer not involving any public
offering in reliance upon Section 4(2) of the Act and Regulation D promulgated
by the Securities and Exchange Commission thereunder, and that reliance by the
Company on such exemption is predicated in part on Investor's representations
set forth in this Agreement. Investor also understands that it is not
contemplated that any registration of the Shares will be made or that the
Company will take steps which will make the provisions of Rule 144 under the Act
available to permit the resale of the Shares. Except as contemplated hereby,
Investor agrees that Investor will not attempt to pledge, transfer, convey or
otherwise dispose of his, her or its Shares, except in a transaction that is the
subject of either; (i) an effective registration statement under the Act and any
applicable state securities laws, or (ii) an exemption from such registration
and, to the extent required by the Company, an opinion of counsel, which opinion
of counsel shall be satisfactory to the Company, to the effect that such
registration is not required. The Company may rely on such an opinion of
Investor's counsel in making such determination Accordingly, the Investor
understands and agrees that for a period of at least one year from the
Page 2
Date of issuance of the Shares, (i) stop-transfer instructions will be noted on
the appropriate records of the Company and (ii) there will be maintained on the
certificate(s) evidencing the Shares, or any substitutions therefor, a legend
reading substantially as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED FOR SALE UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER ANY OTHER STATE SECURITIES LAWS, AND HAVE
BEEN ISSUED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACTS, THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
ONLY AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
IN ANY MANNER EXCEPT: (I) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES ACTS; OR
(II) UPON THE ISSUANCE TO THE COMPANY OF AN OPINION OF COUNSEL, OR THE
SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY
TO THE COMPANY, THAT SUCH PROPOSED SALE, TRANSFER, PLEDGE OR OTHER
DISPOSITION WILL NOT BE IN VIOLATION OF THE ACT AND ANY APPLICABLE
STATE SECURITIES ACTS.
Any assignment or endorsement of the certificate(s) representing the
Shares which is in violation of the restrictions on transfer provided above will
not be recognized by the Company, nor will any assignee or endorsee of such
shares be recognized as the owner thereof by the Company.
c. Investor represents and warrants that Investor is able to bear
the economic risk of losing Investor's entire investment in the Company, which
is not disproportionate to Investor's net worth, and that Investor has adequate
means of providing for Investor's current needs and personal contingencies
without regard to the investment in the Company. Investor represents and
warrants that Investor is acquiring the Shares for investment for his, her or
its own account with no present intent to directly or indirectly resell,
transfer, distribute or participate in a distribution of the Shares or any
portion thereof. The Investor, if a business entity, was not formed for the
specific purpose of acquiring the Shares.
d. Investor represents and warrants that in connection with his,
her or its purchase of Shares, no oral or written representations or warranties
have been made to Investor other than those as may be contained in the Company's
Confidential Corporate Overview & Private Placement Summary dated March 15,2003
(the "Placement Summary") and information on file with the U.S. Securities and
Exchange Commission. Investor acknowledges that no person is authorized to give
any information or to make any statement not contained in the Placement Summary,
a copy of which Investor acknowledges has previously been received by him, her
or it, and that any information or statement not contained therein or
contemplated or permitted thereby must not be relied upon as having been
authorized by the Company, its President, any affiliates of any of the above,
or any professional advisors thereto. The Investor also acknowledges that any
written or oral representation or information which may have been made
Page 3
or provided to Investor prior to the date of the Placement Summary is superseded
by the Placement Summary. Further, the Investor acknowledges that no federal or
state administrative entity responsible for securities registration or
enforcement has made any recommendation or endorsement of the Shares or any
findings as to the fairness of an investment in the Shares
e. Investor represents and warrants that, to the extent Investor
has deemed necessary, Investor has consulted with Investor's attorney, financial
advisors, purchaser representatives and others regarding all financial,
securities and tax aspects of the proposed investment, and that said advisors
have reviewed the Placement Summary, this Agreement, and all documents relating
thereto on Investor's behalf. Investor and Investor's advisors have sufficient
knowledge and experience in business and financial matters to evaluate the
Company, to evaluate the risk of in investment in the Company, to make an
informed investment decision with respect thereto, and to protect Investor's
interest in connection with Investor's subscription for Shares, without need for
the additional information which would be required to be included in more
complete registration statements effective under the Act.
f. Investor acknowledges that Investor and Investor's advisors
have had an opportunity to ask questions of and to receive answers from the
officers of the Company and to obtain additional information in writing to the
extent that the Company possesses such information or could acquire it without
unreasonable effort or expense: (i) relative to the Company and the offering of
Shares; and (ii) necessary to verify the accuracy of any information, documents,
projections, books and records furnished. All such materials and information
requested by Investor and Investor's advisors (including information requested
to verify information previously furnished) has been made available and examined
by Investor or Investor's advisors.
g. Investor understands and acknowledges that the law firm of
Hill, Xxxxxxxxx & Xxxxxx LLP is representing the Company in connection with the
offering of Shares, and that Hill, Xxxxxxxxx & Xxxxxx LLP is not representing
Investor in connection with this transaction.
h. Investor represents that if he or she is an individual, then
he or she is at least 21 years of age or older.
4. INDEMNIFICATION. Investor shall indemnify and hold harmless
the Company, its officers and directors, any corporation or entity affiliated
with any of the above, the partners, officers, directors and employees of any of
the foregoing and any professional advisors thereto, from and against any and
all loss, damage, liability or expense, including costs and reasonable
attorney's fees, to which they may become subject or which they may incur by
reason of or in connection with any misrepresentation made by Investor, any
breach of any of Investor's representations or warranties, or any failure of
Investor to fulfill any of the covenants or agreements, under this Agreement.
5. REGISTRATION RIGHTS; LOCK-UP.
5.1. "PIGGY-BACK" REGISTRATION
(a) Grant of Right. The holders of the Shares ("Holders") shall
have the right until the date that is five years after the date of the Initial
Closing to include the Shares as part of any
Page 4
other registration of securities filed by the Company (other than in connection
with a transaction contemplated by Rule 145(a) promulgated under the Securities
Act or pursuant to Form S-8 or any equivalent form), provided, however, that if,
in the written opinion of the Company's managing underwriter or underwriters, if
any, for such offering, the inclusion of the Shares, when added to the
securities being registered by the Company or the selling stockholder(s), will
exceed the maximum amount of the Company's securities that can be marketed (i)
at a price reasonably related to their then current market value, or (ii)
without materially and adversely affecting the entire offering, the Company
shall nevertheless register all or any portion of the Shares required to be so
registered but such Shares shall not be sold by the Holders until 180 days after
the registration statement for such offering has become effective and provided
further that, if any securities are registered for sale on behalf of other
stockholders in such offering and such stockholders have not agreed to defer
such sale until the expiration of such 180 day period, the number of securities
to be sold by all stockholders in such public offering during such 180 day
period shall be apportioned pro rata among all such sailing stockholders,
including all Holders of the Shares, according to the total amount of securities
of the Company owned by said selling stockholders, including all Holders of the
Shares.
(b) Terms. The Company shall bear all fees and expenses attendant
to registering the Shares, but the Holders shall pay any and all underwriting
commissions and the expenses of any legal counsel selected by the Holders to
represent them in connection with the sale of the Shares. In the event of such a
proposed registration, the company shall furnish the then Holders of outstanding
Shares with not less than 30 days' written notice prior to the proposed date of
filing of such registration statement. Such notice shall continue to be given
for each registration statement filed by the Company until the earlier of (i)
such time as all of the Shares have been sold by the Holders thereof; or (ii)
the expiration of the "piggy-back" rights provided for herein by giving written
notice within 20 days of the receipt of the Company's notice of its intention to
file a registration statement. The Company shall cause any registration
statement filed pursuant to the above "piggy-back" rights to remain effective
for a period of at least nine consecutive months from the date that the Holders
of the Shares covered by such registration statement are first given the
opportunity to sell all of such securities. Notwithstanding the provisions of
this Section, the Company shall have the right at any time after it shall have
given written notice of its intention to file a registration statement
(irrespective of whether a written request for inclusion of any Shares shall
have been made) to elect not to file any such proposed registration statement,
or to withdraw the same after the filing but prior to the effective date
thereof.
5.2 GENERAL TERMS.
(a) Indemnification. The Company shall indemnify the Holder(s) of
the Shares to be sold pursuant to any registration statement hereunder and each
person, if any, who controls such Holders within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), against all loss; claim damage, expense or liability
(including all reasonable attorney's fees and other expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to which
any of them may become subject under the Securities Act, the Exchange Act or
otherwise, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in or based upon any untrue statement or
alleged untrue statement of a material fact contained in (i) such registration
statement; or (ii) any application or other document or written communication
(in
Page 5
this Section collectively called "application") executed by the Company or
based upon written information furnished by the Company in any jurisdiction in
order to qualify the Shares under the securities laws thereof or filed with the
Securities and Exchange Commission, any state securities commission or agency,
NASDAQ or any securities exchange; or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements there, in the light of the circumstances under which they were made,
not misleading, unless such statement or omission was made in reliance upon, and
in strict conformity with written information furnished to the Company with
respect to the Holder(s) by or on behalf of the Holder(s) expressly for use in
such registration statement or in any application, as the case may be. The
Company agrees promptly to notify the Holder(s) of the commencement of any
litigation or proceedings against the Company or any of its officers, directors
or controlling persons in connection with the issue and sale of the Shares or in
connection with the registration statement or any application. The Holder(s) and
their successors and assigns shall severally, and not jointly, indemnify the
Company, against all loss, claim, damage, expense or liability (including all
reasonable attorneys' fees and other expenses reasonably incurred In
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Securities Act, the Exchange Act or otherwise,
arising from information furnished by or on behalf of such Holders, with respect
to such Holders, in writing, for specific inclusion in such registration
statement or any application.
