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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of this 11th day of August, 1997, between AIG Latin
America Equity Partners, Ltd., a Bermuda company (the "Fund") and Brazil Fast
Food Corp. (the "Company"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Stock Purchase
Agreement, dated as of the date hereof, between the Fund and the Company (the
"Stock Purchase Agreement").
WHEREAS, the Fund and the Company are entering into the Stock Purchase
Agreement dated the date hereof; and
WHEREAS, pursuant to the Stock Purchase Agreement, the Fund has agreed to
purchase and the Company has agreed to sell 1,500,000 shares of common stock,
$0.0001 par value per share of the Company (the "Common Stock"); and
WHEREAS, pursuant to the Stock Purchase Agreement, the Company has agreed
to issue to the Fund five-year warrants to purchase 250,000 shares of Common
Stock (the "Warrants") at an exercise price of $4.00 per share, subject to
anti-dilution and other adjustments pursuant to the provisions hereof.
NOW, THEREFORE, in consideration of the Fund executing and delivering the
Stock Purchase Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Fund hereby agree as follows:
SECTION 1. Warrants and Issuance of Warrant Certificates The Fund is entitled
to subscribe for and purchase from the Company, at any time or from time to
time subsequent to August 11, 1997 and prior to 5:00 p.m. on August 11,
2002, New York time (the "Exercise Period") initially an aggregate of 250,000
shares of fully paid, validly issued and nonassessable shares of Common Stock,
at a purchase price of $4.00 per share, subject to adjustment as provided
herein (the "Exercise Price").
(a) Each Warrant shall initially entitle the person in whose name such
Warrant is registered on the books of the Company (the "Registered
Holder") to purchase at the Exercise Price therefor, one share of
Common Stock upon
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the exercise thereof, subject to modification and adjustment as
hereinafter provided.
(b) Upon execution of this Agreement, one Warrant Certificate
(substantially in form attached hereto as Exhibit A) representing
250,000 Warrants to purchase initially up to an aggregate of 250,000
shares of Common Stock (subject to modification and adjustment as
hereinafter provided) shall be executed by the Company and delivered
to the Fund.
(c) From time to time, during the Exercise Period, as the case may be,
the Company shall countersign and deliver Warrant Certificates in
required denominations of one or whole number multiples thereof to
the person entitled thereto in connection with any transfer or
exchange permitted under this Agreement and the Stockholders'
Agreement, dated as of the date hereof, between the Fund, the Company
and the persons named in Schedule A thereto (the "Stockholders'
Agreement"). Except as provided in Section 7 hereof, no Warrant
Certificates shall be issued except (i) Warrant Certificates
initially issued pursuant to Section 1(b) hereof, (ii) Warrant
Certificates issued upon any transfer or exchange of Warrants, and
(iii) Warrant Certificates issued to reflect any adjustment or change
in the Exercise Price and the number of shares of Common Stock
purchasable upon exercise of the Warrants therefor made pursuant to
provisions of this Agreement.
SECTION 2. Form and Execution of Warrant
(a) The Warrant Certificates shall be substantially in the form
annexed hereto as Exhibit A (the provisions of which are hereby
incorporated herein) and may have such letters, numbers or other
marks of identification or designation and such legends,
summaries or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation
made pursuant thereto or to conform to usage. The Warrant
Certificates shall be dated the date of issuance thereof
(whether upon initial issuance, transfer, exchange or in lieu of
mutilated, lost, stolen or destroyed Warrant Certificates).
(b) Warrant Certificates shall be executed on behalf of the Company
by its Chairman of the Board, President or any Vice President
and by its Treasurer or an Assistant Treasurer or its Secretary
or an Assistant
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Secretary, by manual signatures or by facsimile signatures
printed thereon, and shall have imprinted thereon a manual or a
facsimile of the Company's seal.
SECTION 3. Election to Exercise The Warrants may be exercised in whole or in
part at any time during the Exercise Period by delivery of the Election to
Exercise attached hereto as Exhibit B duly executed (and, if this Warrant is
being exercised in whole, by the surrender of the Warrant Certificate
representing such Warrant) to the Company at its office at Praia do Flamenco,
200-22(degree) Andar, CEP ▇▇▇▇▇-▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Attention:
President, or such other place as may be designated in writing by the Company,
together with a certified or bank cashier's check payable to the order of the
Company in an amount equal to the Exercise Price multiplied by the number of
shares of Common Stock covered by such exercise.
