EXHIBIT 4.4
SPICY GOURMET MANUFACTURING, INC.
(A DELAWARE CORPORATION)
"D" WARRANT CERTIFICATE
WARRANT NUMBER _______ NUMBER OF WARRANTS: ______________
CLASS "A" WARRANT CERTIFICATE FOR THE PURCHASE OF SHARES OF THE COMMON STOCK
OF SPICY GOURMET MANUFACTURING, INC. THESE SECURITIES WERE ISSUED EXEMPT
FROM REGISTRATION UNDER TITLE 11, SECTION 1145, OF THE U.S. CODE.
FOR VALUE RECEIVED, Spicy Gourmet Manufacturing, Inc. (the "Company"), a
Delaware corporation, hereby certifies that _________________________________
the registered holder hereof, or registered assigns, (the "Holder") subject to
the terms and conditions hereinafter set forth, and at any time during the
period beginning on the date hereof and ending on November 19, 2015, is entitled
to:
1. Purchase shares of the Common Stock of the Company for each of the within
Warrants exercised at a price of $6.00 per share of such Common Stock (the
"Warrant Price") or
2. Purchase shares of the Common Stock of the Company for each of the within
Warrants exercised at such price as may be determined by vote of the Board
of Directors, provided that such price is not higher than $6.00 per share
of such Common Stock.
3. Convert these Warrants, in whole or in part, into that number of shares of
Common Stock of the Company determined by dividing (a) the aggregate fair
market value, as of the date of conversion, of the shares of Common Stock
of the Company which would be issuable upon exercise of the Warrants to be
converted minus the aggregate Warrant Price of the shares of Common Stock
of the Company which would be issuable upon exercise of the Warrants by (b)
the said fair market value of one share of the Common Stock of the Company.
For the purposes of conversion of these Warrants, fair market value shall
be the value determined in accordance with the following provisions:
a. If the Common Stock of the Company is not at the time listed or
admitted on any stock exchange but is traded on the Nasdaq National
Market System or SmallCap Market or is quoted on the OTC Bulletin
Board, the fair market value shall be the closing selling price per
share of such common stock on the date in question, as such price is
reported by the National Association of Securities Dealers through, in
order of preference, the Nasdaq National Market System, the SmallCap
Market, or the OTC Bulletin Board, or any successor system. If there
is not a closing selling price for such common stock on the date in
question, then the fair market value shall be the closing selling
price on the last preceding date for which such a quotation exists.
b. If the common stock is at the time listed or admitted to trading on
any stock exchange, the fair market value shall be the closing selling
price per share of such common stock on the date in question on the
stock exchange determined by the Board of Directors of the Company to
be the primary market for such common stock, as such price is
officially quoted in the composite tape of transactions on the
exchange. If there is no closing selling price for such common stock
on the date in question then the fair market value shall be the
closing selling price on the last preceding date for which such a
quotation exists.
c. If the common stock is at the time neither listed nor admitted to
trading on any exchange nor traded on the Nasdaq National Market
System nor the SmallCap Market, nor traded on the OTC Bulletin board,
then such fair market value shall be determined by the Board of
Directors of the Company after taking into account such factors as the
Board of Directors of the Company shall deem appropriate.
4. Upon exercise or conversion of these Warrants, the registered Holder hereof
shall surrender to the stock transfer agent of the Company this Warrant
Certificate together with a letter identifying the number of warrant shares
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being exercised or converted, the address to which the share certificate
should be sent, and a certified check or bank draft payable to the order of
the Company.
5. In the case of exercise or conversion of the Warrants, no fractional shares
of the Common Stock of the Company shall be issued.
6. The Company covenants and agrees that shares of Common Stock which may be
delivered upon the exercise or conversion of this Warrant will, upon
delivery, be free from all taxes, liens and charges with respect to the
purchase thereof hereunder.
7. This Warrant shall not be exercised or converted by Holder in any state
where such exercise or conversion would be unlawful.
8. The Company agrees at all times to reserve or hold available a sufficient
number of shares of its Common Stock to cover the number of shares issuable
upon the exercise or conversion of this and all other Warrants of like
tenor then outstanding.
9. This Warrant does not entitle the Holder to any voting rights or other
rights as a shareholder of the Company, or to any other rights whatsoever
except the rights herein set forth, and no dividend shall be payable or
accrue in respect of this Warrant or the interest represented hereby, or
the shares which may be acquired hereunder, until or unless, and except to
the extent that this Warrant shall be exercised or converted, and the
Common Stock which may be acquired upon exercise or conversion thereof
shall become deliverable.
10. The Warrants are not redeemable nor cancellable by the Company.
11. This Warrant is exchangeable upon the surrender hereof by the Holder to the
Company for new Warrants of like tenor and date representing in the
aggregate the right to acquire the number of shares which, may be acquired
hereunder, each of such new Warrants to represent the right to acquire such
number of shares as may be designated by the registered Holder at the time
of such surrender.
12. The Company may deem and treat the Holder at any time as the absolute owner
hereof for all purposes and shall not be affected by any notice to the
contrary.
