EXHIBIT 10.22
-------------
THIRD AMENDMENT TO WARRANT AGREEMENT
THIS THIRD AMENDMENT TO WARRANT AGREEMENT (the "Amendment") is made and
entered into as of the 17th day of December, 1997 between UNCLE B'S BAKERY,
INC., an Iowa corporation (the "Issuer"), and CREDITANSTALT-BANKVEREIN, an
Austrian banking corporation ("Creditanstalt").
W I T N E S S E T H:
WHEREAS, pursuant to Loan and Security Agreement dated as of July 12,
1995 between the Issuer and Creditanstalt Corporate Finance, Inc. ("CFI") (the
Loan Agreement"), CFI made a loan to the Issuer upon the terms set forth in the
Loan Agreement; and
WHEREAS, in order to induce CFI to structure and provide the loan
pursuant to the Loan Agreement, the Issuer executed and delivered a Warrant
Agreement dated as of July 12, 1995 (as amended by the First Amendment (as
defined below) and the Second Amendment (as defined below) and as may be
amended, supplemented or otherwise modified from time to time (the "Warrant
Agreement")) and issued to CFI Series A Warrants to purchase 215,000 shares of
Common Stock or Convertible Preferred Stock of the Issuer, which warrants were
later transferred by CFI to Creditanstalt American Corporation ("CAC"), an
affiliate of CFI; and
WHEREAS, on October 28, 1996, the Issuer and CFI entered into a Waiver
and First Amendment to Loan and Security Agreement which modified certain
definitions and covenants and waived certain defaults, and on November 15, 1996,
the Issuer and CFI entered into a Second Amendment to Loan and Security
Agreement (the "Second Loan Agreement Amendment") to provide for the loan of
additional funds; and
WHEREAS, on August 25, 1997, the Issuer and CFI entered into a Waiver
and Third Amendment to Loan and Security Agreement (the "Third Loan Agreement
Amendment") which modified certain definitions and covenants and waived certain
defaults; and
WHEREAS, in connection with and to induce CFI to enter into the Second
Loan Agreement Amendment, the Issuer amended the Warrant Agreement on November
15, 1996 (the "First Amendment") and issued to CAC Series B Warrants to purchase
205,000 shares of Common Stock or Convertible Preferred Stock of the Issuer; and
WHEREAS, also on November 15, 1996, Creditanstalt made an equity
investment in 111,111 shares of Common Stock of the Issuer; and
WHEREAS, in connection with the Third Loan Agreement Amendment, the
Issuer agreed to substitute Creditanstalt as the Warrant Holder of the Series A
Warrants and the Series B Warrants, and to amend the Warrant Agreement, in order
to provide for the issuance of additional warrants to Creditanstalt and make
certain other changes set forth herein; and
WHEREAS, the Issuer and CFI wish to enter into a Waiver and Fourth
Amendment to Loan and Security Agreement and an Overadvance Agreement each dated
as of December 17, 1997 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Fourth Loan Agreement Amendment"); and
WHEREAS, in connection with and to induce CFI to enter into the Fourth
Loan Agreement Amendment, the Issuer has agreed to reduce the Exercise Price of
the Warrants from $0.55 per Warrant to $0.01 per Warrant.
NOW, THEREFORE, in consideration of the premises, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not expressly
defined herein shall have the same respective meanings given to such terms in
the Warrant Agreement.
