-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, h77Xva4SvbILyP5Fk48Wfxg1CxiPExskTYzGGpKvZYmfhQ544uDFx5iCAHqhMo+A BoMD5gM3ZgwsTYJ9IcaDMQ== 0000921895-95-000081.txt : 19950804 0000921895-95-000081.hdr.sgml : 19950804 ACCESSION NUMBER: 0000921895-95-000081 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19950802 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALPINE LACE BRANDS INC CENTRAL INDEX KEY: 0000791714 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & RELATED PRODUCTS [5140] IRS NUMBER: 222717823 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-61527 FILM NUMBER: 95558563 BUSINESS ADDRESS: STREET 1: 111 DUNNELL RD CITY: MAPLEWOOD STATE: NJ ZIP: 07040 BUSINESS PHONE: 2013788600 MAIL ADDRESS: STREET 1: 111 DUNNELL ROAD CITY: MAPLEWOOD STATE: NJ ZIP: 07040 FORMER COMPANY: FORMER CONFORMED NAME: FIRST WORLD CHEESE INC DATE OF NAME CHANGE: 19910813 S-3 1 FORM S-3 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on August 2, 1995 Registration No. 33-_____ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------- ALPINE LACE BRANDS, INC. - -------------------------------------------------------------------------------- (Exact name of Registrant as specified in its charter) Delaware 22-2717823 - --------------------------------------- --------------------- (State or other jurisdiction of (IRS Employer incorporation or organization) Identification Number) --------------------------- 111 Dunnell Road Maplewood, New Jersey 07040 (201) 378-8600 - -------------------------------------------------------------------------------- (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) --------------------------- Carl T. Wolf Alpine Lace Brands, Inc. 111 Dunnell Road Maplewood, New Jersey 07040 (201) 378-8600 - -------------------------------------------------------------------------------- (Name, address, including zip code, and telephone number, including area code, of agent for service) Copy to: Robert H. Friedman, Esq. Olshan Grundman Frome & Rosenzweig LLP 505 Park Avenue New York, New York 10022 --------------------------- Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. | | If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or reinvestment plans, check the following box. |X|
CALCULATION OF REGISTRATION FEE ==================================================================================================================================== Proposed Maximum Proposed Title of each Class of Offering Maximum Amount of Securities to be Amount to be Price Per Aggregate Registration Registered Registered Share(1) Offering Price Fee - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $.01 par 310,950(2) $8.56 $2,661,732.00 $917.84 value, issuable upon conversion of the Preferred Stock - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $.01 par 20,000(3) $6.19(4) $123,800.00 $42.69 value, issuable upon exercise of Warrants - ------------------------------------------------------------------------------------------------------------------------------------ Total $960.53 ====================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act of 1933, as amended (the "Securities Act"), based upon $8.56, the per share average of high and low sales prices of the Common Stock on the Nasdaq Stock Market on July 28, 1995. (2) Based upon conversion of 45,000 shares of Preferred Stock at a rate of 6.91 shares of Common Stock per each share of Preferred Stock. (3) Pursuant to Rule 416 under the Securities Act, this Registration Statement also relates to an indeterminate number of additional shares that may be issued as result of anti-dilution provisions of the Warrants. (4) Based upon an exercise price for the Warrants of $6.19 per share. The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. ALPINE LACE BRANDS, INC. CROSS REFERENCE SHEET Pursuant to Item 501(b) of Regulation S-K Showing Location in Prospectus of Information Required by Items of Form S-3 ITEM NUMBER AND HEADING IN CAPTION OR FORM S-3 REGISTRATION STATEMENT LOCATION IN PROSPECTUS 1. Forepart of the Registration Statement and Outside Front Cover Page of Prospectus.... Forepart of the Registration Statement; Outside Cover Page of Prospectus 2. Inside Front and Outside Back Cover Pages of Prospectus................................. Inside Front Cover Page of Prospectus 3. Summary Information, Risk Factors and Ratio of Earnings to Fixed Charges............ The Company; Risk Factors 4. Use of Proceeds............................... Use of Proceeds 5. Determination of Offering Price............... * 6. Dilution...................................... * 7. Selling Security Holders...................... Selling Stockholders 8. Plan of Distribution.......................... Plan of Distribution 9. Description of Securities to be Registered.... * 10. Interests of Named Experts and Counsel........ * 11. Material Changes.............................. * 12. Incorporation of Certain Information by Reference.................................. Incorporation of Certain Documents by Reference 13. Disclosure of Commission Position on Indemnification for Securities Act Liabilities................................... * - ------------------ * Not applicable. INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. SUBJECT TO COMPLETION, DATED AUGUST 2, 1995 PROSPECTUS 330,950 SHARES ALPINE LACE BRANDS, INC. Common Stock ($.01 par value) This Prospectus relates to the reoffer and resale by certain selling stockholders (the "Selling Stockholders") of shares (the "Shares") of the Common Stock, $.01 par value (the "Common Stock"), of Alpine Lace Brands, Inc. (the "Company") that will be issued by the Company to the Selling Stockholders upon (i) conversion of the Company's Series A 7.50% Cumulative Convertible Preferred Stock (the "Preferred Stock") and (ii) exercise of Warrants (the "Warrants") held by certain entities who received such warrants in connection with the Company's private placement offering of the Preferred Stock consummated on March 22, 1995. The Shares are being reoffered and resold for the account of the Selling Stockholders and the Company will not receive any of the proceeds from the resale of the Shares. The Selling Stockholders have advised the Company that the resale of their Shares may be effected from time to time in one or more transactions in the over-the-counter market, in negotiated transactions or otherwise at market prices prevailing at the time of the sale or at prices otherwise negotiated. The Selling Stockholders may effect such transactions by selling the Shares to or through broker-dealers who may receive compensation in the form of discounts, concessions or commissions from the Selling Stockholders and/or the purchasers of the Shares for whom such broker-dealers may act as agent or to whom they sell as principal, or both (which compensation as to a particular broker-dealer may be in excess of customary commissions). Any broker-dealer acquiring the Shares from the Selling Stockholders may sell such securities in its normal market making activities, through other brokers on a principal or agency basis, in negotiated transactions, to its customers or through a combination of such methods. See "Plan of Distribution." The Company will bear all expenses in connection with the preparation of this Prospectus. - -------------------------------------------------------------------------------- AN INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK AND SHOULD ONLY BE MADE BY INVESTORS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT. SEE "RISK FACTORS" AT PAGE 3 HEREOF. - -------------------------------------------------------------------------------- The Common Stock of the Company is traded on the Nasdaq Stock Market ("Nasdaq") under the symbol "LACE." On July 28, 1995, the last sale price for the Common Stock, as reported by Nasdaq, was $8.38. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is August , 1995. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549; 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and Seven World Trade Center, Suite 1300, New York, New York 10048. Copies of such material can be obtained from the Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Company's Annual Report on Form 10-K for the year ended December 31, 1994 and the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 are incorporated by reference in this Prospectus and shall be deemed to be a part hereof. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of this offering, are deemed to be incorporated by reference in this Prospectus and shall be deemed to be a part hereof from the date of filing of such documents. The Company's Application for Registration of its Common Stock under Section 12(g) of the Exchange Act filed on April 9, 1987 is incorporated by reference in this Prospectus and shall be deemed to be a part hereof. The Company hereby undertakes to provide without charge to each person to whom a copy of this Prospectus has been delivered, on the written or oral request of any such person, a copy of any or all of the documents referred to above which have been or may be incorporated in this Prospectus by reference, other than exhibits to such documents. Written requests for such copies should be directed to Alpine Lace Brands, Inc. at 111 Dunnell Road, Maplewood, New Jersey 07040, Attention: Secretary. Oral requests should be directed to such officer (telephone number (201) 378-8600). --------------------- No dealer, salesman or other person has been authorized to give any information or to make any representations other than those contained in this Prospectus in connection with the offer made hereby, and, if given or made, such information or representations must not be relied upon as having been authorized by the Company or the Selling Stockholders. This Prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, the securities offered hereby to any person in any state or other jurisdiction in which such offer or solicitation is unlawful. The delivery of this Prospectus at any time does not imply that information contained herein is correct as of any time subsequent to its date. -2- THE COMPANY The Company is the leading seller of nutritional cheeses in the nation's supermarket deli cases, with a market share of over 50%. The Company develops, markets and sells nutritional (i.e., reduced salt, reduced cholesterol and reduced fat or fat free) cheeses under its own branded labels. The Company's products include a full line of products which have reduced salt, cholesterol and fat levels as compared to conventional cheeses and a line of fat free cheeses. The Company's cheeses are principally sold in supermarket deli cases under the Alpine Lace(R) brand name. The Company's part-skim milk reduced fat and low sodium swiss cheese is the number one selling brand of all swiss cheeses in supermarket deli cases and, according to a recent survey undertaken by the Company, the Alpine Lace(R) brand name is second only to Kraft(R) in unaided consumer