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EXHIBIT 3
NO SALE, OFFER TO SELL OR TRANSFER OF THESE SECURITIES SHALL BE MADE WITHOUT (i)
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH SALE,
OFFER, OR TRANSFER MAY BE MADE WITHOUT REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (ii) SUCH REGISTRATION OR
QUALIFICATION.
BIG BUCK BREWERY & STEAKHOUSE, INC.
COMMON STOCK PURCHASE WARRANT
Big Buck Brewery & Steakhouse, Inc., a Michigan corporation (the
"Company"), hereby agrees that, for value received, XXXXX COUNTY EMPLOYEES'
RETIREMENT SYSTEM or its assigns, is entitled, subject to the terms set forth
below, to purchase from the Company at any time or from time to time before 5:00
p.m., Minneapolis, Minnesota time, on February 27, 2004, Two Hundred Thousand
(200,000) shares (the "Warrant Shares") of the $.01 par value common stock of
the Company (the "Common Stock") at an exercise price of Two Dollars and No
Cents ($2.00) per share.
1. Exercise of Warrant; Cashless Exercise.
(a) Exercise of Warrant. The purchase rights granted by
this Warrant shall be exercised by the holder surrendering this
Warrant with the Warrant Exercise Form attached hereto duly executed
by such holder, to the Company at its principal office, accompanied
by payment, in cash, by xxxxxxx's check payable to the order of the
Company or by wire transfer to an account specified by the Company,
of the purchase price payable in respect of the Warrant Shares being
purchased. If less than all of the Warrant Shares purchasable
hereunder are purchased, the Company will, upon such exercise,
execute and deliver to the holder hereof a new Warrant evidencing the
number of Warrant Shares not so purchased. As soon as practicable
after the exercise of this Warrant and payment of the purchase price,
the Company will cause to be issued in the name of and delivered to
the holder hereof, or as such holder may direct, a certificate or
certificates representing the Warrant Shares purchased upon such
exercise.
(b) Cashless Exercise. In lieu of payment of cash upon
exercise of this Warrant, the holder may effect a "cashless" exercise
of the Warrant by surrendering this Warrant with the Warrant Exercise
Form attached hereto duly executed by such holder to the Company at
its principal office. The exercise price for the Securities to be
acquired in the exchange shall be paid by the surrender, as indicated
in the Warrant Exercise Form of such additional number of Warrants as
equals the aggregate exercise price of the Warrants desired to be
exercised, divided by the difference obtained by subtracting the per
share exercise price of this Warrant from the Market Price of the
Warrant Shares. The "Market Price" is defined as the average of the
closing bid and ask prices for the Warrant Shares on the last date on
which Warrant Shares were traded prior to the date of the Warrant
Exercise Form which shall not be later than the date the Warrant
Exercise Form is given to the Company.
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(c) Legend. The Company may require that the Warrant Share
certificate or certificates contain on the face thereof a legend
substantially as follows:
No sale, offer to sell or transfer of the shares represented
by this certificate shall be made without (i) the opinion of
counsel reasonably satisfactory to the Company that such sale,
offer, or transfer may be made without registration or
qualification under the Securities Act and applicable state
securities laws or (ii) such registration or qualification.
2. Negotiability and Transfer. This Warrant is issued upon the
following terms, to which each holder hereof consents and agrees:
(a) This Warrant may not be sold, transferred, assigned or
hypothecated without (i) an opinion of counsel reasonably
satisfactory to the Company that such sale, transfer, assignment or
hypothecation may be made without registration or qualification under
the Securities Act and applicable state securities laws or (ii) such
registration or qualification.
(b) Until the Company receives notice of a transfer of
this Warrant, the Company may treat the registered holder of this
Warrant as absolute owner hereof for all purposes without being
affected.
(c) Each successive holder of this Warrant, or of any
portion of the rights represented hereby, shall be bound by and
receive the benefits of the terms, conditions and rights set forth
herein.