2. AMENDMENT OF DEFINITION OF "EXEMPTED SECURITIES." The term "Exempted
Securities", as set forth in Section 1 of the Warrant Agreement, is hereby
deleted in its entirety and the following definition is substituted in lieu
thereof:
"EXEMPTED SECURITIES" shall mean (A) Warrant Shares,
(B) shares of the Issuer's capital stock issued as a stock
dividend described in subsection 12(b), (C) options and
warrants granted as of the date hereof to purchase up to
1,010,200 shares of Common Stock of the Issuer and shares of
Common Stock issuable upon exercise of such options and
warrants, (D) up to 750,000 shares of Issuer's Common Stock to
be sold to an Employee Stock Ownership Plan to be established
by Issuer at a purchase price not less than the fair market
value of such shares as determined in accordance with the
applicable provisions of the Internal Revenue Code of 1986, as
amended, or the regulations promulgated thereunder, (E)
employee options granted after the date hereof at not less
than Current Market Price Per Share to purchase up to 388,600
shares of Common Stock and shares of Common Stock issuable
upon the exercise of such options, and (F) shares of Common
Stock issued as compensation under agreements with Cybus
Capital Markets, L.C. or The Scotland Group, Inc. or other
consultants or investment banking firms retained by Issuer and
approved by Creditanstalt; provided, that (i) any shares of
Common Stock shall be issued at a price not less than the
price which would be the Current Market Price Per Share of the
Company's Common Stock on the applicable date under such
agreement, if the definition of Current Market Price Per Share
used the price on the immediately preceding one (1) trading
day rather than a 20-day average, (ii) any warrants to
purchase Common Stock may have an exercise price to be
determined by Issuer but not less than $.01 per share of
Common Stock, and (iii) any shares of Common Stock issued
pursuant to the exercise of warrants shall be issued for not
less than the exercise price then in effect under such
warrants. The limits in clauses (A) through (F) shall be
proportionately adjusted for dividends and other distributions
payable in and for subdivisions and combinations of shares of
Common Stock.
3. AMENDMENT OF DEFINITION OF "EXERCISE PRICE". The term "Exercise
Price", as set forth in Section 1 of the Warrant Agreement, is hereby deleted in
its entirety and the following definition is substituted in lieu thereof:
"EXERCISE PRICE" shall mean the exercise price of a
Warrant, which shall be $0.01 per Warrant.
4. Exhibit A. The Warrant Agreement is hereby further amended by
deleting Exhibits A-1, A-2 and A-3 in their entirety and substituting in lieu
thereof new Exhibits A-1, A-2 and A-3 in the forms attached hereto as Exhibits
A-1, A-2 and A-3.
5. ISSUANCE AND REGISTRATION OF WARRANTS. The Issuer hereby agrees to
issue and deliver to Creditanstalt or, at the option of Creditanstalt, an
Affiliate thereof, new Warrant Certificates evidencing the outstanding Warrants
as hereby amended. Upon receipt of such new Warrant Certificates, Creditanstalt
shall deliver to the Issuer for cancellation the old Warrant Certificates. On
the date hereof, the Issuer shall register the new Warrant Certificates in the
Warrant Register in the name of Creditanstalt or an Affiliate thereof as the
case may be.
2
6. RESTATEMENT OF REPRESENTATIONS AND WARRANTIES.
(a) Issuer hereby reaffirms each and every representation and warranty
heretofore made under or in connection with the execution and delivery of the
Warrant Agreement (including, without limitation, those representations and
Warranties set forth in Section 2 of the Warrant Agreement), as such
representations and warranties are amended in Sections 5(b) and 5(c) of this
Amendment, as fully as though such representations and warranties have been made
on the date hereof and with specific reference to this Amendment.
(b) The Issuer has authorized capital stock consisting of (i) 40,000,000
Class A shares, par value $0.01 per share, of which, as of December 17, 1997,
3,656,258 shares are issued and outstanding; (ii) 8,295,000 Class B shares, par
value $0.01 per share, no shares of which are issued and outstanding; (iii)
215,000 shares of Class B, Series 1 Convertible Preferred Stock, $0.01 par
value, no shares of which are issued and outstanding; (iv) 420,000 shares of
Class B, Series 2 Preferred Stock, $0.01 par value, no shares of which are
issued and outstanding; and (v) 1,070,000 shares of Class B, Series 3 Preferred
Stock, $0.01 par value, no shares of which are issued and outstanding. Except as
set forth on Schedule I hereto, there are no outstanding options, warrants,
subscriptions, rights, convertible or exchangeable securities or other
agreements or plans under which the Issuer may be or become obligated to issue,
sell or transfer shares of its capital stock or other securities. The
Convertible Preferred Stock has no voting rights, except as required by law, and
is convertible on a share-for-share basis into Common Stock of the Issuer. To
the Issuer's best knowledge, there are no voting agreements, voting trusts,
proxies or other agreements or understandings with respect to the voting of any
capital stock of the Issuer or any Subsidiary, other than the Voting Agreement
between William T. Rose, Jr. and William T. Rose, Sr. dated August 14, 1993, the
provisions of Section 9(c) of the Warrant Agreement, and the provisions of
Section 3 of the Subscription Agreement dated November 15, 1996 between the
Issuer and Creditanstalt.