(b) Elimination of Registration Rights. Notwithstanding anything
to the contrary in this Section, no Holders shall be entitled to have their
Shares registered under the Securities Act if, in the opinion of counsel to the
Company, they may be sold without restriction pursuant to Rule 144(k)
promulgated under the Securities Act and any restrictive legends under the
Securities Act are removed from the certificates representing such securities
and any stop transfer order for such certificates is removed.
(c) Successor and Assigns. The registration rights granted to the
Holders inure to the benefit of all the Holders' successors, heirs, pledges,
assignees, transferees and purchaser of the Shares.
(d) Documents Delivered to Holder. The Company shall furnish to
each Holder participating in any of the forgoing offerings and to each
underwriter of any such offering, if any, a signed counterpart, addressed to
such Holder or underwriter, or (i) an opinion of counsel of the Company, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, an opinion dated the date of the
closing under any underwriting agreement related thereto); and (ii) a "cold
comfort" letter dated the effective date of such registration statement (and,
if such registration includes an underwriting agreement) signed by the
independent public accountants who have issued a report on the Company's
financial statements included in such registration statement (and the prospectus
included therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offering of securities. The company shall
also deliver promptly to each Holder participating in the offering requesting
the correspondence and memoranda described below and to the managing underwriter
copies of all correspondence between the Commission and the Company, its counsel
or auditors and all memoranda relating to discussions with the Commission or its
staff with respect to the
Page 6
registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc.
(e) Underwriting Agreement. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their Shares and may,
at their option, require that any or all the representations, warranties and
covenants of the Company to or for the benefit of such underwriter shall also be
made to and for the benefit of such Holders. Such Holders shall not be required
to make any representations or warranties to or agreements with the Company or
the underwriter except as they may relate to such Holders, their Shares and
their intended methods of distribution.
(f) Documents to be Delivered by Holder(s). Each of the Holder(s)
participating in any of the foregoing offerings shall furnish to the Company a
completed and executed questionnaire provided by the Company requesting
information customarily sought of selling security holders.
6. MISCELLANEOUS.
a. Investor agrees that he, she or it shall execute such
stockholders rights or other agreements which Company may generally distribute
for signature to other stockholders of its securities.
b. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to the
conflict of laws provisions therein.
c. This Agreement contains the entire agreement between the
parties with respect to the subject matter thereof. The provisions of this
Agreement may not be modified or waived except in writing.
d. The headings of this Agreement are for convenience of
reference only, and they shall not limit or otherwise effect the interpretation
of any term or provision hereof.
e. This Agreement and the rights, powers and duties set forth
herein shall, except as set forth herein, bind and inure to the benefit of the
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto. The Investor may not assign any of Investor's rights or
interests in and under this Agreement without the prior written consent of the
Company, and any attempted assignment without such consent shall be void and
without effect.
f. If any part of this Agreement is held by a court of competent
jurisdiction to be unenforceable, illegal or invalid, then the balance of this
Agreement shall remain in effect and unaffected by such unenforceability,
illegality or invalidity.
Page 7
INVESTOR SUITABILITY REQUIREMENTS
The Investor understands that the offering of shares is restricted to
investors who qualify as "accredited investors" pursuant to the provisions of
Rule 501 of Regulation D. The Investor understands that he, she or it must
therefore provide information to the Company which will enable the Company to
determine whether the Investor qualifies as an "accredited investor." The
Investor farther understands that the Company reserves the right to reject any
subscription offer.
The financial information and representations in this section are
required to be provided to the Company for the Investor to qualify to purchase
Shares. If the Investor wishes to be considered as an "accredited investor,"
he, she or it must INITIAL the paragraph below which describes the suitability
requirement under which the Investor intends to qualify. Upon request of the
Company, the Investor must provide information to document the representation
initialed, as described within each paragraph.
ONLY ONE PARAGRAPH NEED BE INITIALED.
[X] 1. Individual Net Worth Suitability
This suitability requirement may be selected only by a natural
person, and NOT by a corporation, partnership, trust, estate,
unincorporated association or other entity.
The Investor represents and warrants that his or her
individual net worth, or joint net worth with his or her
spouse, at the time of his or her purchase of the Shares
exceeds $1,000,000.
OR
[ ] 2. Individual Net Income Suitability
This suitability requirement may be selected only by a natural
person, and NOT by a corporation, partnership, trust, estate,
unincorporated association or other entity.
The Investor represents and warrants that his or her
individual income was in excess of $200,000 in each of the two
most recent years, or joint income with his or her spouse is
in excess of $300,000 in each of those years, and he or she
reasonably expects that his or her income will reach that same
income level in the current year.
Page 8
OR
[ ] 3. Certain Qualified Organizations
The Investor represents and warrants that it is (check one)'
[ ] a. A corporation, partnership, Massachusetts or
similar business trust, or organization described in Section
501(c)(3) of the Internal Revenue Code (tax exempt
organization), not formed for the specific purpose of
acquiring the Shares offered, with total assets in excess of
$5,000,000.
[ ] b. A bank, savings and loan association or
other similar institution (as defined in Sections 3(a)(2) and
3(a)(5)(A) of the Act).
[ ] c. An insurance company (as defined in Section
2(13) of the Act).
[ ] d. An investment company registered under the
Investment Comply Act of 1940.
[ ] e. A business development company as defined in
Section 2(a)(48) of the Investment Company Act of 1940 or
private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
[ ] f. A Small Business Investment Company licensed
by the U.S. Small Business Administration under Sections
301(c) or (d) of the Small Business Investment Act of 1958.
[ ] g. A broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
[ ] h. A trust with total assets in access of
$5,000,000 not formed for the specific purpose of acquiring
the Shares offered, whose purchase is directed by a
sophisticated person who has such knowledge and experience in
financial and business matters that he or she is capable of
evaluating the merits and risks of an investment in the
Shares.
NOTE: If you claim suitability under this paragraph (3), the
Company may require that you provide appropriate information
supporting your Claim to status as a Qualified Organization.
OR
[X] 4. The Investor represents and warrants that it is a corporation,
a partnership, an unincorporated association or other similar
entity, and that each owner of an equity interest in the
entity satisfies the suitability requirements of either
Page 9
paragraphs (1), (2) or (3) above. An entity may be
newly-formed for the purpose of purchasing the Shares.
NOTE: If you claim suitability under this paragraph (4), you
must submit a list of each of the owners with an equity
interest in the entity, setting forth the address, telephone
number and social security or tax identification number and
list for EACH such owner the information required under
paragraphs (1), (2) or (3) above. These separate pages must be
validly signed by or on behalf of each such owner or
beneficiary. Alternatively, each such owner or beneficiary may
complete a separate copy of this Agreement.
[AGREEMENT CONTINUES ON NEXT PAGE]
Page 10
PAYOR'S REQUEST FOR TAX IDENTIFICATION NUMBER
To avoid withholding on any importable payment pursuant to Section
3406(a)(1)(C) of the Internal Revenue Code, Investor must complete the Payer's
Request for Tax Identification Number below.
1. TAXPAYER IDENTIFICATION NUMBER. Enter your taxpayer
identification number in the appropriate space. For most individual taxpayers,
this is the social security number.
______________________________
Taxpayer Identification Number
2. BACKUP WITHHOLDING. CHECK THE BOX if you are NOT subject to
backup withholding under the provisions of Section 3406(a)(1)(C) of the Internal
Revenue Code
[X] I am not subject to backup withholding under the provisions of
Section 3406(a)(1)(C) of the Internal Revenue Code.
NOTE: You are subject to backup withholding on reportable payments if:
(a) You fail to furnish your taxpayer identification
number to the payor; or
(b) The Internal Revenue Service notifies the payor that
you furnished an incorrect taxpayer identification
number; or
(c) You are notified that you are subject to backup
withholding (under Section 3406(a)(1)(C) of the
Internal Revenue Code); or
(d) You fail to certify to the payor that you are not
subject to backup withholding under Section
3406(a)(1)(C) of the Internal Revenue Code.
3. CERTIFICATION. Under penalties of perjury, and by executing
the signature page which immediately follow this page, I certify that the
information provided in this Payor's Request for Tax Identification Number is
true, correct and complete.
Page 11
SIGNATURE PAGE
Investor represents and warrants that (a) all the information contained
herein is complete and accurate and contains no material omissions and may be
relied upon by the Company, and (b) Investor will notify the Company in writing
immediately of any change in any of such information which occurs prior to the
closing.
IN WITNESS WHEREOF, Investor has executed this Subscription Agreement
on the date first above written.
INVESTOR:
(If an Individual)
----------------------------
(Signature of Investor)
(If a Business Entity)
CHAN CAPITAL LTD.
/s/ Xxxxxx Xxxx
-----------------------------
By: M&S Secretaries Ltd.
Its: Company Secretary
The foregoing offer is hereby accepted by Syndicated Food Service
International, Inc., this 25th day of AUGUST, 2003.
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
/s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------
Xxxxxx X. Xxxxx, Xx.
President & Chief Executive Officer
Page 12
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
SUBSCRIPTION AGREEMENT
* * * INSTRUCTIONS * * *
1. CAREFULLY READ THIS SUBSCRIPTION AGREEMENT AND THE CONFIDENTIAL
CORPORATE OVERVIEW & PRIVATE PLACEMENT SUMMARY OF SYNDICATED FOOD
SERVICE INTERNATIONAL, INC. (THE "COMPANY") DATED MARCH 15, 2003 (THE
"PLACEMENT SUMMARY "). ASK QUESTIONS IF THERE IS ANYTHING IN THIS
AGREEMENT OR THE PLACEMENT SUMMARY THAT YOU DO NOT UNDERSTAND.
2. COMPLETE THE INFORMATION ON THIS PAGE.
3. INITIAL ONE APPROPRIATE BOX ON PAGES 6 OR 7 TO INDICATE THE BASIS
UPON WHICH YOU ARE AN ACCREDITED INVESTOR.