SECTION 4. Exercise Upon exercise of the Warrants in whole or in part, the
Registered Holder shall be deemed to be the holder of record of the shares of
Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or certificates representing
such shares of Common Stock shall not then have been physically delivered to
the Registered Holder. As soon as practicable after each such exercise of the
Warrants, but not later than five days from the date of such exercise, the
Company shall issue and deliver to the Registered Holder a certificate or
certificates for the shares of Common Stock issuable upon such exercise,
registered in the name of the Registered Holder. The Company shall not be
required to issue stock certificates representing fractions of shares, but
shall, in respect of any final fraction of a share, make a payment in cash in
an amount equal to the same fraction (calculated to the nearest 1/100th of a
share) of the closing sale price per share of the Common Stock on the principal
public trading market on which the Common Stock is then traded, or, if the
Common Stock is not then traded on any public trading market, in an amount
determined in good faith by the Company's Board of Directors.
SECTION 5. Reservation of Shares; Taxes
(a) The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the
purpose of issue upon exercise of the Warrants, such number of
shares of Common Stock as shall then be issuable upon exercise
of the Warrants. The Company covenants that all shares of Common
Stock which shall be issuable upon exercise of the Warrants
shall, at the time of delivery thereof and upon payment of the
Exercise Price with respect thereto, be duly and validly issued
and fully paid and non-assessable and free from all preemptive
or similar rights, taxes, liens, charges and Encumbrances, and
that upon issuance such shares shall be listed on each
securities exchange, if any, on which the other shares of
outstanding Common Stock of the Company are then listed.
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(b) The Company shall pay all documentary, stamp or similar taxes
and other governmental charges that may be imposed with respect
to the issuance of Warrants, or the issuance or delivery of any
shares of Common Stock upon the exercise of the warrants.
SECTION 6. Exchange and Registration of Transfer
(a) The Warrants are transferable, subject to the provisions of the
Stockholders' Agreement.
(b) Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of Warrants,
or, subject to the limitations set forth in Section 6(h) hereof,
may be transferred in whole or in part. Warrant Certificates to
be so exchanged shall be surrendered to the Company at its
office at Praia do Flamenco, 200-22(degree) Andar, CEP
▇▇▇▇▇-▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Attention: President, and the
Company shall execute, issue and deliver in exchange therefor to
the Registered Holder a new Warrant Certificate or Certificates
representing an equal aggregate number of Warrants.
(c) The Company shall keep, at such office, books in which, subject
to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates, and the transfer thereof. Upon
due presentment for registration of transfer of any Warrant
Certificate at such office, the Company shall execute and shall
issue and deliver to the Registered Holder a new Warrant
Certificate or Certificates representing an equal aggregate
number of Warrants.
(d) With respect to any Warrant Certificates presented for
registration or transfer, or for exchange or exercise, the
subscription or assignment form accompanying the Warrant
Certificate(s), as the case may be, attached thereto shall be
duly endorsed or be accompanied by a written instrument or
instrument of transfer or subscription, in form satisfactory to
the Company, duly executed by the Registered Holder thereof or
his attorney duly authorized in writing.
(e) No service charge shall be made for any exchange of,
registration or transfer of Warrant Certificates.
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(f) All Warrant Certificates surrendered for exercise or for
exchange shall be promptly canceled by the Company.
(g) Prior to due presentment for registration or transfer thereof,
the Company may deem and treat the Registered Holder of any
Warrant Certificate as the absolute owner of each Warrant
represented thereby (notwithstanding any notations of ownership
or writing thereon made by anyone other than the Company) for
all purposes and shall not be affected by any notice to the
contrary.
(h) The Warrants represented by the Warrant Certificates may not be
exercised nor may any interest in the Warrants represented by
the Warrant Certificates be sold, assigned, pledged,
hypothecated, encumbered or in any other manner transferred or
disposed of, in whole or in part, except in compliance with
applicable United States federal and state securities or Blue
Sky laws and the terms and conditions hereof. Each Warrant
Certificate shall bear the legend set forth in Section 11
hereof. Each share of Common Stock issued upon exercise of the
Warrants shall bear a legend substantially in the form set forth
in Section 11 hereof. Any Warrant Certificate issued at any time
in exchange or substitution for any Warrant Certificate bearing
such legend shall also bear such legend unless, in the opinion
of legal counsel for the Company, the Warrants represented
thereby need no longer be subject to the restriction contained
herein. The provisions of this Section 6(h) shall be binding
upon all subsequent Registered Holders of the Warrant
Certificates.
