Exhibit 4.1
FORM OF COMMON STOCK PURCHASE WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
COMMON STOCK PURCHASE WARRANT
UNIVERSAL FOOD & BEVERAGE COMPANY
Date of Original Issuance: March 2, 2005 Certificate No. W-____
THIS CERTIFIES that, for value received, ____________, or
registered assigns (the "Registered Holder"), is entitled, upon the terms and
subject to the conditions hereinafter set forth, to acquire from Universal Food
& Beverage Company, a Nevada corporation (the "Company"), a total of _______
(_______) shares of common stock, par value $.001 per share ("Common Stock"), or
its equivalent, however designated, of the Company (the "Warrant Shares"), at a
price per share (the "Exercise Price") as set forth in the next sentence. During
the period from the date of this Agreement until and on May 31, 2005, the
Exercise Price for the Warrant Shares is $2.00 per share, representing an
aggregate purchase price of _____ Dollars ($______) for all Warrant Shares;
after May 31, 2005, the Exercise Price for the Warrant Shares will be $2.50 per
share, representing an aggregate purchase price of _____________ Dollars
($_______) for all Warrant Shares.
The Exercise Price and number of Warrant Shares (and the
amount and kind of other securities) for which this Warrant is exercisable shall
be subject to adjustment as provided herein, and all references to "Warrant
Stock" and "Exercise Price" herein shall be deemed to include any such
adjustment.
SECTION 1. Exercise of Warrant.
1A. Exercise Period. The purchase rights represented by this Warrant
may be exercised, in whole or in part, at any time and from time to time during
the period (the "Exercise Period") beginning on the Date of Original Issuance
and ending at 5:00 p.m., Chicago, Illinois local time, on the date of the first
anniversary of the Date of Original Issuance or, if such day is not a business
day, at 5:00 p.m., Chicago, Illinois local time, on the next succeeding business
day.
1B. Exercise Procedure.
(i) This Warrant, in whole or in part, as applicable,
shall be deemed to have been exercised when all of the following items have been
delivered to the Company (the "Exercise Time"):
(a) a completed Exercise Agreement in the
form set forth in Exhibit A hereto, as described in Section 1C below, executed
by the person exercising all or part of the purchase rights represented by this
Warrant (the "Purchaser");
(b) this Warrant;
(c) if the Purchaser is not the Registered
Holder in the Company's records maintained pursuant to Section 7 hereof, an
Assignment or Assignments in the form set forth in Exhibit B hereto evidencing
the assignment of this Warrant to the Purchaser; and
(d) a check payable to the Company in an
amount equal to the product of the Exercise Price multiplied by the number of
Warrant Shares being purchased upon such exercise (the "Aggregate Exercise
Price").
(ii) Certificates for Warrant Shares purchased upon
exercise of this Warrant shall be delivered by the Company to the Purchaser
within a reasonable time after the date of the Exercise Time together with any
cash payable in lieu of a fraction of a share pursuant to Section 8 hereof.
Unless this Warrant has expired or all of the purchase rights represented hereby
have been exercised, the Company shall prepare a new Warrant, substantially
identical hereto, representing the rights formerly represented by this Warrant
which have not expired or been exercised and shall deliver such new Warrant to
the person designated for delivery in the Exercise Agreement concurrently with
the delivery of certificates for Warrant Shares.
(iii) The Warrant Shares issuable upon the exercise
of this Warrant shall be deemed to have been issued to the Purchaser at the
Exercise Time, and the Purchaser shall be deemed for all purposes to have become
the record holder of such Warrant Shares at the Exercise Time.
(iv) The issuance of certificates for Warrant Shares
upon exercise of this Warrant shall be made without charge to the Registered
Holder for any issuance tax in respect thereof or other cost incurred by the
Company in connection with such exercise and the related issuance of Warrant
Shares, except for any taxes or charges payable in connection with the issuance
of Warrant Shares to any Person other than the Registered Holder.
(v) The Company shall not close its books against the
transfer of this Warrant or of any Warrant Shares issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant.
(vi) The Company shall at all times reserve and keep
available out of its authorized but unissued capital stock, solely for the
purpose of issuance upon the exercise of this Warrant, the maximum number of
Warrant Shares issuable upon the exercise of this Warrant. All Warrant Shares
which are so issuable shall, when issued and upon the payment of the applicable
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Exercise Price, be duly and validly issued, fully paid and nonassessable and
free from all taxes, liens and charges, except restrictions arising (A) under
federal and state securities laws, (B) not by or through the Company, or (C) by
agreement between the Company and the Registered Holder or its successors.
SECTION 2. Adjustment of Exercise Price and Number of Warrant
Shares. In order to prevent dilution of the rights granted under this Warrant,
the Exercise Price and the number of Warrant Shares or other securities
obtainable upon exercise of this Warrant shall be subject to adjustment from
time to time as provided in this Section 2.