(c) Item 4 of Schedule II to the Warrant Agreement is amended to read as
follows: Warrant Agreement dated July 12, 1995 by and between Uncle B's Bakery,
Inc. and Creditanstalt Corporate Finance, Inc., as amended by the First
Amendment to Warrant Agreement, Second Amendment to Warrant Agreement, and Third
Amendment to Warrant Agreement.
7. EFFECT OF AMENDMENT. Except as expressly set forth hereinabove, the
Warrant Agreement shall remain in full force and effect as originally written,
and shall constitute the legal, valid, binding and enforceable obligation of
Issuer to Creditanstalt, and Issuer hereby restates, ratifies and reaffirms each
and every term and condition set forth in the Warrant Agreement, as amended
hereby, effective as of the date hereof. This Amendment shall not entitle
Creditanstalt to any increase in the number of Warrants by reason of Section 12
of the Warrant Agreement.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
one and the same instrument.
3
9. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
10. SECTION REFERENCES. Section titles and references used in this
Amendment shall be without substance and meaning or content of any kind
whatsoever and are not a part of the agreement among the parties hereto
evidenced hereby.
11. FURTHER ASSURANCES. Issuer agrees to take such further action as
Creditanstalt shall reasonably request in connection herewith evidencing the
Amendment herein contained to the Warrant Agreement.
12. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers,
effective as of the date and year first above written.
"Issuer"
UNCLE B'S BAKERY, INC.
By: /s/ William T. Rose, Jr.
----------------------------------
Name: William T. Rose, Jr.
Title: CEO
Attest: /s/ Wm. Howard McClennan, Jr.
------------------------------
Name: Wm. Howard McClennan, Jr.
Title: Corporate Secretary & CFO
"Creditanstalt"
CREDITANSTALT-BANKVEREIN
By: /s/ Robert M. Biringer
----------------------------------
Name: Robert M. Biringer
Title: Executive Vice President
By: /s/ Scott Kray
----------------------------------
Name: Scott Kray
Title: Vice President
5
EXHIBIT A-1
FORM OF SERIES A WARRANT CERTIFICATE
THE WARRANTS AND SHARES REPRESENTED BY THIS SERIES A WARRANT CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAW AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR LAW.
SUCH WARRANTS AND SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
CONDITIONS SPECIFIED IN AND ARE SUBJECT TO OTHER PROVISIONS OF THE WARRANT
AGREEMENT, DATED AS OF JULY 12, 1995, (AS AMENDED) BETWEEN THE ISSUER AND
CREDITANSTALT CORPORATE FINANCE, INC., A COMPLETE AND CORRECT COPY OF WHICH IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE ISSUER AND WILL BE
FURNISHED TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN MANDATORY
REDEMPTION AND EXCHANGE RIGHTS MORE FULLY SET FORTH IN THE WARRANT AGREEMENT.
Certificate No. A-______
[Date]
EXERCISABLE ONLY ON OR BEFORE
July 12, 2005
Warrant Certificate
This Series A Warrant Certificate (this "Warrant Certificate")
certifies that Creditanstalt-Bankverein ("Creditanstalt"), or registered
assigns, is the registered holder of 215,000 Warrants (the "Warrants") to
purchase Common Stock or Convertible Preferred Stock of Uncle B's Bakery, Inc.,
an Iowa corporation (the "Issuer"). Each Warrant entitles the holder, but only
subject to the conditions set forth herein and in the Warrant Agreement referred
to below, to purchase from the Issuer before 5:00 P.M., New York time, on July
12, 2005 (the "Expiration Date"), one (1) fully paid and nonassessable share of
the Common Stock or Convertible Preferred Stock of the Issuer (the "Warrant
Shares") in the percentages and to the extent set forth in the Warrant
Agreement, at a price (the "Exercise Price") of $0.01 per Warrant payable in
lawful money of the United States of America, upon surrender of this Warrant
Certificate, execution of the annexed Form of Election to Purchase and payment
of the Exercise Price at the office of the Issuer
A-1-1
at 441 Dubuque Street, Ellsworth, Iowa 50075, or such other address as the
Issuer may specify in writing to the registered holder of Warrants evidenced
hereby (the "Warrant Office"). In lieu of exercising Warrants pursuant to the
immediately preceding sentence, the Warrant holder shall have the right to
require the Issuer to convert the Warrants, in whole or in part and at any time
or times, into Warrant Shares, by surrendering to the Issuer the Warrant
Certificate evidencing the Warrants to be converted, accompanied by the annexed
Form of Notice of Conversion which has been duly completed and signed. The
Exercise Price and number of Warrant Shares purchasable upon exercise of the
Warrants are subject to adjustment prior to the Expiration Date as set forth in
the Warrant Agreement. In no event shall this Warrant be exercisable for shares
of Common Stock or Convertible Preferred Stock which, when aggregated with all
other capital stock of the Issuer (other than shares of Non-Attributable Stock)
then held or previously held by or currently issuable without restriction to
Creditanstalt or its Affiliates would, upon issuance, represent in excess of
24.99% of the Equity of the Issuer (defined in the Warrant Agreement) unless
such shares, when issued, would constitute Non-Attributable Stock (as defined in
the Warrant Agreement).
