EXHIBIT 4.1
THIS WARRANT AND THE SHARES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE IN RELIANCE UPON EXEMPTIONS PROVIDED UNDER THE
SECURITIES ACT. ACCORDINGLY, THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE
EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED. IN ADDITION, THIS WARRANT MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED EXCEPT AS PROVIDED HEREIN. THE
SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO REPURCHASE BY THE
COMPANY ON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH HEREIN.
ODWALLA, INC.
WARRANT TO PURCHASE COMMON STOCK
Dated February 10, 1999
ODWALLA, INC. (the "Company") certifies that, for valuable
consideration, receipt of which is hereby acknowledged, the Holder is entitled
to purchase from the Company a number of shares of the Company's Common Stock
set forth in Section 1(f) hereof at the purchase price set forth in Section 1(e)
hereof.
This Warrant and the Common Stock issuable upon exercise hereof
are subject to the terms and conditions hereinafter set forth:
1. Definitions. As used in this Warrant, the following terms
shall have the following meanings:
(a) "Common Stock": Common Stock of the Company.
(b) "Effective Date": February 10, 1999.
(c) "Expiration Date": Five (5) years from the Effective
Date.
(d) "Holder": Xxxxxxxxx & Xxxxx LLC or any transferee
thereof.
(e) "Purchase Price": $6.45 per share, subject to
adjustments pursuant to Section 3 hereof.
(f) "Shares": up to 24,806 Shares, subject to
adjustments pursuant to Section 3 hereof.
(g) "Subscription Form": the form attached to this
Warrant as Exhibit "A".
(h) "Warrant": this Warrant and any warrants delivered
in substitution or exchange therefor as provided herein.
2. Exercise.
(a) Time of Exercise. This Warrant may be exercised in
whole or in part at the office of the Company, at any time, commencing on the
Effective Date; provided, however, that this Warrant shall expire and be null
and void if not exercised in the manner herein provided by 5:00 p.m., Pacific
Standard Time, on the Expiration Date.
(b) Manner of Exercise. This Warrant is exercisable at
the Purchase Price, payable in cash or by certified check, payable to the order
of the Company, subject to adjustment as provided in Section 3 hereof. Upon
surrender of this Warrant with the annexed Subscription Form duly executed,
together with payment of the Purchase Price for the Shares purchased (and any
applicable transfer taxes) at the Company's principal executive offices, the
Holder shall be entitled to receive a certificate or certificates for the Shares
so purchased.
(c) Conversion Right.
(i) In lieu of payment of the Purchase Price,
the Holder shall have the right (but not the obligation), to require the
Company to convert this Warrant, in whole or in part, into Shares as
provided for in this subsection (c) (the "Conversion Right"). Upon
exercise of the Conversion Right, the Company shall deliver to the
Holder (without payment by the Holder of any of the Purchase Price) that
number of Shares equal to the quotient obtained by dividing (A) the
value of the Warrant at the time of exercise of the Conversion Right
(determined by subtracting (x) the aggregate Purchase Price for the
Shares from (y) the aggregate Current Market Price (as defined below) in
effect on the date of exercise of the Conversion Right) by (B) the
Current Market Price of one share of Common Stock in effect on the date
of exercise of the Conversion Right.
(ii) The Conversion Right may be exercised by
the Holder on any business day prior to the Expiration Date by
delivering this Warrant with the annexed Subscription Form duly
executed, with the conversion section completed, to the Company,
exercising the Conversion Right and specifying the total number of
Shares the Holder will purchase pursuant to such conversion.
(iii) The "Current Market Price" of Common Stock
shall be determined as follows:
(A) if there then exists an active
public trading market for the Company's Common Stock, the Current Market
Price shall be the average of the daily market prices of the Common
Stock over a period of 20 consecutive trading days prior to the day on
which Current Market Price is being determined. The market price for
each such trading day shall be the average of the closing prices on such
day of the Common Stock on all domestic exchanges on which the Common
Stock is then listed, or, if there shall have been no sales on any such
exchange on such day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of the such day, or,
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if the Common Stock shall not be so listed, the average of the
representative bid and asked prices at the end of such trading day as
reported by NASDAQ.