2A. Adjustment for Stock Splits and Combinations. If the
Company at any time while this Warrant, or any portion hereof, remains
outstanding and unexpired, effects a subdivision of the outstanding Common
Stock, the Exercise Price in effect immediately prior to that subdivision shall
be proportionately decreased. Conversely, if the Company any time while this
Warrant, or any portion hereof, remains outstanding and unexpired, combines the
outstanding shares of Common Stock into a smaller number of shares, the Exercise
Price in effect immediately prior to the combination shall be proportionately
increased. Any adjustment under this Section 2A shall become effective at the
close of business on the date the subdivision or combination becomes effective.
2B. Adjustment for Stock Dividends and Distributions. If the
Company at any time while this Warrant, or any portion hereof, remains
outstanding and unexpired, makes, or fixes a record date for the determination
of holders of Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Common Stock, in each such event the Exercise
Price then in effect shall be decreased as of the time of such issuance or, in
the event such record date is fixed, as of the close of business on such record
date, by multiplying the Exercise Price then in effect by a fraction (1) the
numerator of which is the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (2) the denominator of which is the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such dividend or
distribution; provided, however, that if such record date is fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Exercise Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Exercise Price shall be
adjusted pursuant to this Section 2B to reflect the actual payment of such
dividend or distribution.
2C. Adjustments for Other Dividends and Distributions. If the
Company at any time while this Warrant, or any portion hereof, remains
outstanding and unexpired, makes, or fixes a record date for the determination
of holders of Common Stock entitled to receive a dividend or other distribution
(other than a dividend or distribution payable solely in shares of Common
Stock), in each such event provision shall be made so that the Registered Holder
shall receive upon exercise hereof, in addition to the number of Warrant Shares
receivable thereupon, the dividend or distribution which such Registered Holder
would have received had such exercise occurred immediately prior to such event.
2D. Adjustment for Reclassification, Exchange and
Substitution. If at any time while this Warrant, or any portion hereof, remains
outstanding and unexpired, the Warrant Shares issuable upon exercise of this
Warrant are changed into the same or a different number of shares of any class
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or classes of stock, whether by recapitalization, reclassification or otherwise
(other than a subdivision or combination of shares or stock dividend or a
reorganization, merger or consolidation provided for elsewhere in this Section
2), in any such event this Warrant shall thereafter represent the right to
receive upon exercise hereof the kind and amount of stock and other securities
and property receivable in connection with such recapitalization,
reclassification or other change with respect to the maximum number of Warrant
Shares issuable upon exercise of this Warrant immediately prior to such
recapitalization, reclassification or change, all subject to further adjustments
as provided herein or with respect to such other securities or property by the
terms thereof.
2E. Reorganizations, Mergers or Consolidations. If at any time
while this Warrant, or any portion hereof, remains outstanding and unexpired,
the Warrant Shares are converted into other securities or property, whether
pursuant to a reorganization, merger, consolidation or otherwise (other than a
recapitalization, subdivision, combination, reclassification, exchange or
substitution of shares provided for elsewhere in this Section 2) (collectively,
a "Reorganization"), as a part of such transaction, provision shall be made so
that this Warrant shall thereafter represent the right to receive upon exercise
hereof the number of shares of stock or other securities or property to which a
holder of the maximum number of Warrant Shares issuable upon exercise of this
Warrant immediately prior to such transaction would have been entitled in
connection with such transaction, subject to further adjustments as provided
herein or with respect to such other securities or property by the terms
thereof. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 2 with respect to the rights of
the Registered Holder of this Warrant after such transaction so that the
provisions of this Section 2 (including adjustment of the Exercise Price and the
number of Warrant Shares issuable upon exercise of this Warrant) shall be
applicable after such event and be as nearly equivalent as practicable.
2F. Certificate of Adjustment. In each case of an adjustment
or readjustment of the Exercise Price, the Company, at its expense, shall
compute such adjustment or readjustment in accordance with the provisions hereof
and prepare a certificate showing such adjustment or readjustment, and shall
mail such certificate, by first class mail, postage prepaid, to the Registered
Holder of this Warrant. The certificate shall set forth such adjustment or
readjustment, showing in reasonable detail the facts upon which such adjustment
or readjustment is based.
2G. Adjustment of Number of Warrant Shares. Upon each
adjustment of the Exercise Price hereunder, the number of Warrant Shares
acquirable upon exercise of this Warrant shall be adjusted to equal the number
of shares determined by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares acquirable upon
exercise of this Warrant immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment.
2H. Notices. The Company shall give written notice to the
Registered Holder of this Warrant at least ten (10) days prior to the date on
which the Company closes its books or takes a record (A) with respect to any
dividend or distribution upon the Common Stock, and (B) with respect to any pro
rata subscription offer to holders of Common Stock, and (C) for determining
rights to vote with respect to any transaction described in Section 2D or 2E
hereof or any dissolution or liquidation of the Company.