No Warrant may be exercised after 5:00 P.M., New York time, on the
Expiration Date and (except as otherwise provided in the Warrant Agreement) all
rights of the registered holders of the Warrants shall cease after 5:00 P.M.,
New York time, on the Expiration Date.
The Issuer may deem and treat the registered holders of the Warrants
evidenced hereby as the absolute owners thereof (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof and of any distribution to the holders hereof and for all other
purposes, and the Issuer shall not be affected by any notice to the contrary.
Warrant Certificates, when surrendered at the office of the Issuer at
the Warrant Office by the registered holder hereof in person or by a legal
representative duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Warrant Agreement, but without
payment of any service charge, for another Warrant Certificate or Warrant
Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Office, 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 to the
transferee(s) and, if less than all the Warrants evidenced hereby are to be
transferred, to the registered holder hereof, subject to the limitations
provided in the Warrant Agreement, without charge except for any tax or other
governmental charge imposed in connection therewith.
A-1-2
This Warrant Certificate is one of the Warrant Certificates referred to
in the Warrant Agreement, dated as of July 12, 1995, (as amended) between the
Issuer and Creditanstalt Corporate Finance, Inc. Said Warrant Agreement is
hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Issuer and the holders.
IN WITNESS WHEREOF the Issuer has caused this Warrant Certificate to be
signed by its duly authorized officers.
ATTEST: UNCLE B'S BAKERY, INC.
By:
- --------------------------- ---------------------------
________________, Secretary ________________, President
[CORPORATE SEAL]
A-1-3
ANNEX to Form
of Series A Warrant
Certificate
FORM OF ELECTION TO PURCHASE
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _____ Warrant Shares* and
herewith tenders payment for such Warrant Shares to the order of the Issuer in
the amount of $_______________________ in accordance with the terms hereof. The
undersigned requests that a certificate for such Warrant Shares be registered in
the name of ________________ whose address 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 Certificate representing the remaining balance of the Warrant Shares be
registered in the name of _______________ whose address is _______________ and
that such Warrant Certificate be delivered to ____________________ whose address
is ____________________.
Signature:
- ------------------------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
Date:_____________
* Consisting of:
_____ shares of Common Stock
_____ shares of Convertible Preferred Stock
A-1-4
ANNEX to Form
of Series A Warrant
Certificate
FORM OF NOTICE OF CONVERSION
(To be executed upon conversion of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to convert Warrants represented hereby
into ____ Warrant Shares* in accordance with the terms hereof. The undersigned
requests that a certificate for such Warrant Shares be registered in the name of
______________ whose address 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 obtainable hereunder,
the undersigned requests that a new Warrant Certificate representing the
remaining balance of the Warrant Shares be registered in the name of
___________________ whose address is _______________ and that such Warrant
Certificate be delivered to __________________ whose address is
________________.
Signature:
- ------------------------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
Date:_____________
* Consisting of:
_____ shares of Common Stock
_____ shares of Convertible Preferred Stock
A-1-5
EXHIBIT A-2
FORM OF SERIES B WARRANT CERTIFICATE
THE WARRANTS AND SHARES REPRESENTED BY THIS SERIES B WARRANT CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAW AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR LAW.
