Form of Common Stock Purchase Warrant, dated between May 17 and October 24, 2007, by and between Venture and each of certain stockholders

 

 

Date of Issuance: May 17, 2007

Warrant to Purchase an aggregate of _____ shares of Common Stock

 

FOR VALUE RECEIVED, VENTURE BEVERAGE COMPANY a Nevada corporation (the “Corporation”) promises to issue in the name of, and sell and deliver to ______________ (the “Holder”) a certificate or certificates for an aggregate of _____ shares of the Corporation’s common stock, par value $0.001 per share (the “Common Stock”), upon payment by the Holder of the exercise price of $6.80 per share (the “Exercise Price”) set forth below, with the Exercise Price being subject to adjustment in the circumstances set forth below.

Section 1.

1.1 Exercise Period. Subject to the right of the Corporation to call the Warrant as set forth in Section 6 hereof, the Holder may exercise this Warrant, in whole or in part (but not as to fractional shares), at any time and time to time commencing on the date set forth above and ending at 5:00 p.m., Eastern Time, on May 17, 2012 (the “Exercise Period”).

1.2 Exercise Procedure.

a. This Warrant may be exercised in whole or in part at any time during the Exercise Period, provided however, if the last day of the Exercise Period is a day on which federal or state chartered banking institutions located in the State of Florida are authorized by law to close, then the last day of the Exercise Period shall be deemed to be the next succeeding day which shall not be such a day, by presentation and surrender to the Corporation at its principal office of this Warrant accompanied by the form of Exercise Agreement attached hereto as Exhibit 1 signed by the Holder and upon payment of the Exercise Price for the Common Stock purchased thereby, by cashier's check or by wire transfer of immediately available funds.

b. Certificates for the shares of Common Stock purchased upon exercise of this Warrant will be delivered by the Corporation to the Holder within five (5) business days after the Exercise Date. Unless this Warrant has expired or all of the purchase rights represented hereby have been exercised, the Corporation will prepare a new Warrant representing the rights formerly represented by this Warrant that have not expired or been exercised. The Corporation will, within such five (5) day period, deliver such new Warrant to the Holder at the address set forth in this Warrant.

 

 

c. The shares of Common Stock issuable upon the exercise of this Warrant will be deemed to have been transferred to the Holder on the Exercise Date, and the Holder will be deemed for all purposes to have become the record holder of such Common Stock on the Exercise Date.

d. The issuance of certificates for shares of Common Stock upon the exercise of this Warrant will be made without charge to the Holder of any issuance tax in respect thereof or any other cost incurred by the Corporation in connection with such exercise and related transfer of the shares; provided, however, that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any certificate or instrument in a name other than that of the Holder of this Warrant, and that the Corporation shall not be required to issue or deliver any such certificate or instrument unless and until the person or persons requiring the issue thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid.

e. The shares of Common Stock issuable upon the exercise of this Warrant have not been registered under the Securities Act and, accordingly, will be “restricted securities” as that term is defined in the Securities Act. The Corporation may insert the following or similar legend on the face of the certificates evidencing shares of Common Stock if required in compliance with state securities laws:

“These securities have not been registered under any state securities laws and may not be sold or otherwise transferred or disposed of except pursuant to an effective registration statement under any applicable state securities laws, or an opinion of counsel satisfactory to counsel to the Corporation that an exemption from registration under any applicable state securities laws is available.”

1.3 Fractional Shares. No fractional shares shall be issued upon the exercise of this Warrant. If a fractional share of Common Stock would, but for the provisions of Subsection 1.1, be issuable upon exercise of the rights represented by this Warrant, upon exercise the fractional share theretofore issuable shall be rounded up to the nearest whole sale of the Corporation' Common Stock.

Section 2.

2.1 Stock Dividends, Recapitalization or Reclassification of Common Stock. In case the Corporation shall at any time prior to the exercise or termination of this Warrant (i) pay a dividend or make a distribution of its capital stock in shares of Common Stock to all holders of shares of Common Stock, or (ii) effect a recapitalization or reclassification of such character that its Common Stock shall be changed into or become exchangeable for a larger or smaller number of shares, then, upon the effective date thereof, the number of shares of Common Stock that the Holder of this Warrant shall be entitled to purchase upon exercise hereof shall be increased or decreased, as the case may be, in direct proportion to the increase or decrease in such number of shares of Common Stock by reason of such stock dividend, recapitalization or reclassification, and the Exercise Price of such dividend, recapitalized or reclassified Common Stock shall, in the case of an increase in the number of shares, be proportionately decreased and, in the case of a decrease in the number of shares, be proportionately increased.