4. CHECK THE BOX AND INSERT YOUR SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER ON PAGE 9 IF YOU ARE NOT SUBJECT TO BACKUP
WITHHOLDING UNDER THE PROVISIONS OF SECTION 3406(A)(1)(C) OF THE
INTERNAL REVENUE CODE. INSERT YOUR SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER ON PAGE 9 BUT DO NOT CHECK THE BOX IF YOU ARE
SUBJECT TO BACKUP WITHHOLDING.
5. SIGN AND DATE THIS AGREEMENT ON PAGE 10.
6. MAKE YOUR CHECK PAYABLE TO "SYNDICATED FOOD SERVICE INTERNATIONAL,
INC." AND RETURN IT AND THIS AGREEMENT TO THE COMPANY.
Name of Investor: FIDRA HOLDINGS LTD Date: 25 AUGUST 2003
Number of Common Shares: 1,666,666 x $ 0.30 per Share = Total Subscription
Price: $ 500,000
CORRESPONDENCE ADDRESS:
CABLE XXXXX XXXXX, XXXXX # 0
XXXX XXX XX, P.O. BOX CB- 11728
XXXXXX, THE BAHAMAS
INVESTOR'S TELEPHONE NUMBERS: HOME (N/A) ____ ___
BUSINESS (000) 000-0000
Page 1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement") is made and entered into
between SYNDICATED FOOD SERVICE INTERNATIONAL, Inc., a Florida corporation (the
"Company"), and the person executing this Agreement as the investor (the
"Investor"). By executing this Agreement, the Investor acknowledges that he, she
or it understands that the Company is relying upon the accuracy of the
representations and warranties of Investor contained herein in complying with
the Company's obligations under applicable securities laws.
1. GENERAL. This Agreement sets forth the terms under which
Investor will invest in the Company. This subscription is one of a limited
number of such subscriptions for shares of the Company's Common Stock, par value
$0.001 per share (the "Shares"), offered to a limited number of qualified
investors. Execution of this Agreement by the Investor shall constitute an offer
by the Investor to subscribe for Shares in the amount and on the terms and
conditions specified herein. The Company shall have the right to reject any such
subscription offer, or, by executing a copy of this Agreement, to accept such
offer as to all, or if otherwise indicated by the Company, less than all of the
Shares specified by Investor herein. If the Investor's offer is accepted, the
Company will execute a copy of this Agreement and return it to Investor.
2. SUBSCRIPTION AMOUNT AND PAYMENT. The Investor delivers
herewith to the Company the Total Subscription Price shown on the previous page.
3. Investor's Representation and Warranties.
a. Investor represents and warrants that if he or she is an
individual, then he or she is a resident of the state of his or her address
shown on the first page hereof, or if Investor is a business entity, then it is
the "Qualified Organization" that it has indicated in Section 3 or 4 of the
Investor Suitability Requirements set forth below.
b. Investor also understands that Investor must bear the economic
risk of this investment for an indefinite period of time because the Shares are
not registered under the Securities Act of 1933, as amended (the "Act"), or any
state's securities laws. Investor has been advised that the Shares are not being
registered under the Act upon the basis that the transaction is exempt from such
registration requirements as a transaction by an issuer not involving any public
offering in reliance upon Section 4(2) of the Act and Regulation D promulgated
by the Securities and Exchange Commission thereunder, and that reliance by the
Company on such exemption is predicated in part on Investor's representations
set forth in this Agreement. Investor also understands that it is not
contemplated that any registration of the Shares will be made or that the
Company will take steps which will make the provisions of Rule 144 under the Act
available to permit the resale of the Shares. Except as contemplated hereby,
Investor agrees that Investor will not attempt to pledge, transfer, convey or
otherwise dispose of his, her or its Shares, except in a transaction that is the
subject of either: (i) an effective registration statement under the Act and any
applicable state securities laws, or (ii) an exemption from such registration
and, to the extent required by the Company, an opinion of counsel, which opinion
of counsel shall be satisfactory to the Company, to the effect that such
registration is not required. The Company may rely on such an opinion of
Investor's counsel in making such determination. Accordingly, the Investor
understands and agrees that for a period of at least one year from the
Page 2
date of issuance of the Shares, (i) stop-transfer instructions will be noted on
the appropriate records of the Company and (ii) there will be maintained on the
certificate(s) evidencing the Shares, or any substitutions therefor, a legend
reading substantially as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED FOR SALE UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER ANY OTHER STATE SECURITIES LAWS, AND HAVE
BEEN ISSUED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACTS. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
ONLY AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
IN ANY MANNER EXCEPT: (I) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES ACTS; OR
(II) UPON THE ISSUANCE TO THE COMPANY OF AN OPINION OF COUNSEL, OR THE
SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY
TO THE COMPANY, THAT SUCH PROPOSED SALE, TRANSFER, PLEDGE OR OTHER
DISPOSITION WILL NOT BE IN VIOLATION OF THE ACT AND ANY APPLICABLE
STATE SECURITIES ACTS.
Any assignment or endorsement of the certificate(s) representing the
Shares which is in violation of the restrictions on transfer provided above will
not be recognized by the Company, nor will any assignee or endorsee of such
shares be recognized as the owner thereof by the Company.
c. Investor represents and warrants that Investor is able to bear
the economic risk of losing Investor's entire investment in the Company, which
is not disproportionate to Investor's net worth, and that Investor has adequate
means of providing for Investor's current needs and personal contingencies
without regard to the investment in the Company. Investor represents and
warrants that Investor is acquiring the Shares for investment for his, her or
its own account with no present intent to directly or indirectly resell,
transfer, distribute or participate in a distribution of the Shares or any
portion thereof. The Investor, if a business entity, was not formed for the
specific purpose of acquiring the Shares.
d. Investor represents and warrants that in connection with his,
her or its purchase of Shares, no oral or written representations or warranties
have been made to Investor other than those as may be contained in the Company's
Confidential Corporate Overview & Private Placement Summary dated March 15, 2003
(the "Placement Summary") and information on file with the U.S. Securities and
Exchange Commission. Investor acknowledges that no person is authorized to give
any information or to make any statement not contained in the Placement Summary,
a copy of which Investor acknowledges has previously been received by him, her
or it, and that any information or statement not contained therein or
contemplated or permitted thereby must not be relied upon as having been
authorized by the Company, its President, any affiliates of any of the above, or
any professional advisors thereto. The Investor also acknowledges that any
written or oral representation or information which may have been made
Page 3
or provided to Investor prior to the date of the Placement Summary is superseded
by the Placement Summary. Further, the Investor acknowledges that no federal or
state administrative entity responsible for securities registration or
enforcement has made any recommendation or endorsement of the Shares or any
findings as to the fairness of an investment in the Shares.
e. Investor represents and warrants that, to the extent Investor
has deemed necessary, Investor has consulted with Investor's attorney, financial
advisors, purchaser representatives and others regarding all financial,
securities and tax aspects of the proposed investment, and that said advisors
have reviewed the Placement Summary, this Agreement, and all documents relating
thereto on Investor's behalf. Investor and Investor's advisors have sufficient
knowledge and experience in business and financial matters to evaluate the
Company, to evaluate the risk of an investment in the Company, to make an
informed investment decision with respect thereto, and to protect Investor's
interest in connection with Investor's subscription for Shares, without need for
the additional information which would be required to be included in more
complete registration statements effective under the Act.
f. Investor acknowledges that Investor and Investor's advisors
have had an opportunity to ask questions of and to receive answers from the
officers of the Company and to obtain additional information in writing to the
extent that the Company possesses such information or could acquire it without
unreasonable effort or expense: (i) relative to the Company and the offering of
Shares; and (ii) necessary to verify the accuracy of any information, documents,
projections, books and records furnished. All such materials and information
requested by Investor and Investor's advisors (including information requested
to verify information previously furnished) has been made available and examined
by Investor or Investor's advisors.
g. Investor understands and acknowledges that the law firm of
Hill, Xxxxxxxxx & Xxxxxx LLP is representing the Company in connection with the
offering of Shares, and that Hill, Xxxxxxxxx & Xxxxxx LLP is not representing
Investor in connection with this transaction.
h. Investor represents that if he or she is an individual, then
he or she is at least 21 years of age or older.
4. INDEMNIFICATION. Investor shall indemnify and hold harmless
the Company, its officers and directors, any corporation or entity affiliated
with any of the above, the partners, officers, directors and employees of any of
the foregoing and any professional advisors thereto, from and against any and
all loss, damage, liability or expense, including costs and reasonable
attorney's fees, to which they may become subject or which they may incur by
reason of or in connection with any misrepresentation made by Investor, any
breach of any of Investor's representations or warranties, or any failure of
Investor to fulfill any of the covenants or agreements, under this Agreement.
5. REGISTRATION RIGHTS; LOCK-UP.
5.1. "PIGGY-BACK" REGISTRATION
(a) Grant of Right. The holders of the Shares ("Holders") shall
have the right until the date that is five years after the date of the Initial
Closing to include the Shares as part of any
Page 4
other registration of securities filed by the Company (other than in connection
with a transaction contemplated by Rule 145(a) promulgated under the Securities
Act or pursuant to Form S-8 or any equivalent form), provided, however, that if,
in the written opinion of the Company's managing underwriter or underwriters, if
any, for such offering, the inclusion of the Shares, when added to the
securities being registered by the Company or the selling stockholder(s), will
exceed the maximum amount of the Company's securities that can be marketed (i)
at a price reasonably related to their then current market value, or (ii)
without materially and adversely affecting the entire offering, the Company
shall nevertheless register all or any portion of the Shares required to be so
registered but such Shares shall not be sold by the Holders until 180 days after
the registration statement for such offering has become effective and provided
further that, if any securities are registered for sale on behalf of other
stockholders in such offering and such stockholders have not agreed to defer
such sale until the expiration of such 180 day period, the number of securities
to be sold by all stockholders in such public offering during such 180 day
period shall be apportioned pro rata among all such selling stockholders,
including all Holders of the Shares, according to the total amount of securities
of the Company owned by said selling stockholders, including all Holders of the
Shares.