SUCH WARRANTS AND SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
CONDITIONS SPECIFIED IN AND ARE SUBJECT TO OTHER PROVISIONS OF THE WARRANT
AGREEMENT, DATED AS OF JULY 12, 1995, (AS AMENDED) BETWEEN THE ISSUER AND
CREDITANSTALT CORPORATE FINANCE, INC., A COMPLETE AND CORRECT COPY OF WHICH IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE ISSUER AND WILL BE
FURNISHED TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN MANDATORY
REDEMPTION AND EXCHANGE RIGHTS MORE FULLY SET FORTH IN THE WARRANT AGREEMENT.
Certificate No. B-_____
[Date]
EXERCISABLE ONLY ON OR BEFORE
November 15, 2006
Series B Warrant Certificate
This Series B Warrant Certificate (this "Warrant Certificate")
certifies that Creditanstalt-Bankverein ("Creditanstalt"), or registered
assigns, is the registered holder of 205,000 Warrants (the "Warrants") to
purchase Common Stock or Convertible Preferred Stock of Uncle B's Bakery, Inc.,
an Iowa corporation (the "Issuer"). Each Warrant entitles the holder, but only
subject to the conditions set forth herein and in the Warrant Agreement referred
to below, to purchase from the Issuer before 5:00 P.M., New York time, on
November 15, 2006 (the "Expiration Date"), one (1) fully paid and nonassessable
share of the Common Stock or Convertible Preferred Stock of the Issuer (the
"Warrant Shares") in the percentages and to the extent set forth in the Warrant
Agreement, at a price (the "Exercise Price") of $0.01 per Warrant payable in
lawful money of the United States of America, upon surrender of this Warrant
Certificate, execution of the annexed Form of Election to Purchase and payment
of the Exercise Price
A-2-1
at the office of the Issuer at 441 Dubuque Street, Ellsworth, Iowa 50075, or
such other address as the Issuer may specify in writing to the registered holder
of Warrants evidenced hereby (the "Warrant Office"). In lieu of exercising
Warrants pursuant to the immediately preceding sentence, the Warrant holder
shall have the right to require the Issuer to convert the Warrants, in whole or
in part and at any time or times, into Warrant Shares, by surrendering to the
Issuer the Warrant Certificate evidencing the Warrants to be converted,
accompanied by the annexed Form of Notice of Conversion which has been duly
completed and signed. The Exercise Price and number of Warrant Shares
purchasable upon exercise of the Warrants are subject to adjustment prior to the
Expiration Date as set forth in the Warrant Agreement. In no event shall this
Warrant be exercisable for shares of Common Stock or Convertible Preferred Stock
which, when aggregated with all other capital stock of the Issuer (other than
shares of Non-Attributable Stock) then held or previously held by or currently
issuable without restriction to Creditanstalt or its Affiliates would, upon
issuance, represent in excess of 24.99% of the Equity of the Issuer (defined in
the Warrant Agreement) unless such shares, when issued, would constitute
Non-Attributable Stock (as defined in the Warrant Agreement).
No Warrant may be exercised after 5:00 P.M., New York time, on the
Expiration Date and (except as otherwise provided in the Warrant Agreement) all
rights of the registered holders of the Warrants shall cease after 5:00 P.M.,
New York time, on the Expiration Date.
The Issuer may deem and treat the registered holders of the Warrants
evidenced hereby as the absolute owners thereof (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof and of any distribution to the holders hereof and for all other
purposes, and the Issuer shall not be affected by any notice to the contrary.
Warrant Certificates, when surrendered at the office of the Issuer at
the Warrant Office by the registered holder hereof in person or by a legal
representative duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Warrant Agreement, but without
payment of any service charge, for another Warrant Certificate or Warrant
Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Office, 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 to the
transferee(s) and, if less than all the Warrants evidenced hereby are to be
transferred, to the registered holder hereof, subject to the limitations
provided in the Warrant Agreement, without charge except for any tax or other
governmental charge imposed in connection therewith.
A-2-2
This Warrant Certificate is one of the Warrant Certificates referred to
in the Warrant Agreement, dated as of July 12, 1995, (as amended) between the
Issuer and Creditanstalt Corporate Finance, Inc. Said Warrant Agreement is
hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Issuer and the holders.