3. Antidilution Adjustments. If the Company shall at any time
hereafter subdivide or combine its outstanding shares of Common Stock, or
declare a dividend payable in Common Stock, the exercise price in effect
immediately prior to the subdivision, combination, or record date for such
dividend payable in Common Stock shall forthwith be proportionately increased,
in the case of combination, or proportionately decreased, in the case of
subdivision or declaration of a dividend payable in Common Stock, and the number
of Warrant Shares purchasable upon exercise of this Warrant immediately
preceding such event, shall be changed to the number determined by dividing the
then current exercise price by the exercise price as adjusted after such
subdivision, combination, or dividend payable in Common Stock and multiplying
the result of such division against the number of Warrant Shares purchasable
upon the exercise of this Warrant immediately preceding such event, so as to
achieve an exercise price and number of Warrant Shares purchasable after such
event proportional to such exercise price and number of Warrant Shares
purchasable immediately preceding such event. All calculations hereunder shall
be made to the nearest cent or to the nearest one-hundredth of a share, as the
case may be. No fractional Warrant Shares are to be issued upon the exercise of
this Warrant, but the Company shall pay a cash adjustment in respect of any
fraction of a share which would otherwise be issuable in an amount equal to the
same fraction of the market price per share of Common Stock on the day of
exercise as determined in good faith by the Company. In case of any capital
reorganization or any reclassification of the shares of Common Stock of the
Company, or in the case of any consolidation with or merger of the Company into
or with another corporation, or the sale of all or substantially all of its
assets to another corporation,
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which is effected in such a manner that the holders of Common Stock shall be
entitled to receive stock, securities, or assets with respect to or in exchange
for Common Stock, then, as a part of such reorganization, reclassification,
consolidation, merger, or sale, as the case may be, lawful provision shall be
made so that the holder of the Warrant shall have the right thereafter to
receive, upon the exercise hereof, the kind and amount of shares of stock or
other securities or property which the holder would have been entitled to
receive if, immediately prior to such reorganization, reclassification,
consolidation, merger, or sale, the holder had held the number of Warrant Shares
which were then purchasable upon the exercise of the Warrant. In any such case,
appropriate adjustment (as determined in good faith by the Board of Directors of
the Company) shall be made in the application of the provisions set forth herein
with respect to the rights and interest thereafter of the holder of the Warrant,
to the end that the provisions set forth herein (including provisions with
respect to adjustments of the exercise price) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon the exercise of the Warrant.
4. Sale of Options, Rights or Convertible Securities. In the event
the Company shall at any time or from time to time, issue shares of Common
Stock, options, warrants or rights to subscribe for shares of Common Stock, or
issue any securities convertible into or exchangeable for shares of Common
Stock, for a consideration per share (determined by dividing the Net Aggregate
Consideration (as determined below) by the aggregate number of shares of Common
Stock that would be issued if all such shares of Common Stock, options,
warrants, rights or convertible securities were exercised or converted to the
fullest extent permitted by their terms) of less than $2.00, the exercise price
of this Warrant shall be reduced to an amount determined by multiplying such
exercise price by a fraction:
(a) the numerator of which shall be (X) the number of
shares of Common Stock of all classes outstanding immediately prior
to the issuance of such options, rights or convertible securities
(excluding authorized but unissued shares held by the Company but
including all shares of Common Stock issuable upon conversion or
exercise of any outstanding, options, warrants, rights or convertible
securities), plus (Y) the number of shares of Common Stock which the
total amount of consideration received by the Company for the
issuance of such options, warrants, rights or convertible securities
plus the minimum amount set forth in the terms of such security as
payable to the Company upon the exercise or conversion thereof (the
"Net Aggregate Consideration") would purchase at the exercise price
prior to adjustment, and
(b) the denominator of which shall be (X) the number of
shares of Common Stock of all classes outstanding immediately prior
to the issuance of such options, warrants, rights or convertible
securities (excluding authorized but unissued shares held by the
Company but including all shares of Common Stock issuable upon
conversion or exercise of any outstanding options, warrants, rights
or convertible securities), plus (Y) the aggregate number of shares
of Common Stock that would be issued if all such options, warrants,
rights or convertible securities were exercised or converted.