(b) Terms. The Company shall bear all fees and expenses attendant
to registering the Shares, but the Holders shall pay any and all underwriting
commissions and the expenses of any legal counsel selected by the Holders to
represent them in connection with the sale of the Shares. In the event of such a
proposed registration, the company shall furnish the then Holders of outstanding
Shares with not less than 30 days' written notice prior to the proposed date of
filing of such registration statement. Such notice shall continue to be given
for each registration statement filed by the Company until the earlier of (i)
such time as all of the Shares have been sold by the Holders thereof; or (ii)
the expiration of the "piggy-back" rights provided for herein by giving written
notice within 20 days of the receipt of the Company's notice of its intention to
file a registration statement. The Company shall cause any registration
statement filed pursuant to the above "piggy-back" rights to remain effective
for a period of at least nine consecutive months from the date that the Holders
of the Shares covered by such registration statement are first given the
opportunity to sell all of such securities. Notwithstanding the provisions of
this Section, the Company shall have the right at any time after it shall have
given written notice of its intention to file a registration statement
(irrespective of whether a written request for inclusion of any Shares shall
have been made) to elect not to file any such proposed registration statement,
or to withdraw the same after the filing but prior to the effective date thereof
5.2 GENERAL TERMS.
(a) Indemnification. The Company shall indemnify the Holder(s) of
the Shares to be sold pursuant to any registration statement hereunder and each
person, if any, who controls such Holders within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), against all loss, claim damage, expense or liability
(including all reasonable attorney's fees and other expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to which
any of them may become subject under the Securities Act, the Exchange Act or
otherwise, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in or based upon any untrue statement or
alleged untrue statement of a material fact contained in (i) such registration
statement; or (ii) any application or other document or written communication
(in
Page 5
this Section collectively called "application") executed by the Company or based
upon written information furnished by the Company in any jurisdiction in order
to qualify the Shares under the securities laws thereof or filed with the
Securities and Exchange Commission, any state securities commission or agency,
NASDAQ or any securities exchange; or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements there, in the light of the circumstances under which they were made,
not misleading, unless such statement or omission was made in reliance upon, and
in strict conformity with, written information furnished to the Company with
respect to the Holder(s) by or on behalf of the Holder(s) expressly for use in
such registration statement or in any application, as the case may be. The
Company agrees promptly to notify the Holder(s) of the commencement of any
litigation or proceedings against the Company or any of its officers, directors
or controlling persons in connection with the issue and sale of the Shares or in
connection with the registration statement or any application. The Holder(s) and
their successors and assigns shall severally, and not jointly, indemnify the
Company, against all loss, claim, damage, expense or liability (including all
reasonable attorneys' fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Securities Act, the Exchange Act or otherwise,
arising from information furnished by or on behalf of such Holders, with respect
to such Holders, in writing, for specific inclusion in such registration
statement or any application.
(b) Elimination of Registration Rights. Notwithstanding anything
to the contrary in this Section, no Holders shall be entitled to have their
Shares registered under the Securities Act if, in the opinion of counsel to the
Company, they may be sold without restriction pursuant to Rule 144(k)
promulgated under the Securities Act and any restrictive legends under the
Securities Act are removed from the certificates representing such securities
and any stop transfer order for such certificates is removed.
(c) Successor and Assigns. The registration rights granted to the
Holders inure to the benefit of all the Holders' successors, heirs, pledges,
assignees, transferees and purchaser of the Shares.
(d) Documents Delivered to Holders. The Company shall furnish to
each Holder participating in any of the forgoing offerings and to each
underwriter of any such offering, if any, a signed counterpart, addressed to
such Holder or underwriter, or (i) an opinion of counsel of the Company, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, an opinion dated the date of the
closing under any underwriting agreement related thereto); and (ii) a "cold
comfort" letter dated the effective date of such registration statement (and, if
such registration includes an underwriting agreement) signed by the independent
public accountants who have issued a report on the Company's financial
statements included in such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities. The company shall
also deliver promptly to each Holder participating in the offering requesting
the correspondence and memoranda described below and to the managing underwriter
copies of all correspondence between the Commission and the Company, its counsel
or auditors and all memoranda relating to discussions with the Commission or its
staff with respect to the
Page 6
registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc.
(e) Underwriting Agreement. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their Shares and may,
at their option, require that any or all the representations, warranties and
covenants of the Company to or for the benefit of such underwriter shall also be
made to and for the benefit of such Holders. Such Holders shall not be required
to make any representations or warranties to or agreements with the Company or
the underwriter except as they may relate to such Holders, their Shares and
their intended methods of distribution.
(f) Documents to be Delivered by Holder(s). Each of the Holder(s)
participating in any of the foregoing offerings shall furnish to the Company a
completed and executed questionnaire provided by the Company requesting
information customarily sought of selling security holders.
6. MISCELLANEOUS.
a. Investor agrees that he, she or it shall execute such
stockholders rights or other agreements which Company may generally distribute
for signature to other stockholders of its securities.
b. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to the
conflict of laws provisions therein.
c. This Agreement contains the entire agreement between the
parties with respect to the subject matter thereof. The provisions of this
Agreement may not be modified or waived except in writing.
d. The headings of this Agreement are for convenience of
reference only, and they shall not limit or otherwise effect the interpretation
of any term or provision hereof.
e. This Agreement and the rights, powers and duties set forth
herein shall, except as set forth herein, bind and inure to the benefit of the
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto. The Investor may not assign any of Investor's rights or
interests in and under this Agreement without the prior written consent of the
Company, and any attempted assignment without such consent shall be void and
without effect.
f. If any part of this Agreement is held by a court of competent
jurisdiction to be unenforceable, illegal or invalid, then the balance of this
Agreement shall remain in effect and unaffected by such unenforceability,
illegality or invalidity.
Page 7
INVESTOR SUITABILITY REQUIREMENTS
The Investor understands that the offering of shares is restricted to
investors who qualify as "accredited investors" pursuant to the provisions of
Rule 501 of Regulation D. The Investor understands that he, she or it must
therefore provide information to the Company which will enable the Company to
determine whether the Investor qualifies as an "accredited investor." The
Investor further understands that the Company reserves the right to reject any
subscription offer.
The financial information and representations in this section are
required to be provided to the Company for the Investor to qualify to purchase
Shares. If the Investor wishes to be considered as an "accredited investor," he,
she or it must INITIAL the paragraph below which describes the suitability
requirement under which the Investor intends to qualify. Upon request of the
Company, the Investor must provide information to document the representation
initialed, as described within each paragraph.
ONLY ONE PARAGRAPH NEED BE INITIALED.
[X] 1. Individual Net Worth Suitability
This suitability requirement may be selected only by a natural
person, and NOT by a corporation, partnership, trust, estate,
unincorporated association or other entity.
The Investor represents and warrants that his or her
individual net worth, or joint net worth with his or her
spouse, at the time of his or her purchase of the Shares
exceeds $1,000,000.
OR
[ ] 2. Individual Net Income Suitability
This suitability requirement may be selected only by a natural
person, and NOT by a corporation, partnership, trust, estate,
unincorporated association or other entity.
The Investor represents and warrants that his or her
individual income was in excess of $200,000 in each of the two
most recent years, or joint income with his or her spouse is
in excess of $300,000 in each of those years, and he or she
reasonably expects that his or her income will reach that same
income level in the current year.
Page 8
OR
[ ] 3. Certain Qualified Organizations
The Investor represents and warrants that it is (check one):
[ ] a. A corporation, partnership, Massachusetts or
similar business trust, or organization described in Section
501(c)(3) of the Internal Revenue Code (tax exempt
organization), not formed for the specific purpose of
acquiring the Shares offered, with total assets in excess of
$5,000,000.
[ ] b. A bank, savings and loan association or
other similar institution (as defined in Sections 3(a)(2) and
3(a)(5)(A) of the Act).
[ ] c. An insurance company (as defined in Section
2(13) of the Act).
[ ] d. An investment company registered under the
Investment Company Act of 1940.
[ ] e. A business development company as defined in
Section 2(a)(48) of the Investment Company Act of 1940 or
private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
[ ] f. A Small Business Investment Company licensed
by the U.S. Small Business Administration under Sections
301(c) or (d) of the Small Business Investment Act of 1958.
[ ] g. A broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
[ ] h. A trust with total assets in excess of
$5,000,000 not formed for the specific purpose of acquiring
the Shares offered, whose purchase is directed by a
sophisticated person who has such knowledge and experience in
financial and business matters that he or she is capable of
evaluating the merits and risks of an investment in the
Shares.
NOTE: If you claim suitability under this paragraph (3), the Company
may require that you provide appropriate information
supporting your claim to status as a Qualified Organization.
OR
[X] 4. The Investor represents and warrants that it is a
corporation, a partnership, an unincorporated association or
other similar entity, and that each owner of an equity
interest in the entity satisfies the suitability requirements
of either
Page 9
paragraphs (1), (2) or (3) above. An entity may be
newly-formed for the purpose of purchasing the Shares.
NOTE: If you claim suitability under this paragraph (4), you must
submit a list of each of the owners with an equity interest in
the entity, setting forth the address, telephone number and
social security or tax identification number and list for EACH
such owner the information required under paragraphs (1), (2)
or (3) above. These separate pages must be validly signed by
or on behalf of each such owner or beneficiary. Alternatively,
each such owner or beneficiary may complete a separate copy of
this Agreement.
[AGREEMENT CONTINUES ON NEXT PAGE]
Page 10
PAYOR'S REQUEST FOR TAX IDENTIFICATION NUMBER
To avoid withholding on any reportable payment pursuant to Section
3406(a)(l)(C) of the Internal Revenue Code, Investor must complete the Payer's
Request for Tax Identification Number below.