IN WITNESS WHEREOF the Issuer has caused this Warrant Certificate to be
signed by its duly authorized officers.
ATTEST: UNCLE B'S BAKERY, INC.
By:
- ---------------------------- -----------------------------
________________, Secretary ________________, President
[CORPORATE SEAL]
A-2-3
ANNEX to Form
of Series B Warrant
Certificate
FORM OF ELECTION TO PURCHASE
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _____ Warrant Shares* and
herewith tenders payment for such Warrant Shares to the order of the Issuer in
the amount of $_____ in accordance with the terms hereof. The undersigned
requests that a certificate for such Warrant Shares be registered in the name of
____________________ whose address 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 Certificate representing the remaining balance of the Warrant Shares be
registered in the name of _______________________ whose address is
________________________ and that such Warrant Certificate be delivered to
_________________________ whose address is ________________________________.
Signature:
- ------------------------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
Date:_____________
* Consisting of:
_____ shares of Common Stock
_____ shares of Convertible Preferred Stock
A-2-4
ANNEX to Form
of Series B Warrant
Certificate
FORM OF NOTICE OF CONVERSION
(To be executed upon conversion of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to convert Warrants represented hereby
into _______ Warrant Shares* in accordance with the terms hereof. The
undersigned requests that a certificate for such Warrant Shares be registered in
the name of ______________ whose address 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 obtainable
hereunder, the undersigned requests that a new Warrant Certificate representing
the remaining balance of the Warrant Shares be registered in the name of
_____________ whose address is ______________ and that such Warrant Certificate
be delivered to _____________ whose address is ______________________.
Signature:
- ------------------------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
Date:_____________
* Consisting of:
_____ shares of Common Stock
_____ shares of Convertible Preferred Stock
A-2-5
EXHIBIT A-3
FORM OF SERIES C WARRANT CERTIFICATE
THE WARRANTS AND SHARES REPRESENTED BY THIS SERIES C WARRANT CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAW AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR LAW.
SUCH WARRANTS AND SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
CONDITIONS SPECIFIED IN AND ARE SUBJECT TO OTHER PROVISIONS OF THE WARRANT
AGREEMENT, DATED AS OF JULY 12, 1995, (AS AMENDED) BETWEEN THE ISSUER AND
CREDITANSTALT CORPORATE FINANCE, INC., A COMPLETE AND CORRECT COPY OF WHICH IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE ISSUER AND WILL BE
FURNISHED TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN MANDATORY
REDEMPTION AND EXCHANGE RIGHTS MORE FULLY SET FORTH IN THE WARRANT AGREEMENT.
Certificate No. C-_____
[Date]
EXERCISABLE ONLY ON OR BEFORE
August 22, 2007
Series C Warrant Certificate
This Series C Warrant Certificate (this "Warrant Certificate")
certifies that Creditanstalt-Bankverein ("Creditanstalt"), or registered
assigns, is the registered holder of 650,000 Warrants (the "Warrants") to
purchase Common Stock or Convertible Preferred Stock of Uncle B's Bakery, Inc.,
an Iowa corporation (the "Issuer"). Each Warrant entitles the holder, but only
subject to the conditions set forth herein and in the Warrant Agreement referred
to below, to purchase from the Issuer before 5:00 P.M., New York time, on August
22, 2007 (the "Expiration Date"), one (1) fully paid and nonassessable share of
the Common Stock or Convertible Preferred Stock of the Issuer (the "Warrant
Shares") in the percentages and to the extent set forth in the Warrant
Agreement, at a price (the "Exercise Price") of $0.01 per Warrant payable in
lawful money of the United States of America, upon surrender of this Warrant
Certificate, execution of the annexed Form of Election to Purchase and payment
of the Exercise Price
A-3-1
at the office of the Issuer at 441 Dubuque Street, Ellsworth, Iowa 50075, or
such other address as the Issuer may specify in writing to the registered holder
of Warrants evidenced hereby (the "Warrant Office"). In lieu of exercising
Warrants pursuant to the immediately preceding sentence, the Warrant holder
shall have the right to require the Issuer to convert the Warrants, in whole or
in part and at any time or times, into Warrant Shares, by surrendering to the
Issuer the Warrant Certificate evidencing the Warrants to be converted,
accompanied by the annexed Form of Notice of Conversion which has been duly
completed and signed. The Exercise Price and number of Warrant Shares
purchasable upon exercise of the Warrants are subject to adjustment prior to the
Expiration Date as set forth in the Warrant Agreement. In no event shall this
Warrant be exercisable for shares of Common Stock or Convertible Preferred Stock
which, when aggregated with all other capital stock of the Issuer (other than
shares of Non-Attributable Stock) then held or previously held by or currently
issuable without restriction to Creditanstalt or its Affiliates would, upon
issuance, represent in excess of 24.99% of the Equity of the Issuer (defined in
the Warrant Agreement) unless such shares, when issued, would constitute
Non-Attributable Stock (as defined in the Warrant Agreement).