SECTION 7. Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of any Warrant
Certificate and (in the case of loss, theft or destruction) of indemnity
satisfactory to it, and (in case of mutilation) upon surrender and cancellation
thereof, the Company shall execute and deliver in lieu thereof a new Warrant
Certificate to the Registered Holder thereof representing an equal aggregate
number of Warrants.
SECTION 8. Adjustment of Purchase Price
(a) Adjustments to Exercise Price for Diluting Issues.
(i) Special definitions. For purposes of this Subsection 8(a), the
following definitions shall apply:
(A) "Option" shall mean rights, options or warrants to subscribe
for, purchase or otherwise acquire Common Stock or Convertible Securities,
excluding (x) rights or options granted to employees, directors or consultants
of the Company pursuant to the currently existing stock option plan (the "Stock
Option Plan") and (y) outstanding warrants evidencing the
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right of the holders thereof to purchase an aggregate of 5,379,250 shares
of Common Stock, as more fully described in Schedule 4.3 of the Stock Purchase
Agreement (provided that, for purposes of this Subsection 8(a)(i)(A), all
shares of Common Stock issuable upon exercise of options granted or available
for grant under the Stock Option Plan and the warrants described in this
subparagraph (A), shall be deemed to be outstanding).
(B) "Original Issue Date" shall mean the date on which the
Warrants are first issued.
(C) "Convertible Securities" shall mean any evidences of
indebtedness, shares or other securities directly or indirectly convertible
into or exchangeable for Common Stock.
(D) "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued (or, pursuant to Subsection 8(a)(iii) below, deemed to be
issued) by the Company after the Original Issue Date, other than shares of
Common Stock issued or issuable upon the exercise of options excluded from the
definition of "Option" in Subsection 8(a)(i)(A).
(E) "Rights to Acquire Common Stock" (or "Rights") shall mean
all rights issued by the Company to acquire common stock whether by exercise of
a warrant, option or similar call or conversion of any existing instruments, in
either case for consideration fixed, in amount or by formula, as of the date of
issuance.
(ii) No Adjustment of Exercise Price. No adjustment in the number of
shares of Common Stock into which the warrants are convertible shall be made,
by adjustment in the applicable Exercise Price thereof: (a) unless the
consideration per share (determined pursuant to Subsection 8(a)(v) below) for
an Additional Share of Common Stock issued or deemed to be issued by the
Company is less than the applicable Exercise Price in effect on the date of,
and immediately prior to, the issue of such additional shares, or (b) if prior
to such issuance, the Company receives written notice from the Registered
Holders of at least sixty-six and two-thirds percent (66-2/3%) of the then
outstanding Warrants agreeing that no such adjustment shall be made as the
result of the issuance of Additional Shares of Common Stock.
(iii) Issue of Securities Deemed Issue of Additional Shares of Common
Stock. If the Company at any time or from time to time after the Original Issue
Date shall issue any Options or Convertible Securities or other Rights to
Acquire Common Stock, then the maximum number of shares of Common Stock (as set
forth in the instrument relating thereto without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options, Rights or, in the case of Convertible Securities, the
conversion or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the time of such issue, provided
that Additional Shares of Common Stock shall not be deemed to have been issued
unless the consideration per share (determined pursuant to Subsection 8(a) (v)
hereof) of such Additional Shares of Common Stock would be less than the
applicable Exercise Price in effect on the date of and immediately prior to
such issue, or such record date, as the case may be, and provided further that
in any such case in which Additional Shares of Common Stock are deemed to be
issued:
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(A) No further adjustment in the Exercise Price shall be made
upon the subsequent issue of shares of Common Stock upon the exercise of such
Rights or conversion or exchange of such Convertible Securities;
(B) Upon the expiration or termination of any unexercised Option
or Right, the Exercise Price shall not be readjusted, but the Additional Shares
of Common Stock deemed issued as the result of the original issue of such
Option or Right shall not be deemed issued for the purposes of any subsequent
adjustment of the Exercise Price; and
(C) In the event of any change in the number of shares of Common
Stock issuable upon the exercise, conversion or exchange of any Option, Right
or Convertible Security, including, but not limited to, a change resulting from
the anti-dilution provisions thereof, the Exercise Price then in effect shall
forthwith be readjusted to such Exercise Price as would have been obtained had
the adjustment that was made upon the issuance of such Option, Right or
Convertible Security not exercised or converted prior to such change been made
upon the basis of such change, but no further adjustment shall be made for the
actual issuance of Common Stock upon the exercise or conversion of any such
Option, Right or Convertible Security.