awareness. The Company has utilized proprietary formulations and/or patented process technology in the development of its core products. In contrast to certain competitive cheese substitute and imitation cheese "nutritional" products, the Company's products are all made from milk. The Company's products have the look, taste, texture, feel and handling characteristics of conventional cheeses. During 1994, approximately 85% of the Company's own branded cheese sales were through supermarket deli cases and the remainder through supermarket dairy cases. The Company believes that it currently controls in excess of 50% of the nutritional cheese segment of the supermarket deli case market. The Company also trades cheese and dairy commodity products through its MCT Dairies, Inc. subsidiary. The Company's executive offices are located at 111 Dunnell Road, Maplewood, New Jersey 07040. The Company's telephone number at such location is (201) 378- 8600. The Shares offered hereby were or will be purchased by the Selling Stockholders upon conversion of the Preferred Stock and exercise of the Warrants and will be sold for the accounts of the Selling Stockholders. RISK FACTORS The securities offered hereby involve a high degree of risk. Prospective investors should carefully consider the following risk factors before making an investment decision. History of Losses; Recent Restructuring. For the years ended December 31, 1994, 1993 and 1992, the Company sustained net losses of $3,122,989, $4,040,254 and $40,277, respectively. During 1994, while the Company generated pretax earnings, the Company had restructuring and write down charges aggregating $4,100,000. There can be no assurance that the Company will achieve profitability or that it will not incur further similar charges in the future. Default under Indebtedness. As a result of the Company's recent restructuring, it failed to meet certain covenants contained in its loan agreement with its primary lender under which it had outstanding approximately $7,000,000 of indebtedness at December 31, 1994. The lender waived those defaults at December 31, 1994 and as of February 23, 1995, the Lender amended the covenants and the Company is no longer in default. Dependence on Significant Customers. During 1994, the Company's largest customer accounted for approximately 6% of the Company's own-label branded cheese revenues and the ten largest customers accounted for approximately 31% of such revenues. The loss of several of the ten largest customers might have a material adverse effect on the Company's operations. Competition in the Deli Counter. Many food companies with substantially greater resources than those available to the Company market products for sale in the supermarket deli counter. While the Company commands a dominant share in the deli cheese segment, there can be no assurance that new competitors will not enter this segment of the deli business. -3- Cheese Prices. Cheese costs represent a significant portion of the Company's cost of goods sold. The Company's profitability is impacted by the price of cheese. The Company's results are negatively impacted when the price of cheese rises while they are positively impacted when the price of cheese declines. Except for some relatively short-term price volatility, cheese prices have remained relatively stable averaging $1.285 over the past several years. The general pricing practice that the Company follows is to decrease prices when cheese falls below $1.20/lb. and to increase prices when cheese rises above $1.40/lb. Although the Company believes that the long-term prognosis for cheese prices is favorable, no assurances can be given that cheese prices will not rise. Dependence on Key Personnel. The Company is dependent on several key executives, the loss of any one of whom could have a material adverse impact on the operations and prospects of the Company. Employment agreements have been entered into with several of the Company's key senior managers and in addition, the Company holds a key-man life insurance policy of $5,000,000 on the life of Mr. Wolf. Dependence on Suppliers. The Company purchases virtually 100% of its cheese requirements from independent third party suppliers, and approximately 70% of its requirements from five suppliers. Any disruption in the operations of these suppliers may have an adverse impact on the Company. The Company has maintained strong relationships with its top five vendors since its founding in 1983 and has not experienced any problems in sourcing cheese. Control of the Company. Carl T. Wolf, the Company's Chairman of the Board, President and Chief Executive Officer, beneficially owns approximately 34% of the outstanding Common Stock. Since the Company's Certificate of Incorporation and By-Laws do not provide for cumulative voting rights, Mr. Wolf has significant power with respect to the election of the Board of Directors, and to control the Company's management and affairs. -4- USE OF PROCEEDS The Company will not receive any of the proceeds from the reoffer and resale of the Shares by the Selling Stockholders. The Company will receive the exercise price of the Warrants, if and when exercised. Such proceeds will be used by the Company for working capital purposes. SELLING STOCKHOLDER The following table sets forth (i) the number of shares of Common Stock to be owned by each Selling Stockholder, (ii) the number of shares to be offered for resale by each Selling Stockholder and (iii) the number and percentage of shares of Common Stock to be held by each Selling Stockholder after the completion of the offering.