1. TAXPAYER IDENTIFICATION NUMBER. Enter your taxpayer
identification number in the appropriate space. For most individual taxpayers,
this is the social security number.
____________________________________
Taxpayer Identification Number
2. BACKUP WITHHOLDING. CHECK THE BOX if you are NOT subject to
backup withholding under the provisions of Section 3406(a)(l)(C) of the Internal
Revenue Code.
[X] If I am not subject to backup withholding under the provisions
of Section 3406(a)(l)(C) of the Internal Revenue Code.
NOTE: You are subject to backup withholding on reportable payments
if:
(a) You fail to furnish your taxpayer identification
number to the payor; or
(b) The Internal Revenue Service notifies the payor that
you furnished an incorrect taxpayer identification
number; or
(c) You are notified that you are subject to backup
withholding (under Section 3406(a)(l)(C) of the
Internal Revenue Code); or
(d) You fail to certify to the payor that you are not
subject to backup withholding under Section
3406(a)(l)(C) of the Internal Revenue Code.
3. CERTIFICATION. Under penalties of perjury, and by executing
the signature page which immediately follows this page, I certify that the
information provided in this Payer's Request for Tax Identification Number is
true, correct and complete.
Page 11
SIGNATURE PAGE
Investor represents and warrants that (a) all the information contained
herein is complete and accurate and contains no material omissions and may be
relied upon by the Company, and (b) Investor will notify the Company in writing
immediately of any change in any of such information which occurs prior to the
closing.
IN WITNESS WHEREOF, Investor has executed this Subscription Agreement
on the date first above written.
INVESTOR:
(If an Individual)
____________________________________________
(Signature of Investor)
(If a Business Entity)
/s/ Xxxx Xxxxx
--------------------------------------------
By: XXXX XXXXX
Its: PRESIDENT
The foregoing offer is hereby accepted by Syndicated Food Service
International, Inc., this 25th day of August, 2003.
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx, Xx.
President & Chief Executive Officer
Page 12
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE COMMON STOCK ISSUABLE UPON
EXERCISE OF THE WARRANTS HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES OR BLUE SKY LAWS OF ANY
STATE AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES OR BLUE SKY LAWS OR IF AN
EXEMPTION FROM SUCH REGISTRATION OR QUALIFICATION IS APPLICABLE.
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
Incorporated Under the Laws of the State of Florida
Warrant # 02-001AA 500,000 Common Stock
Purchase Warrants
CERTIFICATE FOR COMMON STOCK PURCHASE WARRANTS
1. Warrant. This Warrant Certificate certifies that Chan
Capital, Ltd. or its registered assigns (the "Registered Holder"), is the
registered owner of the above indicated number of Warrants expiring on the
Expiration Date, as hereinafter defined. One (1) Warrant entitles the Registered
Holder to purchase one (1) share of the Common Stock, $.001 par value (a
"Share"), of Syndicated Food Service International, Inc., a Florida Corporation
(the "Company"), from the Company at a purchase price of twenty five cents
($0.25) per Share (the "Exercise Price") at any time during the Exercise Period,
as hereinafter defined, upon surrender of this Warrant Certificate with the
exercise form hereon duly completed and executed and accompanied by payment of
the Exercise Price at the principal office of the Company.
Upon due presentment for transfer or exchange of this Warrant Certificate at the
principal office of the Company, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued in exchange for this Warrant Certificate, subject to
the limitations provided herein, upon payment of any tax or governmental charge
imposed in connection with such transfer. Subject to the terms hereof, the
Company shall deliver Warrant Certificates in required whole number
denominations to Registered Holders in connection with any transfer or exchange
permitted hereunder.
2. Restrictive Legend. Each Warrant Certificate and each
certificate representing Shares issued upon exercise of a Warrant, unless such
Shares are then registered under the Securities Act of 1933, as amended (the
"Act"), shall bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES OR BLUE SKY LAWS OF ANY STATE AND MAY BE OFFERED AND
SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO RELEVANT PROVISIONS
OF FEDERAL AND STATE SECURITIES OR BLUE SKY LAWS OR IF AN EXEMPTION
FROM SUCH REGISTRATION OR QUALIFICATION IS APPLICABLE."
1
3. Exercise. Subject to the terms hereof, the Warrants, evidenced
by this Warrant Certificate, may be exercised at the Exercise Price in whole or
in part and at any time during the period (the "Exercise Period") commencing on
the date hereof and terminating at the close of business on June 30, 2004 (the
"Expiration Date"). The Exercise Period may be extended by the Company's Board
of Directors in its sole discretion.
A Warrant shall be deemed to have been exercised immediately prior to the close
of business on the date (the "Exercise Date") of the surrender to the Company at
its principal offices of this Warrant Certificate with the exercise form
attached hereto executed by the Registered Holder and accompanied by payment to
the Company, in cash or by official bank or certified check, of an amount equal
to the aggregate Exercise Price, in lawful money of the United States of
America.
The person entitled to receive the Shares issuable upon exercise of a Warrant or
Warrants ("Warrant Shares") shall be treated for all purposes as the holder of
such Warrant Shares as of the close of business on the Exercise Date. The
Company shall not be obligated to issue any fractional share interests in
Warrant Shares issuable or deliverable on the exercise of any Warrant or scrip
or cash with respect thereto, and such right to a fractional share shall be of
no value whatsoever. If more than one Warrant shall be exercised at one time by
the same Registered Holder, the number of full Shares which shall be issuable on
exercise thereof shall be computed on the basis of the aggregate number of full
shares issuable on such exercise.
The Company may deem and treat the Registered Holder of the Warrants at any time
as the absolute owner thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Warrants shall not entitle the
Registered Holder thereof to any of the rights of shareholders or to any
dividend declared on the Shares unless the Registered Holder shall have
exercised the Warrants and thereby purchased the Warrant Shares prior to the
record date for the determination of holders of Shares entitled to such dividend
or other right.
4. Redemption of Warrants by Company. The Company shall have the
right and option, upon 20 days prior written notice to each Registered Holder,
to call, redeem and acquire at the redemption price of $.01 per Warrant all of
the Warrants which remain outstanding and unexercised at the date fixed for
redemption (the "Redemption Date"). The Redemption Date shall be no less than 20
days after the notice date and the Registered Holders shall have the right
during the period immediately following the date of such notice and prior to the
Redemption Date to exercise the Warrants in accordance with Section 3 hereof.
5. Reservation of Shares and Payment of Taxes. The Company
covenants that it will at all times reserve and have available from its
authorized Common Stock such number of Shares as shall then be issuable on the
exercise of outstanding Warrants. The company covenants that all Warrant Shares
which shall be so issuable shall be duly and validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof.
The Registered Holder shall pay all documentary stamp or similar taxes and other
government charges that may be imposed with respect to the issuance, transfer or
delivery of any Warrant Shares on exercise of the Warrants. In the event the
Warrant Shares are to be delivered in a name other than the name of the
Registered Holder of the Warrant Certificate, no such delivery shall be made
unless the person requesting the same has paid the amount of any such taxes or
charges incident thereto.
6. Registration of Transfer. The Warrant Certificates may be
transferred in whole or in part, provided any such transfer complies with all
applicable federal and state securities laws and, if requested by the Company,
the Registered Holder delivers to the Company an opinion of counsel to that
effect, in form and substance reasonable acceptable to the Company and its
counsel. Warrant Certificates to be transferred shall be surrendered to the
Company at its principal office. The Company shall execute, issue and deliver
2
in exchange therefor the Warrant Certificate or Certificates which the
Registered Holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its principal office which shall
register Warrant Certificates and the transfer thereof. On due presentment of
any Warrant Certificate for registration of transfer at such office, the Company
shall execute, issue and deliver to the transferee or transferees a new Warrant
Certificate or Certificates representing an equal aggregate number of Warrants.
All Warrant Certificates presented for registration of transfer or exercise
shall be duly endorsed or be accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company. The Company may require payment
of a sum sufficient to cover any tax or other government charge that may be
imposed in connection therewith.
All Warrant Certificates so surrendered, or surrendered for exercise, or for
exchange in case of mutilated Warrant Certificates, shall be promptly canceled
by the Company and thereafter retained by the Company until the Expiration Date.
Prior to due presentment for registration of transfer thereof, the Company may
treat the Registered Holder of any Warrant Certificate as the absolute owner
thereof (notwithstanding any notations of ownership or writing thereon made by
anyone other than the Company), and the Company shall not be affected by any
notice to the contrary.
7. Loss or Mutilation. On receipt by the Company of evidence
satisfactory as to the ownership of and the loss, theft, destruction or
mutilation of this Warrant Certificate, the Company shall execute and deliver,
in lieu thereof, a new Warrant Certificate representing an equal aggregate
number of Warrants. In the case of loss, theft or destruction of any Warrant
Certificate, the individual requesting issuance of a new Warrant Certificate
shall be required to indemnify the Company in an amount satisfactory to the
Company. In the event a Warrant Certificate is mutilated, such Warrant
Certificate shall be surrendered and canceled by the Company prior to delivery
of a new Warrant Certificate. Applicants for a new Warrant Certificate shall
also comply with such other regulations and pay such other reasonable charges as
the Company may prescribe.
8. Adjustment of Shares. The number and kind of securities
issuable upon exercise of a Warrant shall be subject to adjustment from time to
time upon the happening of certain events, as follows:
(a) Stock Splits, Stock Combinations and Certain Stock
Dividends. If the Company shall at any time subdivide or combine its
outstanding Shares, or declare a dividend in Shares or other securities
of the Company convertible into or exchangeable for Shares, a Warrant
shall, after such subdivision or combination or after the record date
for such dividend, be exercisable for that number of Shares and other
securities of the Company that, the Registered Holder would have owned
immediately after such event with respect to the Shares and other
securities for which a Warrant may have been exercised immediately
before such event had the Warrant been exercised immediately before
such event. Any adjustment under this Section 8 (a) shall become
effective at the close of business on the date the subdivision,
combination or dividend becomes effective.