2.2 Consolidation, Merger or Sale. In case the Corporation shall at any time prior to the exercise of this Warrant, or the expiration of the Exercise Period, whichever first occurs, consolidate or merge with any other corporation (unless the Corporation shall be the surviving entity) or transfer all or substantially all of its assets to any other corporation preparatory to a dissolution, then the Corporation shall, as a condition precedent to such transaction, cause effective provision to be made so that the Holder of this Warrant, upon the exercise thereof after the effective date of such transaction, shall be entitled to receive the kind and amount of shares, evidences of indebtedness, and/or other property receivable on such transaction by a holder of the number of shares of Common Stock as to which the Warrant was exercisable immediately prior to such transaction (without giving effect to any restriction upon such exercise); and, in any such case, appropriate provision shall be made with respect to the rights and interests of the Holder hereof to the effect that the provisions of this Warrant shall thereafter be applicable (as nearly as may be practicable) with respect to any shares, evidences of indebtedness, or other securities or assets thereafter deliverable upon exercise of this Warrant.

 

 

2.3 Notice of Adjustment. Whenever the number of shares of Common Stock purchasable upon exercise of this Warrant shall be adjusted as provided herein, the Corporation shall file with its corporate records a certificate of its chief financial or accounting officer setting forth the computation and the adjusted number of shares of Common Stock purchasable hereunder resulting from such adjustments, and a copy of such certificate shall be mailed to the Holder. Any such certificate or letter shall be conclusive evidence as to the correctness of the adjustment or adjustments referred to therein and shall be available for inspection by the holders of the Warrants on any day during normal business hours.

 

Section 3.

The Corporation will at all time reserve and keep available such number of shares of Common Stock as will be sufficient to permit the exercise in full of this Warrant. Upon exercise of this Warrant pursuant to its terms, the Holder will acquire fully paid and non-assessable ownership rights of the Common Stock, free and clear of any liens, claims or encumbrances.

Section 4.

This Warrant will not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Corporation. Until the shares of Common Stock issuable upon the exercise of this Warrant are recorded as issued on the books and records of the Corporation, the Holder shall not be entitled to any voting rights or other rights as a stockholder; provided, however, that the Corporation shall use its bests efforts to ensure that, upon receipt of the Exercise Agreement and payment of the Exercise Price, the appropriate documentation necessary to effectuate the exercise of the Warrant and the issuance of the Common Stock is accomplished as expeditiously as possible. No provision of this Warrant, in the absence of affirmative action by the Holder to purchase Common Stock, and no enumeration in this Warrant of the rights or privileges of the Holder, will give rise to any obligation of such Holder for the Exercise Price or as a stockholder of the Corporation.

Section 5.

Neither this Warrant nor any rights hereunder are transferable, in whole or in part, without the prior written consent of the Corporation, which such consent may not be forthcoming. In the event the Corporation should consent to such transfer, this Warrant and the rights under shall be transferable upon surrender of this Warrant with a properly executed Assignment in the form of Exhibit 2 hereto at the principal offices of the Corporation. The Corporation has no obligation to recognize any purported transfer of this Warrant, and the transferee is not entitled to any rights under this Warrant, until such acknowledgment has been received by the Corporation. This Warrant and the underlying shares of Common Stock may not be offered, sold or transferred except in compliance with the Securities Act, and any applicable state securities laws, and then only against receipt of an agreement of the person to whom such offer or sale or transfer is made to comply with the provisions of this Warrant with respect to any resale or other disposition of such securities; provided that no such agreement shall be required from any person purchasing this Warrant or the underlying shares of Common Stock pursuant to a registration statement effective under the Securities Act. The Holder of this Warrant agrees that, prior to the disposition of any security purchased on the exercise hereof other than pursuant to an registration statement then effective under the Securities Act, or any similar statute then in effect, the Holder shall give written notice to the Corporation, expressing his intention as to such disposition. Upon receiving such notice, the Corporation shall present a copy thereof to its securities counsel. If, in the sole opinion of such counsel, which such opinion shall not be unreasonably withheld, the proposed disposition does not require registration of such security under the Securities Act, or any similar statute then in effect, the Corporation shall, as promptly as practicable, notify the Holder of such opinion, whereupon the Holder shall be entitled to dispose of such security in accordance with the terms of the notice delivered by the Holder to the Corporation.