Number of shares of Common Stock/ Number of shares of Number of Percentage of Common Stock Shares to be Class to be Owned beneficially owned Offered for After Completion Name prior to Offering Resale of the Offering - ------------------------------ --------------------- ------------ ------------------- Whiffletree Partners L.P. 34,550(1) 34,550(1) 0 Chase Manhattan TTEE for 138,200(1) 138,200(1) 0 IBM Retirement Plan Bankers Trust TTEE for 138,200(1) 138,200(1) 0 Chrysler Pension Plan Wm Smith & Co. 10,000(2) 10,000(2) 0 Gilmore & Co., Inc. 10,000(2) 10,000(2) 0
___________________ (1) Consists of shares of Common Stock issuable upon conversion of the Preferred Stock. (2) Consists of shares of Common Stock issuable upon exercise of the Warrants. PLAN OF DISTRIBUTION This offering is self-underwritten; neither the Company nor the Selling Stockholders have employed an underwriter for the sale of Common Stock by the Selling Stockholders. The Company will bear all expenses in connection with the preparation of this Prospectus. The Selling Stockholders will bear all expenses associated with the sale of the Shares. Subject to the foregoing, the Shares may be offered for the account of the Selling Stockholders from time to time in the over-the-counter market or in negotiated transactions, at fixed prices which may be changed or at negotiated prices. The Selling Stockholders may effect such transactions by selling Shares to or through broker-dealers, and all such broker-dealers may receive compensation in the form of discounts, concessions, or commissions from the Selling Stockholders and/or the purchasers of Shares for whom such broker-dealers may act as agent or to whom they sell as principal, or both (which compensation as to a particular broker-dealer might be in excess of customary commissions). Any broker-dealer acquiring Shares from the Selling Stockholders may sell the Shares either directly, in its normal market-making activities, through or to other brokers on a principal or agency basis or to its customers. Any such -5- sales may be at prices then prevailing in the over-the-counter market or at prices related to such prevailing market prices or at negotiated prices to its customers or a combination of such methods. The Selling Stockholders and any broker-dealers that act in connection with the sale of the Common Stock hereunder might be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act of 1933, as amended; any commissions received by them and any profit on the resale of Shares as principal might be deemed to be underwriting discounts and commissions under the Securities Act. Any such commissions, as well as other expenses incurred by the Selling Stockholders and applicable transfer taxes, are payable by the Selling Stockholders. LEGAL MATTERS Certain legal matters in connection with the issuance of the Shares offered hereby have been passed upon for the Company by Olshan Grundman Frome & Rosenzweig, 505 Park Avenue, New York, New York 10022. EXPERTS The consolidated financial statements of Alpine Lace Brands, Inc., as of December 31, 1994 and 1993 and for each of the years in the three-year period ended December 31, 1994 have been incorporated herein in reliance upon the report of Grant Thornton LLP, independent certified public accountants, and upon the authority of said firm as experts in accounting and auditing. ADDITIONAL INFORMATION The Company has filed with the Securities and Exchange Commission a Registration Statement on Form S-3 under the Securities Act with respect to the Shares offered hereby. For further information with respect to the Company and the securities offered hereby, reference is made to the Registration Statement. Statements contained in this Prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance, reference is made to the copy of such contract or document filed as an exhibit to the Registration Statement, each such statement being qualified in all respects by such reference. -6- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The expenses in connection with the issuance and distribution of the securities being registered, all of which will be paid by the Registrant, are as follows: SEC Registration Fee............................... $960.53 Accounting Fees and Expenses....................... 5,500.00 Legal Fees and Expenses............................ 9,000.00 Blue Sky Fees and Expenses......................... 550.00 Miscellaneous Expenses............................. 989.47 ---------- Total.............................................. $17,000.00 ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Except as hereinafter set forth, there is no statute, charter provision, by-law, contract or other arrangement under which any controlling person, director or officer of the Company is insured or indemnified in any manner against liability which he may incur in his capacity as such. The by-laws of the Company provide that the Company shall indemnify to the extent permitted by Delaware law, any person whom it may indemnify thereunder, including directors, officers, employees and agents of the Company and its predecessor. The Company also maintains a $2,000,000 directors and officers insurance policy. Section 145 of the Delaware General Corporation Law provides as follows: (a) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best II-1 interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (b) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made (1) by a majority vote of the directors who are not parties to such action, suit or proceeding even though less than a quorum, or (2) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (3) by the stockholders. (e) Expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition or such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section. Such expenses incurred by other employees and agents may be paid upon such terms and conditions, if any, as the board of directors deems appropriate. II-2 (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. (g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under this section. (h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had the power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any such excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to any employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner reasonably believed to be in the interest of the participants and beneficiaries of any employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section. (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ----------- ------------ ---------- II-3 ITEM 16. EXHIBITS. EXHIBIT INDEX EXHIBIT 3 Certificate of Incorporation, as amended, incorporated by reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994. 4(a) Registration Rights Agreement dated March 21, 1995, by and among the Company and the holders designated therein, incorporated by reference to Exhibit 4.3 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994. 4(b) Warrant dated as of March 23, 1995, entitling Wm. Smith & Co. to purchase up to 10,000 shares of Common Stock. 4(c) Warrant dated as of March 23, 1995, entitling Craig Gilmore to purchase up to 10,000 shares of Common Stock. 5 Opinion of Olshan Grundman Frome & Rosenzweig LLP with respect to the securities registered hereunder. 23(a) Consent of Grant Thornton LLP 23(b) Consent of Olshan Grundman Frome & Rosenzweig LLP (included within Exhibit 5). 24 Power of Attorney (included on signature page to this Registration Statement). ITEM 17. UNDERTAKINGS The undersigned registrant hereby undertakes: a. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. b. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-4 c. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against each such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the Township of Maplewood, State of New Jersey, on this 2nd day of August, 1995. ALPINE LACE BRANDS, INC. ------------------------ (Registrant) By: /s/ Carl T. Wolf --------------------------------- Carl T. Wolf, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Carl T. Wolf his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated. SIGNATURE TITLE DATE /s/ Carl T. Wolf Chairman of the Board, August 2, 1995 - ------------------------- President and Chief Carl T. Wolf Executive Officer (principal executive officer) and Director /s/ Arthur Karmel Vice President - Finance August 2, 1995 - ------------------------ (principal financial Arthur Karmel officer and principal accounting officer) /s/ Marion F. Wolf Vice President-Food August 2, 1995 - ----------------------- Service and Director Marion F. Wolf /s/ Richard Cheney Director August 2, 1995 - ----------------------- Richard Cheney II-6 /s/ Howard M. Lorber Director August 2, 1995 - ---------------------- Howard M. Lorber - ---------------------- Director August __, 1995 Richard S. Hickok - ---------------------- Director August __, 1995 Joseph R. Rosetti /s/ Stephen Sandove Director August 2, 1995 - ---------------------- Stephen Sadove /s/ Marvin Schiller - ---------------------- Director August 2, 1995 Marvin Schiller II-7 EX-4.(B) 2 WM. SMITH & CO. WARRANT THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND NEITHER THIS WARRANT NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND THE RULES AND REGULATIONS THEREUNDER. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS WARRANT REPRESENTS THAT IT IS ACQUIRING THIS WARRANT FOR INVESTMENT AND AGREES TO COMPLY IN ALL RESPECTS WITH ANY APPLICABLE STATE SECURITIES LAWS COVERING THE PURCHASE OF THIS WARRANT AND RESTRICTING ITS TRANSFER, COPIES OF WHICH MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS WARRANT TO THE SECRETARY OF THIS COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE AT 111 DUNNELL ROAD, MAPLEWOOD, NEW JERSEY 07040. Dated: As of March 23, 1995 WARRANT To purchase up to 10,000 Shares of Common Stock ALPINE LACE BRANDS, INC. Expiring March 21, 2000 THIS IS TO CERTIFY THAT, for value received, WM SMITH & CO., or registered assigns (the "Holder"), is entitled, subject to certain conditions set forth in Section 1.01 hereof, to purchase from ALPINE LACE BRANDS, INC., a Delaware corporation (the "Company"), at any time or from time to time after 9:00 a.m., New York City time, on the date hereof and prior to 5:00 p.m. New York City time, on March 21, 2000, at the Company's principal executive office, at the Exercise Price, up to the number of shares of Common Stock, $.01 par value per share (the "Common Stock"), of the Company shown above, all subject to adjustment and upon the terms and conditions as hereinafter provided, and is entitled also to exercise the other appurtenant rights, powers and privileges hereinafter described. Certain terms used in this Warrant are defined in Article IV hereof. ARTICLE I METHOD OF EXERCISE 1.01. Method of Exercise. To exercise this Warrant in whole or in part, the