(B) if there then does not exist an
active public trading market or the Common Stock shall not be listed on
any domestic exchange or quoted on NASDAQ, the Current Market Price
shall be the Fair Market Value (as defined below) of the Common Stock
based upon the Fair Market Value of 100% of the Company if the Company
were sold as a going concern and without regard to any discount for lack
of liquidity or as to whether the Company is then a public or a private
company, or on the basis that the relevant shares of Common Stock do not
constitute a majority or controlling interest in the Company and
assuming the exercise or conversion of all or warrants, options,
convertible securities or other rights to subscribe for or purchase any
shares of Common Stock or convertible securities, all as determined by
an independent financial expert (the "Expert"), which such Expert shall
be mutually agreed upon by the parties. If the parties are unable to
agree on an Expert, then each party shall nominate a nationally
recognized independent investment firm, which such nominees shall
mutually appoint an Expert in their sole discretion. "Fair Market Value"
shall mean the value obtainable upon a sale in an arm's length
transaction to an unaffiliated third party under usual and normal
circumstances, with neither the buyer nor the seller under any
compulsion to act, with equity to both. The determination of the Fair
Market Value by the Expert shall be final, binding, and conclusive on
the Company and the Holder of this Warrant. All costs and expenses of
the Expert shall be borne by the Company.
(d) Delivery of Stock Certificates. As soon as
practicable, but in no event later than 30 days after exercise of this Warrant,
the Company, at its expense, shall cause to be issued in the name of the Holder
(or upon payment by the Holder of any applicable transfer taxes, the Holder's
assigns) a certificate or certificates for the number of fully paid and
non-assessable Shares to which the Holder shall be entitled upon such exercise,
together with such other stock or securities or property or combination thereof
to which the Holder shall be entitled upon such exercise, determined in
accordance with Section 3 hereof.
(e) Record Date of Transfer of Shares. Irrespective of
the date of issuance and delivery of certificates for any stock or securities
issuable upon the exercise of this Warrant, each person (including a corporation
or partnership) in whose name any such certificate is to be issued shall for all
purposes be deemed to have become the holder of record of the stock or other
securities represented thereby immediately prior to the close of business on the
date on which (i) a duly executed Subscription Form containing notice of
exercise of this Warrant, (ii) payment of the Purchase Price, and (iii) the
opinion or certificate required by Section 4(a)(ii) of this Warrant is received
by the Company.
3. Adjustments. Except as otherwise provided in this Section 3,
after each adjustment of the Purchase Price pursuant to this Section 3, the
number of shares of Common Stock purchasable upon exercise of this Warrant shall
be the number derived by dividing such adjusted Purchase Price into the Purchase
Price in effect immediately prior to such adjustment. The Purchase Price shall
be subject to adjustment as follows:
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(a) In the event, prior to the expiration of this
Warrant by exercise or by its terms, the Company shall issue any shares of its
Common Stock as a share dividend on its outstanding shares of Common Stock or
shall subdivide the number of outstanding shares of Common Stock into a greater
number of shares, then, in either of such events, the Purchase Price per share
of Common Stock purchasable pursuant to this Warrant in effect at the time of
such action shall be decreased proportionately and the number of shares
purchasable pursuant to this Warrant shall be increased proportionately.
Conversely, in the event the Company shall reduce the number of shares of its
outstanding Common Stock by combining such shares into a smaller number of
shares, then, in such event, the Purchase Price per share purchasable pursuant
to this Warrant in effect at the time of such action shall be increased
proportionately and the number of shares of Common Stock at that time
purchasable pursuant to this Warrant shall be decreased proportionately. Any
dividend paid or distributed on the Common Stock in shares of any other class of
capital stock of the Company or securities convertible into shares of Common
Stock shall be treated as a dividend paid in Common Stock to the extent that
shares of Common Stock are issuable on the conversion thereof.
(b) In the event, prior to the expiration of this
Warrant by exercise or by its terms, the Company merges or consolidates with or
into another person or entity in which the Company is not the surviving
corporation or entity or sells all or substantially all of its property, or
dissolves, liquidates or winds up its affairs, prompt, proportionate, equitable,
lawful and adequate provision shall be made as part of the terms of any such
merger, consolidation, sale, dissolution, liquidation or winding up such that
the Holder of this Warrant may thereafter receive, on exercise thereof, in lieu
of each share of Common Stock of the Company which the Holder would have been
entitled to receive, the same kind and amount of any shares, securities, or
assets as may be issuable, distributable or payable on any such merger,
consolidation, sale, dissolution, liquidation or winding up with respect to each
share of Common Stock of the Company; provided, however, that, in the event of
any such merger, consolidation, sale, dissolution, liquidation or winding up,
the right to exercise this Warrant shall terminate on a date fixed by the
Company, such date to be not earlier than 5:00 p.m., Pacific Standard Time, on
the 30th day next succeeding the date on which notice of such termination of the
right to exercise this Warrant has been given by mail to the Holder thereof at
such address as may appear on the books of the Company.