(b) Adjustment for Reorganization, Consolidation, Merger. In
case of any reorganization of the Company (or any other corporation the
stock or other securities of which are at the time receivable upon
exercise of a Warrant) or in case the Company (or any such other
corporation) shall merge into or with or consolidate with another
corporation or convey all or substantially all of its assets to another
corporation or enter into a business combination of any form as a
result of which the Shares or other securities receivable upon exercise
of a Warrant are converted into other stock or securities of the same
or another corporation, then and in each such case, the Registered
Holder of a Warrant, upon exercise of the purchase right at any time
after the consummation of such reorganization, consolidation, merger,
conveyance or combination (in each case, a "Sale
3
Transaction"), shall be entitled to receive, in lieu of the Shares or
other securities to which such Registered Holder would have been
entitled had he exercised the purchase right immediately prior thereto,
such stock and securities which such Registered Holder would have owned
immediately after such event with respect to the Shares and other
securities for which a Warrant may have been exercised immediate before
such event had the Warrant been exercised immediate prior to such
event; provided, however, that in the event of a Sale Transaction, the
Company shall have the right and option on ten (10) days prior notice
to the Registered Holder to call, redeem and acquire all Warrants which
remain outstanding and unexercised as of the date fixed for redemption
by Company in such notice at a price of $.01 per Warrant it, only if
the value of the Common Stock of the Company following the occurrence
of the Sale Transaction will equal or exceed $10.00 per share.
In each ease of an adjustment in the Shares or other securities receivable upon
the exercise of a Warrant, the Company shall promptly notify the Registered
Holder of such adjustment. Such notice shall set forth the facts upon which such
adjustment is based.
9. Reduction in Exercise Price at Company's Option. The Company's
Board of Directors may, in its sole discretion, reduce the Exercise Price of the
Warrants in effect at any time either for the life of the Warrants or any
shorter period of time determined by the Company's Board of Directors. The
Company shall promptly notify the Registered Holders of any such reduction in
the Exercise Price.
10. Piggyback Registration Rights. With respect to the Shares to
be issued upon exercise of the Warrants, the Registered Holder shall have
"piggyback" registration rights with respect to the Shares as follows:
(a) If the Company at any time within two (2) years following the
issuance of this Warrant proposes to register any of its securities
under the Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect
to registration statements on Form X-0, X-0 or other form not available
for registering the Shares issuable upon exercise of the Warrants,
which are collectively referred to as the "Eligible Shares", for sale
to the Public), it will give prompt written notice to the Registered
Holder of its intention to do so and of the proposed method of
distribution of such securities. Such "piggyback" registration rights
shall only be available if (1) the Warrants have not expired or (2) the
Warrants have been exercised in whole or in part and Shares have been
issued thereby. Upon the giving of any such notice by the Company to
register any of its securities as set forth above, the Company will use
its best efforts to cause the Eligible Shares to be covered by the
registration statement proposed to be filed by the Company to the
extent and under the conditions such registration is permitted under
the Act. In the event that any registration pursuant to this Section
10(a) shall be, in whole or in part, an underwritten public offering of
the Company's common stock, the number of Eligible Shares to be
included for an on behalf of all Registered Holders in such an
underwriting may be reduced if an to the extent that the managing
underwriter shall be of the reasonable opinion (a written copy of which
shall be sent to each Registered Holder) that the inclusion of some or
all of the Eligible Shares would materially adversely affect the
marketing of the securities to be sold by the Company therein.
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to above without thereby incurring any
liability to any Registered Holder, provided that the Company shall
nonetheless be obligated to pay all Registration Expenses (as defined
in (d) below) and Selling Expenses (as defined in (d) below) associated
with such withdrawn registration statement. The Company shall not be
required to effect more than one registration pursuant to this Section
10, provided that all of the Eligible Shares shall have been included
in such registration, and provided that in the event the Company
withdraws such registration statement, Registered
4
Holders shall continue to have the piggyback rights set forth in this
Section 10. The rights granted pursuant to the provisions of this
Section 10 are not transferable by the Registered Holder.
(b) The Company will use its best efforts to register or qualify
the Eligible Shares covered by such registration statement under the
securities or "blue sky" laws in such jurisdiction as the Registered
Holder shall reside at the time of registration, provided, however,
that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general
service of process in any such jurisdiction.
(c) The Registered Holder shall provide in writing to the Company
such information as the Company may reasonably request in writing in
connection with the registration of the Eligible Shares hereunder. The
Registered Holder and the Company understand and mutually agree to
indemnify and hold one another harmless as follows:
(i) The Company to indemnify and hold harmless the
Registered Holder within the meaning of Section 15 of the Act
as follows:
(A) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to which
the Registered Holder may become subject under the
Act or otherwise (1) that arise out of or are based
upon any untrue statement or alleged untrue statement
of a material fact thereto, or the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading or (2) that
arise our of or are based upon any untrue statement
or alleged untrue statement of a material fact
contained in any Prospectus or amendment or
supplement thereto, or the omission or alleged
omission to state therein a material fact necessary
in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading;
(B) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue
statement or alleged untrue statement, or any
omission or alleged omission contained in any
registration statement made pursuant or in accordance
with this Section 10; and
(C) against any and all expenses whatsoever, as
incurred (including reasonable fees and disbursements
of counsel), reasonable incurred in investigating,
preparing or defending against any litigation, or
investigation or proceeding by any governmental
agency or body, commenced or threatened, in each case
whether or not a party, or any claim whatsoever based
upon any such untrue statement or alleged untrue
statement or omission or alleged omission, to the
extent that any such expense is not paid under
subparagraph (A) or (B) above; provided, however,
that the indemnity provided pursuant to this Section
10(c) shall not apply with respect to any loss,
liability, claim, damage or expense that arises out
of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made
in reliance upon and in conformity with written
information furnished to the Company by the
Registered Holder expressly for use in any
registration statement pursuant to this Section (10).
5
(ii) The Registered Holder agrees to indemnify and hold
harmless the Company and its directors and officers, and each
Person, if any, who controls the Company within the meaning of
Section 15 of the Act, to the same extent as the indemnity
contained in Section (c)(i)(C)(i) above, but only insofar as
such loss, liability, claim, damage or expense arises out of
or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance on
and in conformity with written information furnished to the
Company by the Registered Holder for use in a registration
statement required to be made pursuant to this Section 10
relating to the Registered Holder's status as a selling
security holder.
(d) The Company will pay all Registration Expenses (as such term
is hereinafter defined) in connection with any registration statement
filed under this Section 10. All Selling Expenses (as such term is
hereafter defined) in connection with such registration statement shall
be born by the Registered Holder. For purposes of this Section 10(d),
the term "Registration Expenses" shall mean all registration and filing
fees, printing expenses, fees and disbursements of the Company's
counsel and independent public accountants for the Company and fees and
expenses incurred in connection with applying for listing and quotation
on any securities exchange or quotation service, fees and expenses
(including counsel fees) incurred in connection with complying with
state securities or "blue sky" laws, fees of the National Association
of Securities Dealers, Inc., transfer taxes, and fees of transfer
agents and registrars; the term "Selling Expenses" shall mean all
underwriting discounts and selling commissions applicable to the sale
of the Eligible Securities and fees and expenses of the Registered
Holder's counsel, if any.
11. Notices. All notices, demands, elections, or requests (however
characterized or described) required or authorized hereunder shall be deemed
given sufficiently if in writing and sent by registered or certified mail,
return receipt requested and postage prepaid, by a nationally recognized
overnight courier, delivery charges prepaid, or by facsimile or telegram to the
Company, at:
11830 Windcreek Overlook
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Xx., Chief Executive Officer,
and of the Registered Holder, at the address of such Registered Holder as set
forth on the books maintained by the Company.
12. General Provisions. This Warrant Certificate shall be
construed and enforced in accordance with, and governed by, the laws of the
State of Florida and venue for any proceeding arising from or in connection
herewith shall be in the state and federal courts of Florida. Except as
otherwise expressly stated herein, time is of the essence in performing
hereunder. The headings of this Warrant Certificate are for convenience of
reference and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly
executed as of the _ day of______________, 2002.
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
BY: /s/ Xxxxxx X. Xxxxx Xx.
----------------------------------------
XXXXXX X. XXXXX, XX., CHIEF EXECUTIVE OFFICER
6
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM- As tenants in common UNIF GIFT MIN ACT
XXXXXXX- As tenants by the entireties Custodian
JR TEN- As joint tenants with right or survivorship (Cust) (Minor)
and not as tenants in common under Uniform Gifts to Minors
Act________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF ASSIGNMENT
(To be Executed by the Registered Holder if he
Desires to Assign Warrants Evidenced by the
Within Warrant Certificate)
FOR VALUE RECEIVED__________________________________________ hereby sells,
assigns and transfers unto _____________________________________________________
(________) Warrants, evidenced by the within Warrant Certificate, and does
hereby irrevocable constitute and appoint_________________________ Attorney to
transfer the said Warrants evidenced by the within Warrant Certificate on the
books of the Company, with full power of substitution.
DATE: _____________________ _____________________________
SIGNATURE
NOTICE: The above signature must correspond with name as written upon the face
of the Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever.