13. Notwithstanding any other provision governing the Warrants, if as of the
date of exercise, the Company has registered its Common Stock under Section
12 of the Securities Exchange Act of 1934, as amended, the Holder may not
exercise these Warrants to the extent that immediately following such
exercise the Holder would beneficially own more than 4.99% of the
outstanding Common Stock of the Company. For this purpose, a representation
of the Holder that following such exercise it would not beneficially own
more than 4.99% of the outstanding Common Stock of the Company shall be
conclusive and binding upon the Company.
14. The number of shares of Common Stock which may be acquired upon exercise or
conversion of these Warrants and the Warrant Price shall be subject to
adjustment from time to time as follows:
a. If the Company shall at any time subdivide its outstanding shares of
Common Stock by recapitalization, reclassification or split-up
thereof, or if the Company shall declare a stock dividend or
distribute shares of Common Stock to its stockholders, the number of
shares of Common Stock which may be acquired upon exercise of this
Warrant immediately prior to such subdivision shall be proportionately
increased in each instance, and if the Company shall at any time
combine the outstanding shares of Common Stock by recapitalization,
reclassification or combination thereof the number of shares of Common
Stock which may be acquired upon exercise of this Warrant immediately
prior to such combination shall be proportionately decreased in each
instance.
b. If the Company shall distribute to all of the holders of its shares of
Common Stock any security (except as provided in the preceding
paragraph) or other assets (other than a distribution made as a
dividend payable out of earnings or out of any earned surplus legally
available for dividends under the laws of the jurisdiction of
incorporation of the Company), the Board of Directors shall be
required to make such equitable adjustment in the Warrant Price in
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effect immediately prior to the record date of such distribution as
may be necessary to preserve to the Holder of this Warrant rights
substantially proportionate to those enjoyed hereunder by such Holder
immediately prior to the happening of such distribution. Any such
adjustment shall become effective as of the day following the record
date for such distribution.
c. Whenever the number of shares of Common Stock which may be acquired
upon the exercise of this Warrant is required to be adjusted as
provided herein, the Warrant Price shall be adjusted (to the nearest
cent) in each instance by multiplying such Warrant Price immediately
prior to such adjustment by a fraction the numerator of which shall be
the number of shares of Common Stock which may be acquired hereunder
upon the exercise of the Warrants immediately prior to such
adjustment, and the denominator of which shall be the number of shares
of Common Stock which may be acquired hereunder immediately
thereafter.
d. In case of any reclassification of the outstanding shares of Common
Stock, other than a change covered by paragraph (14a) above or which
solely affects the par value of such shares of Common Stock, or in the
case of any merger or consolidation of the Company with or into
another corporation (other that a consolidation merger in which the
Company is the continuing corporation and which does not result in any
reclassification or capital reorganization of the outstanding shares
of Common Stock), or in the case of any sale or conveyance to another
corporation of the property of the Company as an entirety or
substantially as an entirety in connection with which the Company is
dissolved, the Holder of this Warrant shall have the right thereafter
(until the expirations of the respective rights of exercise of the
Warrant) to receive upon the exercise thereof using the same aggregate
Warrant Price applicable hereunder immediately prior to such event,
the kind and amount of shares of stock or other securities or property
receivable upon such reclassification, capital reorganization, merger
or consolidation, or upon the dissolution following any sale or other
transfer, which a holder of the number of shares of Common Stock of
the Company would obtain upon exercise of the Warrants immediately
prior to such event; and if any classification also results in a
change in shares of Common Stock covered by paragraph (14a) above,
then such adjustment shall be made pursuant to both paragraph (14a)
above and this paragraph (14d). The provisions of this paragraph (14d)
shall similarly apply to successive reclassifications, or capital
reorganizations, mergers or consolidations, sales or other transfers.
e. In case of the dissolution, liquidation or winding-up of the Company,
all rights under any of the Warrants not theretofore exercised nor
converted nor expired by their terms shall terminate on a date fixed
by the Company, such date so fixed to be not earlier than the date of
the commencement of the proceedings for such dissolution, liquidation
or winding-up and not later than thirty (30) days after such
commencement date. Notice of the termination of purchase rights shall
be given to the registered Holder of this Warrant as the same shall
appear on the books of the Company, by certified or registered mail at
least thirty (30) days prior to such termination date.
f. In case the Company shall, at any time prior to the Expiration Date of
the Warrants, and prior to the exercise or conversion thereof, offer
to the holders of its Common Stock any right to subscribe for
additional shares of any class of the Company, then the Company shall
give written notice thereof to the registered Holder of this Warrant
not less than thirty (30) days prior to the date on which the books of
the Company are closed or a record date fixed for the determination of
stockholders entitled to such subscription rights. Such notice shall
specify the date as to which the books shall be closed or record date
be fixed with respect to such offer or subscription, and the right of
the registered Holders hereof to participate in such offer or
subscription shall terminate if this Warrant shall not be exercised or
converted on or before the date of such closing of the books or such
record date.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly authorized officer effective this day, ______________________.
By ___________________________
Its Secretary
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