(iv) Adjustment of Exercise Price upon Issuance of Additional Shares
of Common Stock. If the Company shall at any time after the Original Issue Date
issue Additional Shares of Common Stock (including Additional Shares of Common
Stock deemed to be issued pursuant to Subsection 8(a)(iii), but excluding
shares issued as a dividend or distribution as provided in Subsection 8(c) or
upon a stock split or combination as provided in Subsection 8(b)), without
consideration or for a consideration per share less than the applicable
Exercise Price in effect on the date of and immediately prior to such issue,
then and in such event, such Exercise Price shall be reduced, concurrently with
such issue to a price (calculated to the nearest cent) determined by
multiplying such Exercise Price by a fraction, (a) the numerator of which shall
be (1) the number of shares of Common Stock outstanding immediately prior to
such issue plus (2) the number of shares of Common Stock which the aggregate
consideration received by the Company for the total number of Additional Shares
of Common Stock so issued would purchase at such Exercise Price; and (b) the
denominator of which shall be (1) the number of shares of Common Stock
outstanding immediately prior to such issue plus (2) the number of such
Additional Shares of Common Stock so issued.
Notwithstanding the foregoing, the applicable Exercise Price
shall not be reduced if the amount of such reduction would be an amount less
than $.01, but any such amount shall be carried forward and reduction with
respect thereto made at the time of and together with any subsequent reduction
which, together with such amount and any other amount or amounts so carried
forward, shall aggregate $.01 or more.
(v) Determination of Consideration. For purposes of this Subsection
8(a), the consideration received by the Company for the issue of any Additional
Shares of Common Stock shall be computed as follows:
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(A) Cash and Property: Such consideration shall:
(1.) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Company,
excluding amounts paid or payable for accrued interest
or accrued dividends;
(2.) insofar as it consists of property other than cash, be
computed at the fair market value thereof at the time
of such issue, as determined in good faith by the
Board of Directors; and
(3.) in the event Additional Shares of Common Stock are
issued together with other shares or securities or
other assets of the Company for consideration which
covers both, be the proportion of such consideration
so received, computed as provided in clauses (1.) and
(2.) above, as determined in good faith by the Board
of Directors.
(B) Options, Rights and Convertible Securities. The
consideration per share received by the Company for Additional Shares of Common
Stock deemed to have been issued pursuant to Subsection 8(a)(iii), relating to
Options, Rights and Convertible Securities, shall be determined by dividing
- the total amount, if any, received or receivable by the
Company as consideration for the issue of such Options,
Rights or Convertible Securities, plus the minimum
aggregate amount of additional consideration (as set forth
in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of
such consideration) payable to the Company upon the
exercise of such Options, Rights or the conversion or
exchange of such Convertible Securities, by
- the maximum number of shares of Common Stock (as set forth
in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of
such number) issuable upon the exercise of such Options or
the conversion or exchange of such Convertible Securities.
(b) Adjustment for Stock Splits and Combinations. If the Company shall at any
time or from time to time after the Original Issue Date effect a subdivision of
the outstanding Common Stock, the Exercise Price then in effect immediately
before that subdivision shall be proportionately decreased. If the Company
shall at any time or from time to time after the Original Issue Date combine
the outstanding shares of Common Stock, the Exercise Price then in effect
immediately
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before the combination shall be proportionately increased. Any
adjustment under this paragraph shall become effective at the close of business
on the date the subdivision or combination becomes effective.
(c) Adjustment for Certain Dividends and Distributions. In the event the
Company at any time, or from time to time after the Original Issue Date shall
make or issue, a dividend or other distribution payable in Additional Shares of
Common Stock, then and in each event the Exercise Price shall be decreased as
of the time of such issuance, by multiplying the Exercise Price by a fraction:
- the numerator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to
the time of such issuance, and
- the denominator of which shall be the total number of
shares of Common Stock issued and outstanding immediately
prior to the time of such issuance plus the number of
shares of Common Stock issuable in payment of such dividend
or distribution.