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SECTION 3. Transferability. This Warrant and the purchase
rights represented hereby are transferable, in whole or in part, without charge
to the Registered Holder upon surrender of this Warrant with a properly executed
assignment (in the Form of Exhibit B hereto) at the principal office of the
Company.
SECTION 4. Warrant Exchangeable for Different Denominations.
This Warrant is exchangeable, upon the surrender hereof by the Registered Holder
at the principal office of the Company, for new Warrants of like tenor
representing in the aggregate the purchase rights hereunder, and each of such
new Warrants shall represent such portion of such rights as is designated by the
Registered Holder at the time of such surrender.
SECTION 5. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing this Warrant, and in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably satisfactory to the Company
(provided that if the Registered Holder is a financial institution or other
institutional investor its own agreement shall be satisfactory), or, in the case
of any such mutilation upon surrender of such certificate, the Company shall (at
its expense) execute and deliver in lieu of such Warrant certificate a new
certificate of like kind representing the same rights represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
SECTION 6. Amendment and Waiver. Except as otherwise provided
herein, the provisions of this Warrant may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the prior written consent of
the holders of a majority of the then-outstanding Warrants. Any amendment or
waiver so effected shall be binding on each existing and future holder of
Warrants.
SECTION 7. Warrant Register. The Company shall maintain at its
principal executive offices books for the registration of ownership and transfer
of this Warrant. The Company may deem and treat the Registered Holder as the
absolute owner hereof (notwithstanding any notation of ownership or other
writing thereon made by anyone) for all purposes and shall not be affected by
any notice to the contrary.
SECTION 8. Investment Intent. By accepting this Warrant, the
Registered Holder represents that it is acquiring this Warrant for investment
purposes only and not with a view to, or for sale in connection with, any
distribution hereof.
SECTION 9. Fractions of Shares. No fractional shares or scrip
representing fractional shares shall be issued upon exercise or conversion of
this Warrant in whole or in part. As to any fraction of a share called for upon
the exercise or conversion of this Warrant, the Company shall make a cash
payment in respect of such fraction in an amount equal to the same fraction of
the fair market value of a Warrant Share on the date of such exercise or
conversion.
SECTION 10. No Stockholder Rights. This Warrant shall not
entitle the Registered Holder to any voting rights or any other rights as a
stockholder of the Company or to any other rights except the rights stated
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herein; and no dividend or interest shall be payable or shall accrue in respect
of this Warrant or the Warrant Shares during the Exercise Period.
SECTION 11. Notices. Unless otherwise provided, any notice
under this Warrant shall be given in writing and shall be deemed effectively
given (a) upon personal delivery to the party to be notified, (b) upon
confirmation of receipt by fax by the party to be notified, (c) one business day
after deposit with a reputable overnight courier, prepaid for overnight delivery
and addressed as set forth in below, or (d) three (3) days after deposit with
the United States Post Office, postage prepaid, registered or certified with
return receipt requested and addressed to the party to be notified at the
address indicated below, or at such other address as such party may designate by
ten (10) days'advance written notice to the other party given in the foregoing
manner.
If to the Holder: ___________________________
___________________________
___________________________
Facsimile:_________________
If to the Company: Universal Food & Beverage Company
0000 Xxxxxxxx Xxxxx
Xx. Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
SECTION 12. Governing Law. This Warrant shall be governed by
and construed in accordance with the Delaware General Corporation Law as to
matters within the scope thereof and under the law of the State of Illinois as
to all other matters, without giving effect to any choice of law or conflict of
law provisions.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and to be
dated the date hereof.
UNIVERSAL FOOD & BEVERAGE COMPANY
a Nevada corporation
By:
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Xxxxx Xxxxxx, Chief Executive Officer
Attest:
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Xxxxx Xxxxxxx, Secretary
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EXHIBIT A
EXERCISE AGREEMENT
To: Dated:
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The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W-____), hereby subscribes for the purchase of
____________ Warrant Shares covered by such Warrant and makes payment herewith
in full therefor at the price per share provided by such Warrant.
The undersigned requests that a certificate for such Warrant
Shares be registered in the name of whose address is
______________________________________ and whose social security number or other
identifying number is ___________, and that such certificate be delivered to
_________________ whose address is ___________________________________. If said
number of Warrant Shares is less than all of the Warrant Shares purchasable
hereunder, the undersigned requests that a new Warrant evidencing the right to
purchase the remaining balance of Warrant Shares for which this Warrant is
exercisable be registered in the name of __________________ whose address is
_________________________ and whose social security number or other identifying
number is _________, and that such certificate be delivered to ______________
whose address is
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Signature:
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Address:
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EXHIBIT B
ASSIGNMENT
FOR VALUE RECEIVED, hereby sells, assigns and transfers all of the
rights of the undersigned under the attached Warrant (Certificate No. W- ) with
respect to the number - of the Warrant Shares covered thereby set forth below,
unto:
Names of Assignee Address No. of Warrant Shares
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Dated: Signature:
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Witness:
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