 

 

Section 6.

Subject to the terms and conditions set forth herein, on any date during the period between the date of this Warrant and the Expiration Date, upon thirty (30) days prior written notice to the Holder (each, a “Call Notice”) the Corporation shall have the right to call any or all of the Warrant at a call price of $0.01 per underlying share (the “Call Price”). Warrant holders shall have the period from the date of the Call Notice, which shall be delivered to the Holder pursuant to Section 7.1 hereof, until 5 p.m., Eastern time, on the thirtieth (30) day following the Call Notice (the "Call Date") to exercise the Warrant pursuant to the terms hereof. Any Warrants which have been called but remain unexercised by the Call Date shall automatically terminate and no longer entitle the Holder to exercise such Warrant or to receive any consideration therefor, other than the Call Price. For any Warrants which are not exercised by the Call Date, the Corporation shall promptly as possible following the Call Date pay the Call Price to the Holder of any Warrants which have been called and not exercised.

Section 7.

7.1 Notices. Any notices, requests or consents hereunder shall be deemed given, and any instruments delivered, two days after they have been mailed by first class mail, postage prepaid, or upon receipt if delivered personally or by facsimile transmission, as follows:

If to the Corporation:     450 East Las Olas Boulevard

            Suite 830

            Fort Lauderdale, Florida 33301

            Attention: Mr. Theodore Farnsworth, President and CEO

If to the Holder:        To the address on the Corporation's books and records.

except that any of the foregoing may from time to time by written notice to the other designate another address which shall thereupon become its effective address for the purposes of this paragraph.

7.2 Entire Agreement. This Warrant, including the exhibits and documents referred to herein which are a part hereof, contain the entire understanding of the parties hereto with respect to the subject matter and may be amended only by a written instrument executed by the parties hereto or their successors or assigns. Any paragraph headings contained in this Warrant are for reference purposes only and shall not affect in any way the meaning or interpretation of this Warrant.

 

 

7.3 Construction and Enforcement. This Warrant shall be governed by and construed under the laws of the State of Florida, without regard to principles of conflicts of laws and rules of such state. If it becomes necessary for any party to institute legal action to enforce the terms and conditions of this Warrant, and such legal action results in a final judgment in favor of such party (“Prevailing Party”), then the party or parties against whom said final judgment is obtained shall reimburse the Prevailing Party for all direct, indirect or incidental expenses incurred, including, but not limited to, all attorneys’ fees, court costs and other expenses incurred throughout all negotiations, trials or appeals undertaken in order to enforce the Prevailing Party's rights hereunder. Any suit, action or proceeding with respect to this Warrant shall be brought in the state or Federal courts located in Broward County in the State of Florida. The parties hereto hereby accept the exclusive jurisdiction and venue of those courts for the purpose of any such suit, action or proceeding. The parties hereto hereby irrevocably waive, to the fullest extent permitted by law, any objection that any of them may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Warrant or any judgment entered by any court in respect thereof brought in Broward County, Florida, and hereby further irrevocably waive any claim that any suit, action or proceeding brought in Broward County, Florida, has been brought in an inconvenient forum.

IN WITNESS WHEREOF, this Warrant has been duly executed and the corporate seal affixed hereto, all as of the day and year first above written.

	VENTURE BEVERAGE COMPANY
	By:
		Theodore Farnsworth, its President
ATTEST:

 

 

To:

Dated:

 

The undersigned record Holder, pursuant to the provisions set forth in the within Warrant, hereby subscribed for and purchases 29,411 shares of Common Stock covered by such Warrant and hereby makes full cash payment of $199,994.80 for such shares at the Exercise Price provided by such Warrant.

		(Signature)
		(Print or type name)
		(Address)

NOTICE: The signature of this Exercise Agreement must correspond with the name as written upon the face of the within Warrant, or upon the Assignment thereof, if applicable, in every particular, without alteration, enlargement or any change whatsoever.