(d) Adjustments for Other Dividends and Distributions. In the event the Company
at any time or from time to time after the Original Issue Date shall make or
issue a dividend or other distribution payable in securities of the Company
other than shares of Common Stock, then and in each such event provision shall
be made so that the Registered Holders of the Warrants shall receive upon
conversion thereof in addition to the number of shares of Common Stock
receivable thereupon, the amount of securities of the Company that they would
have received had their Warrants been converted into Common Stock on the date
of such event and had thereafter, during the period from the date of such event
to and including the conversion date, retained such securities receivable by
them as aforesaid during such period given application to all adjustments
called for during such period, under this paragraph with respect to the rights
of the Registered Holders of the Warrants.
(e) Adjustment for Merger or Reorganization, etc. in case of any
consolidation or merger of the Company with or into another corporation or the
sale of all or substantially all of the assets of the Company to another
corporation,
1. if the surviving entity shall consent in writing to the
following provisions, then each Warrant shall thereafter be
convertible into the kind and amount of shares of stock or other
securities or property to which a holder of the number of shares
of Common Stock of the Company deliverable upon conversion of
the Warrants would have been entitled upon such consolidation,
merger or sale; and, in such case, appropriate adjustment (as
determined in good faith by the Board of Directors) shall be
made in the application of the provisions of this Section 8 with
respect to the rights and interest thereafter of the Registered
Holders of the Warrants, to the end that the provisions of this
Section 8 (including provisions
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with respect to changes in and other 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 conversion of the Warrants; or
2. if the surviving corporation shall not so consent, the each
registered Holder of the Warrants, may, after receipt of the notice
specified in subsection (g), elect to convert the Warrants into
shares of Common Stock as provided in Section 4 hereof.
(f) Adjustment for Reclassification, Exchange, or Substitution. If the Common
Stock issuable upon the conversion of the Warrants shall be changed into the
same or a different number of shares of any class or classes of stock, whether
by capital reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares or stock dividend provided for above, or a
reorganization, merger, consolidation, or sale of assets for above), then and
in each such event the Registered Holders of each Warrant shall have the right
thereafter to convert such Warrant into the kind and amount of shares of stock
and other securities and property receivable upon such reorganization,
reclassification, or other change, by holders of the number of shares of Common
Stock into which such Warrants might have been converted immediately prior to
such reorganization, reclassification, or change, all subject to further
adjustment as provided herein.
(g) Notice of Record Date. In the event:
1. that the Company declares a dividend (or any other
distribution) on its Common Stock payable in Common
Stock or other securities of the Company;
2. that the Company subdivides or combines its
outstanding shares of Common Stock;
3. of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of
its outstanding shares of Common Stock or a stock
dividend or stock distribution thereon), or of any
consolidation or merger of the Company into or with
another corporation, or of the sale of all or
substantially all of the assets of the Company; or
4. of the involuntary or voluntary dissolution,
liquidation or winding-up of the Company;
then the Company shall cause to be filed at its principal office, and shall
cause to be mailed to the Registered Holders of the Warrants at their last
addresses as shown on the records of the
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Company, at least ten days prior to the record date specified in (A) below
or twenty days before the date specified in (B) below, a notice stating
(A) the record date of such dividend, distribution,
subdivision or combination, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such dividend,
distribution, subdivision or combination are to be determined, or
(B) the date on which such reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, dissolution or winding-up.
(h) In addition to the foregoing, the Exercise Price of the Warrants shall be
subject to an aggregate adjustment of $0.75 per share as follows:
(i) If the Company fails to achieve 85% of projected
EBITDA for the three year period January 1, 1997
through December 31, 1999, as set forth in Schedule A
hereto, the Exercise Price shall be reduced by $0.25
per share; provided, however that if the average per
share price of the Common Stock for the thirty trading
days ending on December 31, 1999 is $6.00 or higher,
the exercise price of the Warrants shall not be
adjusted under this Section h(i).
(ii) If the Company fails to achieve 85% of projected
EBITDA for the one year period January 1, 2000 through
December 31, 2000, as set forth in Schedule A hereto,
the Exercise Price shall be reduced by an additional
$0.25 per share; provided, however that if the average
per share price of the Common Stock for the thirty
trading days ending on December 31, 2000 is $7.00 or
higher, the exercise price of the Warrants shall not
be adjusted under this Section h(ii).