No Warrant may be exercised after 5:00 P.M., New York time, on the
Expiration Date and (except as otherwise provided in the Warrant Agreement) all
rights of the registered holders of the Warrants shall cease after 5:00 P.M.,
New York time, on the Expiration Date.
The Issuer may deem and treat the registered holders of the Warrants
evidenced hereby as the absolute owners thereof (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof and of any distribution to the holders hereof and for all other
purposes, and the Issuer shall not be affected by any notice to the contrary.
Warrant Certificates, when surrendered at the office of the Issuer at
the Warrant Office by the registered holder hereof in person or by a legal
representative duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Warrant Agreement, but without
payment of any service charge, for another Warrant Certificate or Warrant
Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Office, 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 to the
transferee(s) and, if less than all the Warrants evidenced hereby are to be
transferred, to the registered holder hereof, subject to the limitations
provided in the Warrant Agreement, without charge except for any tax or other
governmental charge imposed in connection therewith.
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This Warrant Certificate is one of the Warrant Certificates referred to
in the Warrant Agreement, dated as of July 12, 1995, (as amended) between the
Issuer and Creditanstalt Corporate Finance, Inc. Said Warrant Agreement is
hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Issuer and the holders.
IN WITNESS WHEREOF the Issuer has caused this Warrant Certificate to be
signed by its duly authorized officers.
ATTEST: UNCLE B'S BAKERY, INC.
By:
- --------------------------- ----------------------
________________, Secretary ________________, President
[CORPORATE SEAL]
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ANNEX to Form
of Series C Warrant
Certificate
FORM OF ELECTION TO PURCHASE
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _____ Warrant Shares* and
herewith tenders payment for such Warrant Shares to the order of the Issuer in
the amount of $_______ in accordance with the terms hereof. The undersigned
requests that a certificate for such Warrant Shares be registered in the name of
_________________ whose address 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 Certificate representing the remaining balance of the Warrant Shares be
registered in the name of ______________________ whose address is
______________________ and that such Warrant Certificate be delivered to
________________________ whose address is _________________________.
Signature:
- ------------------------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
Date:_____________
* Consisting of:
_____ shares of Common Stock
_____ shares of Convertible Preferred Stock
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ANNEX to Form
of Series C Warrant
Certificate
FORM OF NOTICE OF CONVERSION
(To be executed upon conversion of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to convert Warrants represented hereby
into ____ Warrant Shares* in accordance with the terms hereof. The undersigned
requests that a certificate for such Warrant Shares be registered in the name of
________________ whose address 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
obtainable hereunder, the undersigned requests that a new Warrant Certificate
representing the remaining balance of the Warrant Shares be registered in the
name of________________ whose address is _________________ and that such Warrant
Certificate be delivered to ____________________ whose address is
__________________________________.
Signature:
- ------------------------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
Date:_____________
* Consisting of:
_____ shares of Common Stock
_____ shares of Convertible Preferred Stock
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SCHEDULE I
OUTSTANDING OPTIONS, WARRANTS, SUBSCRIPTIONS, RIGHTS, CONVERTIBLE OR
EXCHANGEABLE SECURITIES OR OTHER AGREEMENTS OF PLANS UNDER WHICH ISSUER MAY BE
OR BECOME OBLIGATED TO ISSUE, SELL OR TRANSFER SHARES OF CAPITAL STOCK OR OTHER
SECURITIES