EXHIBIT 10.4
NO SALE, OFFER TO SELL OR TRANSFER OF THESE SECURITIES SHALL BE MADE WITHOUT (i)
THE OPINION OF COUNSEL 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, Bass Pro Outdoor World, L.P.
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 the date which is the third anniversary of the opening of the
Big Buck Brewery & Steakhouse in Grapevine, Texas, Fifty Thousand (50,000)
shares of the Company's Common Stock at an exercise price of Two Dollars and
Sixty-Two and One-Half Cents ($2.625) per share (the "Warrant Shares").
1. 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 cashier'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. The Company may require that such 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
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) the opinion of counsel 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.
(b) Until this Warrant is duly transferred on the books of the
Company, the Company may treat the registered holder of this Warrant as
absolute owner hereof for all purposes without being affected by any notice
to the contrary.
(c) Each successive holder of this Warrant, or of any portion of the
rights represented hereby, shall be bound by the terms and conditions 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, 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. NOTICE OF CORPORATE ACTION. If at any time:
(1) The Company shall pay any dividend upon its Common Stock payable
in stock or make any distribution (other than a cash dividend) to the
holders of its Common Stock;
(2) 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; or
(d) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, the Company shall give notice to the holder hereof of the date on which
(i) the books of the Company shall close or a record shall be taken for each
stock dividend, distribution or subscription rights or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of the Common Stock of record shall participate
in such dividend, distribution or subscription rights or 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, 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 date on which the Company's transfer books are closed
in respect thereto.
5. REGISTRATION RIGHTS. Prior to making any disposition of the Warrant
or of any Warrant Shares purchased upon exercise of the Warrant, the holder will
give written notice to the Company describing briefly the manner of any such
proposed disposition. The holder will not make any such disposition until (i)
the Company has notified the holder that, in the opinion of its counsel,
registration under the Securities Act is not required with respect to such
disposition or (ii) a registration statement covering the proposed distribution
has been filed by the Company and has become effective. The Company agrees
that, upon receipt of written notice from the holder hereof with respect to such
proposed distribution, it will use its best efforts, in consultation with the
holder's counsel, to ascertain as promptly as possible whether or not
registration is required and will advise the holder promptly with respect
thereto, and the holder will cooperate in providing the Company with information
necessary to make such determination. Upon written request of the holders of a
majority of the Warrant Shares, the Company shall prepare and file with the SEC
one registration statement on Form S-3 covering the Warrant Shares for an
offering to be made by the holders. The Company shall use its best efforts to
cause the registration statement to be declared effective under the Securities
Act as promptly as possible after the filing thereof and to keep such
registration statement continuously effective under the Securities Act until the
date which is two years after the date that such registration statement is
declared effective by the SEC or such earlier date when all of the Warrant
Shares have been sold or may be sold without volume restrictions pursuant to
Rule 144(k) of the Securities Act.
6. 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.
7. 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.
8. 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 5th day of November, 1998.
BIG BUCK BREWERY & STEAKHOUSE, INC.
By: /s/ William F. Rolinski
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William F. Rolinski
President and Chief Executive Officer
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, 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)
---------------------------------
(Address)
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)