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4. Notice of Corporate Action. If at any time:
(a) The Company shall pay any dividend upon its Common
Stock or make any distribution to the holders of its Common Stock
(including, without limitation, a stock dividend);
(b) The Company shall offer for subscription purposes
to the holders of its Common Stock any additional shares of stock
of any class or any other rights;
(c) There shall be any capital reorganization or
reclassification of the capital stock of the Company, or
consolidation or merger of the Company with, or sale, conveyance,
lease or other transfer of all or substantially all of its assets to,
another corporation;
(d) There shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company; or
(e) The Company shall establish a record date (or in lieu
thereof, the date the transfer books will be closed) for the purpose
of determining the holders of common stock entitled to notice of and
to vote at a meeting of shareholders at which any of the above
actions shall be considered or acted upon;
then, the Company shall give notice to the holder hereof of the date on which
the books of the Company shall close or a record shall be taken for each such
action. Such notice shall also specify the date as of which the holders of the
Common Stock of record shall (i) participate in such dividend, distribution or
subscription rights; (ii) shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up; or (iii) shall be entitled to consider or vote upon such action, as
the case may be. Such written notice shall be given at least twenty (20) days
prior to the action in question and not less than twenty (20) days prior to the
record date for such action or the date the Company's transfer books are closed
in respect thereto.
5. Notices. All notices and other communications in connection with
this Warrant must be in writing and, except as otherwise provided herein, will
be deemed to have been duly given (i) when mailed by certified or registered
mail, postage prepaid, return receipt requested, (ii) when sent by facsimile,
with written confirmation of receipt, or (iii) when delivered to the addressee
if sent by a nationally recognized overnight delivery service (receipt
requested). Any notice required or permitted to be given to the holder of this
Warrant shall be mailed, sent or delivered to the registered holder of the
Warrant at his or her last known post office address or facsimile number
appearing on the books of the Company.
6. Reservation of Common Stock. The Company will at all times
reserve and keep available such number of its authorized but unissued shares of
Common Stock as will be sufficient to permit the exercise in full of this
Warrant.
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7. Miscellaneous. Whenever reference is made herein to the issue or
sale of shares of Common Stock, the term "Common Stock" shall include any stock
of any class of the Company other than preferred stock that has a fixed limit on
dividends or a payment preference in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company. The Company will not, by
amendment of its Articles of Incorporation or through reorganization,
consolidation, merger, dissolution, or sale of assets, or by any other voluntary
act or deed, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations, or conditions to be observed or performed hereunder by
the Company, but will, at all times in good faith, assist, insofar as it is
able, in the carrying out of all provisions hereof and in the taking of all
other action which may be necessary in order to protect the rights of the holder
hereof against dilution. The representations, warranties, and agreements herein
contained shall survive the exercise of this Warrant. References to the "holder
of" include the immediate holder of Warrant Shares purchased on the exercise of
this Warrant, and the word "holder" shall include the plural thereof. This
Common Stock Purchase Warrant shall be interpreted under the laws of the State
of Michigan. All Warrant Shares or other securities issued upon the exercise of
the Warrant shall be validly issued, fully paid and nonassessable.
Notwithstanding anything contained herein to the contrary, the holder of this
Warrant shall not be deemed a shareholder of the Company for any purpose
whatsoever until and unless this Warrant is duly exercised.
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be
signed by its duly authorized officer this 4th day of February, 2000.
BIG BUCK BREWERY & STEAKHOUSE, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
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WARRANT EXERCISE FORM
To be signed only upon exercise of Warrant.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, of the Warrant Shares of Big Buck Brewery &
Steakhouse, Inc. to which such Warrant relates and:
[ ] herewith makes payment of $ therefor in cash, by
cashier's check payable to the order of the Company or by wire transfer to an
account specified by the Company; or
[ ] in lieu of the payment of cash, hereby surrenders the Warrant
with respect to an additional Warrant Shares (the average of the
closing bid and ask prices of the Warrant Shares on the day of ,
20 was $ per share);
and requests that such Warrant Shares be issued and be delivered to the address
for which is set forth below the signature of the undersigned.
Dated:
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(Taxpayer's I.D. Number)
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(Signature)
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(Address)
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ASSIGNMENT FORM
To be signed only upon authorized transfer of Warrant.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto the right to purchase Warrant
Shares of Big Buck Brewery & Steakhouse, Inc. to which the within Warrant
relates and appoints , attorney, to transfer said
right on the books of such corporation with full power of substitution in the
premises.
Dated:
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(Signature)
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(Address)
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