(iii)If the Company fails to achieve 85% of projected
EBITDA for the one year period January 1, 2001 through
December 31, 2001, as set forth in Schedule A hereto,
the Exercise Price shall be reduced by an additional
$0.25 per share; provided, however that if the average
per share price of the Common Stock for the thirty
trading days ending on December 31, 2001 is $8.00 or
higher, the exercise price of the Warrants shall not
be adjusted under this Section h(iii).
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SECTION 9. Other Dilutive Events. In case any event shall occur as to which the
provisions of Sections 8 are not strictly applicable but the failure to make
any adjustment would not fairly protect the purchase rights represented by the
Warrants in accordance with the essential intent and principles of such
Section, then, in each such case, the Company shall make a good faith
adjustment to the Exercise Price and to the number of shares of Common Stock
into which the Warrants are exercisable in accordance with the intent of
Section 8 hereof and, upon the written request of the Registered Holder(s),
shall appoint a firm of independent certified public accountants of recognized
national standing (which may be the regular auditors of the Company), which
shall give their opinion upon the adjustment, if any, on a basis consistent
with the essential intent and principles established in Section 8 hereof,
necessary to preserve, without dilution, the purchase rights represented by the
Warrants. Upon receipt of such opinion, the Company shall promptly mail a copy
thereof to the Registered Holder(s) and shall make the adjustments described
therein.
SECTION 10. Covenants The Company will not, by amendment to its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of
this Agreement. Without limiting the generality of the foregoing, the Company
(a) will not increase the par value of any shares of stock
receivable upon the exercise of the Warrants above the amount
payable therefor upon such exercise,
(b) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid
and nonassessable shares of stock upon the exercise of the
Warrants from time to time outstanding, and
(c) without the prior written consent of the Registered Holder(s),
will not issue any security providing for anti-dilution
protection of such security.
SECTION 11. Legend. The Warrants and the shares of Common Stock issuable upon
exercise of the Warrants have not been registered under the Act as of the date
hereof. Subject to the provisions of Section 12 hereof, if on the date of
exercise of the Warrants, the Common Stock underlying the Warrants shall not
have been registered under the Securities Act, then upon such exercise, in part
or in whole, of the Warrants, certificates representing the shares of Common
Stock underlying the Warrants and any of the other securities issuable upon
exercise of the Warrants shall bear the following legend:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAWS AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR, UNLESS, IN THE OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, OR TRANSFER IS EXEMPT
FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE ACT AND SUCH LAWS.
SECTION 12. Registration Rights The Company and the Fund acknowledge and agree
that the Warrants and the shares of Common Stock underlying the Warrants are
subject to a Registration Rights Agreement between the Fund and the Company,
dated as of the date hereof.
SECTION 13. Notices All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or mailed by certified or registered mail, postage prepaid, return receipt
requested, or delivered to a nationally recognized next business day courier
for delivery on the next business day, or by facsimile, with a copy sent as
aforesaid and in any instance addressed as follows:
(i) if to the Fund
AIG Latin America Equity Partners, Ltd.
c/o Latin America Investment Advisors, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(ii) if to the Company
Brazil Fast Food Corp.
Praia do Flamenco
200-22(degree): Andar
CEP ▇▇▇▇▇-▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Vader
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with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇, Esq.
SECTION 14. Modification of Agreement This Agreement may not be modified,
supplemented or altered in any respect except with the consent in writing of
the Registered Holders representing not less than 51% of the Warrants and the
Company; provided, further, that no change in the number or nature of the
securities purchasable upon the exercise of any Warrant, or the Exercise Price
therefor shall be made without the consent in writing of the Registered Holder
of the affected Warrant, other than such changes as are specifically prescribed
by this Agreement as originally executed.
SECTION 15. Binding Effect This Agreement shall be binding upon and shall inure
to the benefit of, the parties hereto and their respective heirs, legal
representatives, successors, and permitted assigns and any transferee of any of
the Warrants or the Common Stock issuable upon exercise thereof.
SECTION 16. Governing Law This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
SECTION 17. Counterparts This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
BRAZIL FAST FOOD CORP.