SIGNATURE GUARANTEED: ________________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE OF THE
FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
7
FORM OF ELECTION TO PURCHASE
(To be Executed by the Registered Holder if he Desires to Exercise
Warrants Evidenced by the Warrant Certificate)
TO: SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
The undersigned hereby irrevocable elects to
exercise__________________________________ (____________________) Warrants,
evidenced by the within Warrant Certificate for, and to purchase thereunder,
___________________________________________ (__________________________) full
shares of Common Stock issuable upon exercise of said Warrants and delivery of $
__________and any applicable taxes.
The undersigned requests that certificates for such shares be issued in
the name of:
______________________________________________
(PLEASE PRINT NAME AND ADDRESS)
______________________________________________
______________________________________________
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
If said number of Warrants shall not be all the Warrants evidenced by
the within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised by issued in the name of
and delivered to:
______________________________________________
(PLEASE PRINT NAME AND ADDRESS)
______________________________________________
______________________________________________
(SIGNATURES CONTINUED ON THE FOLLOWING PAGE)
8
DATED:_______________ SIGNATURE:______________________________
NOTICE: The above signature must correspond with the name as written upon the
face of the within Warrant Certificate in every particular, without
alternation or enlargement or any change whatsoever, or if singed by
any other person the Form of Assignment hereon must be duly executed
and if the certificate representing the shares or any Warrant
Certificate representing Warrants not exercised is to be registered in
a name other than that in which the within Warrant Certificate is
registered, the signature of the Registered Holder hereof must be
guaranteed.
SIGNATURE GUARANTEED: ____________________________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE OF THE
FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
9
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE COMMON STOCK ISSUABLE UPON
EXERCISE OF THE WARRANTS HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES OR BLUE SKY LAWS OF ANY
STATE AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES OR BLUE SKY LAWS OR IF AN
EXEMPTION FROM SUCH REGISTRATION OR QUALIFICATION IS APPLICABLE.
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
Incorporated Under the Laws of the State of Florida
Warrant # 02-002AA 2,000,000 Common Stock
Purchase Warrants
CERTIFICATE FOR COMMON STOCK
PURCHASE WARRANTS
1. Warrant. This Warrant Certificate certifies that Ming
Management Ltd. or its registered assigns (the "Registered Holder"), is the
registered owner of the above indicated number of Warrants expiring on the
Expiration Date, as hereinafter defined. One (1) Warrant entitles the Registered
Holder to purchase one (1) share of the Common Stock, $.001 par value (a
"Share"), of Syndicated Food Service International, Inc., a Florida Corporation
(the "Company"), from the Company at a purchase price of twenty five cents
($0.25) per Share (the "Exercise Price") at any time during the Exercise Period,
as hereinafter defined, upon surrender of this Warrant Certificate with the
exercise form hereon duly completed and executed and accompanied by payment of
the Exercise Price at the principal office of the Company.
Upon due presentment for transfer or exchange of this Warrant Certificate at the
principal office of the Company, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued in exchange for this Warrant Certificate, subject to
the limitations provided herein, upon payment of any tax or governmental charge
imposed in connection with such transfer. Subject to the terms hereof, the
Company shall deliver Warrant Certificates in required whole number
denominations to Registered Holders in connection with any transfer or exchange
permitted hereunder.
2. Restrictive Legend. Each Warrant Certificate and each
certificate representing Shares issued upon exercise of a Warrant, unless such
Shares are then registered under the Securities Act of 1933, as amended (the
"Act"), shall bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES OR BLUE SKY LAWS OF ANY STATE AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES OR BLUE SKY LAWS
OR IF AN EXEMPTION FROM SUCH REGISTRATION OR QUALIFICATION IS
APPLICABLE."
1
3. Exercise. Subject to the terms hereof, the Warrants, evidenced
by this Warrant Certificate, may be exercised at the Exercise Price in whole or
in part and at any time during the period (the "Exercise Period") commencing on
the date hereof and terminating at the close of business on June 30, 2004 (the
"Expiration Date"). The Exercise Period may be extended by the Company's Board
of Directors in its sole discretion.
A Warrant shall be deemed to have been exercised immediately prior to the close
of business on the date (the "Exercise Date") of the surrender to the Company at
its principal offices of this Warrant Certificate with the exercise form
attached hereto executed by the Registered Holder and accompanied by payment to
the Company, in cash or by official bank or certified check, of an amount equal
to the aggregate Exercise Price, in lawful money of the United States of
America.
The person entitled to receive the Shares issuable upon exercise of a Warrant or
Warrants ("Warrant Shares") shall be treated for all purposes as the holder of
such Warrant Shares as of the close of business on the Exercise Date. The
Company shall not be obligated to issue any fractional share interests in
Warrant Shares issuable or deliverable on the exercise of any Warrant or scrip
or cash with respect thereto, and such right to a fractional share shall be of
no value whatsoever. If more than one Warrant shall be exercised at one time by
the same Registered Holder, the number of full Shares which shall be issuable on
exercise thereof shall be computed on the basis of the aggregate number of full
shares issuable on such exercise.
The Company may deem and treat the Registered Holder of the Warrants at any time
as the absolute owner thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Warrants shall not entitle the
Registered Holder thereof to any of the rights of shareholders or to any
dividend declared on the Shares unless the Registered Holder shall have
exercised the Warrants and thereby purchased the Warrant Shares prior to the
record date for the determination of holders of Shares entitled to such dividend
or other right.
4. Redemption of Warrants by Company. The Company shall have the
right and option, upon 20 days prior written notice to each Registered Holder,
to call, redeem and acquire at the redemption price of $.01 per Warrant all of
the Warrants which remain outstanding and unexercised at the date fixed for
redemption (the "Redemption Date"). The Redemption Date shall be no less than 20
days after the notice date and the Registered Holders shall have the right
during the period immediately following the date of such notice and prior to the
Redemption Date to exercise the Warrants in accordance with Section 3 hereof.
5. Reservation of Shares and Payment of Taxes. The Company
covenants that it will at all times reserve and have available from its
authorized Common Stock such number of Shares as shall then be issuable on the
exercise of outstanding Warrants. The company covenants that all Warrant Shares
which shall be so issuable shall be duly and validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof.
The Registered Holder shall pay all documentary stamp or similar taxes and other
government charges that may be imposed with respect to the issuance, transfer or
delivery of any Warrant Shares on exercise of the Warrants. In the event the
Warrant Shares are to be delivered in a name other than the name of the
Registered Holder of the Warrant Certificate, no such delivery shall be made
unless the person requesting the same has paid the amount of any such taxes or
charges incident thereto.
6. Registration of Transfer. The Warrant Certificates may be
transferred in whole or in part, provided any such transfer complies with all
applicable federal and state securities laws and, if requested by the Company,
the Registered Holder delivers to the Company an opinion of counsel to that
effect, in form and substance reasonable acceptable to the Company and its
counsel. Warrant Certificates to be transferred shall be surrendered to the
Company at its principal office. The Company shall execute, issue and deliver
2
in exchange therefor the Warrant Certificate or Certificates which the
Registered Holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its principal office which shall
register Warrant Certificates and the transfer thereof. On due presentment of
any Warrant Certificate for registration of transfer at such office, the Company
shall execute, issue and deliver to the transferee or transferees a new Warrant
Certificate or Certificates representing an equal aggregate number of Warrants.
All Warrant Certificates presented for registration of transfer or exercise
shall be duly endorsed or be accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company. The Company may require payment
of a sum sufficient to cover any tax or other government charge that may be
imposed in connection therewith.
All Warrant Certificates so surrendered, or surrendered for exercise, or for
exchange in case of mutilated Warrant Certificates, shall be promptly canceled
by the Company and thereafter retained by the Company until the Expiration Date.
Prior to due presentment for registration of transfer thereof, the Company may
treat the Registered Holder of any Warrant Certificate as the absolute owner
thereof (notwithstanding any notations of ownership or writing thereon made by
anyone other than the Company), and the Company shall not be affected by any
notice to the contrary.
7. Loss or Mutilation. On receipt by the Company of evidence
satisfactory as to the ownership of and the loss, theft, destruction or
mutilation of this Warrant Certificate, the Company shall execute and deliver,
in lieu thereof, a new Warrant Certificate representing an equal aggregate
number of Warrants. In the case of loss, theft or destruction of any Warrant
Certificate, the individual requesting issuance of a new Warrant Certificate
shall be required to indemnify the Company in an amount satisfactory to the
Company. In the event a Warrant Certificate is mutilated, such Warrant
Certificate shall be surrendered and canceled by the Company prior to delivery
of a new Warrant Certificate. Applicants for a new Warrant Certificate shall
also comply with such other regulations and pay such other reasonable charges as
the Company may prescribe.
8. Adjustment of Shares. The number and kind of securities
issuable upon exercise of a Warrant shall be subject to adjustment from time to
time upon the happening of certain events, as follows:
(a) Stock Splits, Stock Combinations and Certain Stock
Dividends. If the Company shall at any time subdivide or combine its
outstanding Shares, or declare a dividend in Shares or other securities
of the Company convertible into or exchangeable for Shares, a Warrant
shall, after such subdivision or combination or after the record date
for such dividend, be exercisable for that number of Shares and other
securities of the Company that the Registered Holder would have owned
immediately after such event with respect to the Shares and other
securities for which a Warrant may have been exercised immediately
before such event had the Warrant been exercised immediately before
such event. Any adjustment under this Section 8 (a) shall become
effective at the close of business on the date the subdivision,
combination or dividend becomes effective.
(b) Adjustment for Reorganization, Consolidation, Merger. In
case of any reorganization of the Company (or any other corporation the
stock or other securities of which are at the time receivable upon
exercise of a Warrant) or in case the Company (or any such other
corporation) shall merge into or with or consolidate with another
corporation or convey all or substantially all of its assets to another
corporation or enter into a business combination of any form as a
result of which the Shares or other securities receivable upon exercise
of a Warrant are converted into other stock or securities of the same
or another corporation, then and in each such case, the Registered
Holder of a Warrant, upon exercise of the purchase right at any time
after the consummation of such reorganization, consolidation, merger,
conveyance or combination (in each case, a "Sale
3
Transaction"), shall be entitled to receive, in lieu of the Shares or
other securities to which such Registered Holder would have been
entitled had he exercised the purchase right immediately prior thereto,
such stock and securities which such Registered Holder would have owned
immediately after such event with respect to the Shares and other
securities for which a Warrant may have been exercised immediate before
such event had the Warrant been exercised immediate prior to such
event; provided, however, that in the event of a Sale Transaction, the
Company shall have the right and option on ten (10) days prior notice
to the Registered Holder to call, redeem and acquire all Warrants which
remain outstanding and unexercised as of the date fixed for redemption
by Company in such notice at a price of $.01 per Warrant it, only if
the value of the Common Stock of the Company following the occurrence
of the Sale Transaction will equal or exceed $10.00 per share.