(c) Notwithstanding the provisions of this Section 3, no
adjustment of the Purchase Price shall be made whereby such Purchase Price is
adjusted in an amount less than $.01 or until the aggregate of such adjustments
shall equal or exceed $.01.
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(d) In the event, prior to the expiration of this
Warrant by exercise or by its terms, the Company shall determine to take a
record of the Holders of its Common Stock for the purpose of determining the
shareholders entitled to receive any share dividend or other right which will
cause any change or adjustment in the number, amount, price or nature of the
shares of Common Stock or other securities or assets deliverable on exercise of
this Warrant pursuant to the foregoing provisions, the Company shall give to the
registered Holder of this Warrant at the address as may appear on the books of
the Company at least 15 days' prior written notice to the effect that the
Company intends to take such a record. Such notice shall specify (i) the date as
of which such record is to be taken, (ii) the purpose for which such record is
to be taken, (iii) and the number, amount, price and nature of the Shares or
other shares, securities or assets which will be deliverable on exercise of this
Warrant after the action for which such record will be taken has been completed.
Without limiting the obligation of the Company to provide notice to the
registered Holder of this Warrant of any corporate action hereunder, the failure
of the Company to give notice shall not invalidate such corporate action of the
Company.
(e) Before taking any action which would cause an
adjustment reducing the Purchase Price below the then par value of the shares of
Common Stock issuable upon exercise of this Warrant, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and non-assessable
shares of such Common Stock at such adjusted Purchase Price.
(f) Upon any adjustment of the Purchase Price required
to be made pursuant to this Section 3, the Company, within 30 days thereafter,
shall cause to be mailed to the registered Holder of this Warrant written notice
of such adjustment setting forth the Purchase Price in effect after such
adjustment and the number of Shares or other shares, securities or property
issuable upon exercise of this Warrant, and setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is based.
4. Restriction on Transfer.
(a) The Holder, by its acceptance hereof, represents,
warrants, covenants and agrees that:
(i) the Holder has knowledge of the business and
affairs of the Company;
(ii) this Warrant and the Shares issuable upon
the exercise of this Warrant are being acquired for investment and not
with a view to the distribution thereof and that, absent an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), covering the disposition of the Shares issued or
issuable upon exercise of this Warrant, such Shares will not be sold,
transferred, assigned, hypothecated or otherwise disposed of without
first providing the Company with an opinion of counsel (which may be
counsel for the Company) or other evidence, reasonably acceptable to the
Company, to the effect that such sale, transfer, assignment,
hypothecation or other disposal will be exempt from the registration and
prospectus delivery requirements of the Securities Act and the
registration or qualification requirements of any applicable state or
foreign securities laws; and
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(iii) the Holder consents to the making of a
notation in the Company's books or giving to any transfer agent of this
Warrant or the Shares an order to implement such restrictions on
transferability described in subparagraph (ii) above.
(b) This Warrant (and any successor or replacement
warrant) shall bear the certificate shown on the front page hereof and the
Shares issuable upon the exercise of this Warrant shall bear the following
legend or a legend of similar import; provided, however, that such legend shall
be removed or not placed upon this Warrant or the certificate or other
instrument representing the Shares, as the case may be, if such legend is no
longer necessary to ensure compliance with the Securities Act:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
IN RELIANCE UPON THE EXEMPTION UNDER THE SECURITIES ACT AND EXEMPTIONS
FROM REGISTRATION AVAILABLE UNDER THE APPLICABLE SECURITIES LAWS OF ANY
STATE. ACCORDINGLY, SUCH SHARES MAY BE OFFERED AND SOLD ONLY IF
REGISTERED AND QUALIFIED PURSUANT TO RELEVANT PROVISIONS OF FEDERAL AND
STATE SECURITIES LAWS OR IF AN EXEMPTION FROM SUCH REGISTRATION OR
QUALIFICATION IS APPLICABLE."
(c) This Warrant (and any successor or replacement
Warrant) may not be sold, transferred, assigned or hypothecated except to a
wholly owned subsidiary of the Holder or to a parent corporation owning a
majority of the outstanding securities of the Holder or to any successor of the
Holder in connection with a merger, sale or consolidation of the Holder in which
the Holder is not the surviving entity.