By: /s/ ▇. ▇▇▇ ▇▇▇▇▇▇ Vader
-------------------------------------------
Name: ▇. ▇▇▇ ▇▇▇▇▇▇ Vader
Title: Chief Executive Officer
AIG LATIN AMERICA EQUITY PARTNERS, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
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EXHIBIT A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR
AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS, WHICH,
IN THE OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER, IS AVAILABLE.
NO. VOID AFTER August , 2002
WARRANT CERTIFICATE TO PURCHASE _____ SHARES OF COMMON STOCK
of
BRAZIL FAST FOOD CORP.
THIS CERTIFIES THAT, FOR VALUE RECEIVED
_________________________ or registered assigns (the "Registered
Holder")are the owners of the number of Common Stock Purchase Warrants (the
"Warrants") specified above. Each Warrant initially entitles the Registered
Holder to purchase, subject to the terms and conditions set forth in this
Certificate and the Warrant Agreement (as hereinafter defined), one fully paid
and nonassesable share of Common Stock, $.0001 par value per share, of Brazil
Fast Food Corp., a Delaware corporation (the "Company"), at any time beginning
on August__, 1997, and prior to the Expiration Date (as hereinafter defined)
upon the presentation and surrender of this Warrant Certificate with the
Election to Exercise Form on the reverse hereof duly executed, at the corporate
office of the Company, accompanied by payment of $4.00, subject to adjustment
(the "Exercise Price"), in lawful money of the United States of America in cash
or by check made payable to the Company.
This Warrant Certificate and each Warrant represented hereby are issued
pursuant to and are subject in all respects to the terms and conditions set
forth in the Warrant Agreement
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(the "Warrant Agreement"), dated as of August 11, 1997, by and between the
Company and the holder thereof.
In the event of certain contingencies provided for in the Warrant
Agreement, the Exercise Price and the number of shares of Common Stock subject
to purchase upon the exercise of each Warrant represented hereby are subject to
modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional interests will be issued. In the case of
the exercise of less than all the Warrants represented hereby, the Company
shall cancel this Warrant Certificate upon the surrender hereof and shall
execute and deliver a new Warrant Certificate or Certificates of like tenor for
the balance of such Warrant.
The term "Expiration Date" shall mean 5:00 p.m. (New York time) on August
__, 2002. If such date shall in the state of New York be a holiday or a day on
which the banks are authorized to close, then the Expiration Date shall mean
5:00 p.m. (New York time) the next following day which in the state of New York
is not a holiday or a day on which banks are authorized to close.
This Warrant shall not be exercisable by a Registered Holder in any state
where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by the
Registered Holder at the corporate office of the Company, for a new Warrant
Certificate or Certificates of like tenor representing an equal aggregate
number of Warrants, each of such new Warrant Certificates to represent such
number of Warrants as shall be designated by such Registered Holder at the time
of such surrender. Upon due presentment of this Warrant Certificate, for
registration of transfer a new Warrant Certificate representing an equal
aggregate number of Warrants will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Warrant Agreement.
Except as provided in the Warrant Agreement, prior to the exercise of any
Warrant represented hereby, the registered Holder shall not be entitled to any
rights of a stockholder of the Company, including, without limitation, the
right to vote or receive any notice of any proceedings of the Company.
Prior to the due presentment for registration of transfer hereof, the
Company may deem and treat the Registered Holder as the absolute owner hereof
and each Warrant represented hereby (notwithstanding any notations of ownership
or writing hereon made by anyone other than a duly authorized officer of the
Company) for all purposes and shall not be affected by any notice to the
contrary, except as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance
with the laws of the state of new York, without giving effect to conflicts of
law.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly
executed as of the date hereof.
Dated: August , ▇▇▇▇
▇▇▇▇▇▇ FAST FOOD CORP.
--------------------------------
Name: ▇. ▇▇▇ ▇▇▇▇▇▇ Vader
Title: Chief Executive Officer
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EXHIBIT B
TO: Brazil Fast Food Corp.
ELECTION TO EXERCISE
The undersigned hereby exercises its right to subscribe for and purchase
from Brazil Fast Food Corp. ____ fully paid, validly issued and nonassessable
shares of Common Stock covered by the within Warrant and tenders payment
herewith in the amount of $______ in accordance with the terms thereof, and
requests that certificates for such shares be issued in the name of and
delivered to:
------------------------
------------------------
------------------------
Date:____________________
----------------------------
By:
-------------------------
Name:
Title:
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