In each case of an adjustment in the Shares or other securities receivable upon
the exercise of a Warrant, the Company shall promptly notify the Registered
Holder of such adjustment. Such notice shall set forth the facts upon which such
adjustment is based.
9. Reduction in Exercise Price at Company's Option. The Company's
Board of Directors may, in its sole discretion, reduce the Exercise Price of the
Warrants in effect at any time either for the life of the Warrants or any
shorter period of time determined by the Company's Board of Directors. The
Company shall promptly notify the Registered Holders of any such reduction in
the Exercise Price.
10. Piggyback Registration Rights. With respect to the Shares to
be issued upon exercise of the Warrants, the Registered Holder shall have
"piggyback" registration rights with respect to the Shares as follows:
(a) If the Company at any time within two (2) years following the
issuance of this Warrant proposes to register any of its securities
under the Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect
to registration statements on Form X-0, X-0 or other form not available
for registering the Shares issuable upon exercise of the Warrants,
which are collectively referred to as the "Eligible Shares", for sale
to the Public), it will give prompt written notice to the Registered
Holder of its intention to do so and of the proposed method of
distribution of such securities. Such "piggyback" registration rights
shall only be available if (1) the Warrants have not expired or (2) the
Warrants have been exercised in whole or in part and Shares have been
issued thereby. Upon the giving of any such notice by the Company to
register any of its securities as set forth above, the Company will use
its best efforts to cause the Eligible Shares to be covered by the
registration statement proposed to be filed by the Company to the
extent and under the conditions such registration is permitted under
the Act. In the event that any registration pursuant to this Section
10(a) shall be, in whole or in part, an underwritten public offering of
the Company's common stock, the number of Eligible Shares to be
included for an on behalf of all Registered Holders in such an
underwriting may be reduced if an to the extent that the managing
underwriter shall be of the reasonable opinion (a written copy of which
shall be sent to each Registered Holder) that the inclusion of some or
all of the Eligible Shares would materially adversely affect the
marketing of the securities to be sold by the Company therein.
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to above without thereby incurring any
liability to any Registered Holder, provided that the Company shall
nonetheless be obligated to pay all Registration Expenses (as defined
in (d) below) and Selling Expenses (as defined in (d) below) associated
with such withdrawn registration statement. The Company shall not be
required to effect more than one registration pursuant to this Section
10, provided that all of the Eligible Shares shall have been included
in such registration, and provided that in the event the Company
withdraws such registration statement, Registered
4
Holders shall continue to have the piggyback rights set forth in this
Section 10. The rights granted pursuant to the provisions of this
Section 10 are not transferable by the Registered Holder.
(b) The Company will use its best efforts to register or qualify
the Eligible Shares covered by such registration statement under the
securities or "blue sky" laws in such jurisdiction as the Registered
Holder shall reside at the time of registration, provided, however,
that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general
service of process in any such jurisdiction.
(c) The Registered Holder shall provide in writing to the Company
such information as the Company may reasonably request in writing in
connection with the registration of the Eligible Shares hereunder. The
Registered Holder and the Company understand and mutually agree to
indemnify and hold one another harmless as follows:
(i) The Company to indemnify and hold harmless the
Registered Holder within the meaning of Section 15 of the Act
as follows:
(A) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to which
the Registered Holder may become subject under the
Act or otherwise (1) that arise out of or are based
upon any untrue statement or alleged untrue statement
of a material fact thereto, or the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading or (2) that
arise our of or are based upon any untrue statement
or alleged untrue statement of a material fact
contained in any Prospectus or amendment or
supplement thereto, or the omission or alleged
omission to state therein a material fact necessary
in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading;
(B) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue
statement or alleged untrue statement, or any
omission or alleged omission contained in any
registration statement made pursuant or in accordance
with this Section 10; and
(C) against any and all expenses whatsoever, as
incurred (including reasonable fees and disbursements
of counsel), reasonable incurred in investigating,
preparing or defending against any litigation, or
investigation or proceeding by any governmental
agency or body, commenced or threatened, in each case
whether or not a party, or any claim whatsoever based
upon any such untrue statement or alleged untrue
statement or omission or alleged omission, to the
extent that any such expense is not paid under
subparagraph (A) or (B) above; provided, however,
that the indemnity provided pursuant to this Section
10(c) shall not apply with respect to any loss,
liability, claim, damage or expense that arises out
of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made
in reliance upon and in conformity with written
information furnished to the Company by the
Registered Holder expressly for use in any
registration statement pursuant to this Section (10).
5
(ii) The Registered Holder agrees to indemnify and hold
harmless the Company and its directors and officers, and each
Person, if any, who controls the Company within the meaning of
Section 15 of the Act, to the same extent as the indemnity
contained in Section (c)(i)(C)(i) above, but only insofar as
such loss, liability, claim, damage or expense arises out of
or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance on
and in conformity with written information furnished to the
Company by the Registered Holder for use in a registration
statement required to be made pursuant to this Section 10
relating to the Registered Holder's status as a selling
security holder.
(d) The Company will pay all Registration Expenses (as such term
is hereinafter defined) in connection with any registration statement
filed under this Section 10. All Selling Expenses (as such term is
hereafter defined) in connection with such registration statement shall
be born by the Registered Holder. For purposes of this Section 10(d),
the term "Registration Expenses" shall mean all registration and filing
fees, printing expenses, fees and disbursements of the Company's
counsel and independent public accountants for the Company and fees and
expenses incurred in connection with applying for listing and quotation
on any securities exchange or quotation service, fees and expenses
(including counsel fees) incurred in connection with complying with
state securities or "blue sky" laws, fees of the National Association
of Securities Dealers, Inc., transfer taxes, and fees of transfer
agents and registrars; the term "Selling Expenses" shall mean all
underwriting discounts and selling commissions applicable to the sale
of the Eligible Securities and fees and expenses of the Registered
Holder's counsel, if any.
11. Notices. All notices, demands, elections, or requests (however
characterized or described) required or authorized hereunder shall be deemed
given sufficiently if in writing and sent by registered or certified mail,
return receipt requested and postage prepaid, by a nationally recognized
overnight courier, delivery charges prepaid, or by facsimile or telegram to the
Company, at:
11830 Windcreek Overlook
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Xx., Chief Executive Officer,
and of the Registered Holder, at the address of such Registered Holder as set
forth on the books maintained by the Company.
12. General Provisions. This Warrant Certificate shall be
construed and enforced in accordance with, and governed by, the laws of the
State of Florida and venue for any proceeding arising from or in connection
herewith shall be in the state and federal courts of Florida. Except as
otherwise expressly stated herein, time is of the essence in performing
hereunder. The headings of this Warrant Certificate are for convenience of
reference and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly
executed as of the _day of______________, 2002.
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
BY: /s/ Xxxxxx X. Xxxxx Xx.
--------------------------------
XXXXXX X. XXXXX, XX., CHIEF EXECUTIVE OFFICER
6
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM- As tenants in common UNIF GIFT MIN ACT
XXXXXXX - As tenants by the entireties Custodian
JR TEN- As joint tenants with right (Cust) (Minor)
or survivorship and not as tenants under Uniform Gifts to Minors
in common Act________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF ASSIGNMENT
(To be Executed by the Registered Holder if he
Desires to Assign Warrants Evidenced by the
Within Warrant Certificate)
FOR VALUE RECEIVED__________________________________ hereby sells, assigns and
transfers unto _____________________________________________________(_________)
Warrants, evidenced by the within Warrant Certificate, and does hereby
irrevocable constitute and appoint_____________________________Attorney to
transfer the said Warrants evidenced by the within Warrant Certificate on the
books of the Company, with full power of substitution.
DATE: _____________________ ________________________________
SIGNATURE
NOTICE: The above signature must correspond with name as written upon the face
of the Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever.
SIGNATURE GUARANTEED: ___________________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE OF THE
FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
7
FORM OF ELECTION TO PURCHASE
(To be Executed by the Registered Holder if he Desires to Exercise
Warrants Evidenced by the Warrant Certificate)
TO: SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
The undersigned hereby irrevocable elects to exercise
__________________________________________ (_______ ) Warrants, evidenced by the
within Warrant Certificate for, and to purchase thereunder,
____________________________________________ (____________ ) full shares of
Common Stock issuable upon exercise of said Warrants and delivery of
$__________________ and any applicable taxes.
The undersigned requests that certificates for such shares be issued in
the name of:
______________________________________________
(PLEASE PRINT NAME AND ADDRESS)
______________________________________________
______________________________________________
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
If said number of Warrants shall not be all the Warrants evidenced by
the within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised by issued in the name of
and delivered to:
____________________________________________
(PLEASE PRINT NAME AND ADDRESS)
____________________________________________
____________________________________________
(SIGNATURES CONTINUED ON THE FOLLOWING PAGE)
8
DATED: ________ SIGNATURE: _______________________
NOTICE: The above signature must correspond with the name as written upon the
face of the within Warrant Certificate in every particular, without
alternation or enlargement or any change whatsoever, or if singed by
any other person the Form of Assignment hereon must be duly executed
and if the certificate representing the shares or any Warrant
Certificate representing Warrants not exercised is to be registered in
a name other than that in which the within Warrant Certificate is
registered, the signature of the Registered Holder hereof must be
guaranteed.
SIGNATURE GUARANTEED: ___________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE OF THE
FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
9