5. Payment of Taxes. All Shares issued upon the exercise of this
Warrant shall be validly issued, fully paid and non-assessable and the Company
shall pay all taxes and other governmental charges (other than income tax) that
may be imposed in respect of the issue or delivery thereof. The Company shall
not be required, however, to pay any tax or other charge imposed in connection
with any transfer involved in the issue of any certificate for Shares in any
name other than that of the Holder surrendered in connection with the purchase
of such Shares, and in such case the Company shall not be required to issue or
deliver any stock certificate until such tax or other charge has been paid or it
has been established to the Company's satisfaction that no tax or other charge
is due.
6. Reservation of Common Stock. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of issuance upon the exercise of this Warrant,
such number of shares of Common Stock as shall be issuable upon the exercise
hereof. The Company covenants and agrees that, upon exercise of this Warrant and
payment of the Purchase Price thereof pursuant to Section 2(b) or 2(c) hereof,
all Shares of Common Stock issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable.
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7. No Fractional Shares. No fractional shares shall be issued
upon the exercise of this Warrant, and the number of shares of Common Stock to
be issued shall be rounded to the nearest whole share.
8. No Stockholder Rights. Prior to exercise of this Warrant, the
holder shall not be entitled to any rights of a shareholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of shareholder meetings, and such holder shall not be entitled to any
notice or other communication concerning the business or affairs of the Company.
9. Rights; Notices. Nothing contained in this Warrant shall be
construed as conferring upon the Holder hereof the right to vote or to consent
or to receive notice as a shareholder in respect of any meetings of shareholders
for the election of directors or any other matter or as having any right
whatsoever as a shareholder of the Company. All notices, requests, consents and
other communications hereunder shall be in writing and shall be deemed to have
been duly made when delivered or mailed by registered or certified mail, postage
prepaid, return receipt requested:
(a) if to the Holder, to:
Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
(b) if to the Company, to:
Odwalla, Inc.
000 Xxxxx Xxxx Xxxx
Xxxx Xxxx Xxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
10. Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the ownership of and the loss, theft, destruction
or mutilation of this Warrant and (in case of loss, theft or destruction) upon
delivery of an indemnity agreement in an amount reasonably satisfactory to the
Company, or (in the case of mutilation) upon surrender and cancellation of the
mutilated Warrant, the Company will execute and deliver, in lieu thereof, a new
Warrant of like tenor.
11. Successors. All the covenants, agreements, representations
and warranties contained in this Warrant shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, distributees, successors and assigns.
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12. Amendments; Waivers. Neither this Warrant nor any term
hereof may be changed, waived, discharged or terminated orally but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
13. Headings. The section headings in this Warrant are inserted
for purposes of convenience only and shall have no substantive effect.
14. Saturdays, Sundays, Holidays. If the last or appointed day
for the taking of any action or the expiration of any right required or granted
herein shall be a Saturday or Sunday or shall be a legal holiday, then such
action may be taken or such right may be exercised, except as to the purchase
price, on the next succeeding day not a legal holiday.
15. Law Governing. This Warrant shall for all purposes be
construed and enforced in accordance with, and governed by, the internal laws of
the State of California, without giving effect to principles of conflict of
laws.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer and this Warrant to be dated as of the
date first above written.
ODWALLA, INC.
By:
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Sr. VP, Chief Financial
Officer
ACCEPTED AND AGREED:
XXXXXXXXX & XXXXX LLC
-------------------------------------
Name:
Title:
EXHIBIT A
SUBSCRIPTION FORM
(To be Executed by the Registered Holder
if it Desires to Exercise this Warrant)
To Odwalla, Inc.:
1. (a) The undersigned hereby irrevocably elects to exercise the
right to purchase ___________ of the Shares covered by this Warrant according to
the conditions hereof and herewith makes payment of the Purchase Price in full
in accordance with Section 2(b) of the Warrant.
(b) The undersigned hereby irrevocably elects to exercise the
right to purchase ___________ of the Shares covered by this Warrant pursuant to
the cashless exercise right set forth in Section 2(c) of the Warrant.
2. The undersigned requests that certificates for such Shares be
issued in the name of:
(a) Name and address:
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(b) Social Security or Tax Identification Number:
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3. The undersigned hereby represents and warrants that the
undersigned is acquiring such shares for its own account for investment purposes
only, and not for resale or with a view to distribution of such shares or any
part thereof.
Dated: Signature:
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NOTICE: The above signature must correspond with the name as
written within the Warrant in every particular,
without alteration or enlargement or any change
whatsoever, and if the certificate representing the
Shares is to be registered in a name other than that
in which the Warrant is registered, the signature of
the 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.