Holder shall deliver to the Company, at the Company's principal executive office (a) this Warrant, (b) a written notice of such Holder's election to exercise this Warrant, which notice shall specify the number of shares of Common Stock to be purchased, but in no event less than 1,000 shares, the denominations of the share certificate or certificates desired and the name or names in which such certificates are to be registered, and (c) payment of the Exercise Price with respect to such shares. Such payment may be made, at the option of the Holder, in cash, by certified or bank cashier's check, money order or wire transfer, or in any other manner consented to in writing by the Company, or any combination thereof. The Company shall, as promptly as practicable after receipt of the items required by the previous paragraph, execute and deliver or cause to be executed and delivered, in accordance with such notice, a certificate or certificates representing the aggregate number of shares of Common Stock specified in said notice. The share certificate or certificates so delivered shall be in such denominations as may be specified in such notice or, if such notice shall not specify denominations, in denominations of 100 shares each, and shall be issued in the name of the Holder or such other name as shall be designated in such notice. Such certificate or certificates shall be deemed to have been issued, and such Holder or Holders or any other person so designated to be named therein shall be deemed for all purposes to have become a Holder of record of such shares, as of the date the aforementioned notice is received by the Company. If this Warrant shall have been exercised only in part, the Company shall, at the time of delivery of the certificate or certificates, deliver to the Holder a new Warrant evidencing the right to purchase the remaining shares of Common Stock called for by this Warrant which new Warrant shall in all other respects be identical with this Warrant, or, at the request of the Holder, appropriate notations may be made on this Warrant which shall then be returned to the Holder. The Company shall pay all expenses, taxes and other charges payable in connection with the preparation, issuance and delivery of share certificates and new Warrants, except that, if share certificates or new Warrants shall be registered in a name or names other than the name of the Holder, funds sufficient to pay all transfer taxes, if any, payable as a result of such transfer shall be paid by the Holder at the time of delivering the aforementioned notice of exercise or promptly upon receipt of a written request of the Company for payment. 1.02. Shares To Be Fully Paid and Nonassessable. All shares of Common Stock issued upon the exercise of this Warrant shall be validly issued, fully paid and nonassessable and, if the Common Stock is then eligible for listing on any national securities exchanges (as defined in the Exchange Act), or quoted on NASDAQ, shall be duly listed or quoted thereon, as the case may be. 1.03. No Fractional Shares To Be Issued. The Company shall not be required to issue fractions of shares of Common -2- Stock upon exercise of this Warrant. If any fractions of a share would, but for this Section, be issuable upon any exercise of this Warrant, in lieu of such fractional share the Company shall pay to the holder, in cash, an amount equal to the same fraction of the Market Price per share of Common Stock for the Trading Day immediately prior to the date of such exercise. 1.04. Share Legend. Each certificate for shares of Common Stock issued upon exercise of this Warrant, unless at the time of exercise such shares are registered under the Act, shall bear the following legend: THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND NEITHER SUCH SHARES OF THE COMMON STOCK NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND THE RULES AND REGULATIONS THEREUNDER. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF SUCH SHARES OF COMMON STOCK REPRESENTS THAT IT IS ACQUIRING THIS COMMON STOCK FOR INVESTMENT AND AGREES TO COMPLY IN ALL RESPECTS WITH ANY APPLICABLE STATE SECURITIES LAWS, AND THE WARRANT RELATING TO THIS COMMON STOCK ISSUED PURSUANT TO SUCH WARRANT, COVERING THE PURCHASE OF THIS COMMON STOCK AND RESTRICTING THEIR TRANSFER, COPIES OF WHICH MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THIS COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE AT 111 DUNNELL ROAD, MAPLEWOOD, NEW JERSEY 07040. Any certificate issued at any time in exchange or substitution for any certificate bearing such legend (except a new certificate issued upon completion of a public distribution pursuant to a registration statement under the Act) shall also bear such legend unless, in the opinion of counsel reasonably acceptable to the Company, the securities represented thereby need no longer be subject to restrictions on resale under the Act. ARTICLE II EXCHANGES, TRANSFERS AND REPLACEMENTS 2.01. Exchange and Registration or Transfer of Warrants. Provided, in the opinion of counsel reasonably acceptable to the Company, the following is permitted under the -3- Act, the holder of this Warrant may, at its option, surrender this Warrant at the principal executive office of the Company and receive in exchange therefor a Warrant or Warrants, each for 100 shares of Common Stock or an integral multiple thereof, for the same aggregate number of shares of Common Stock as the Warrant or Warrants so surrendered for exchange and registered to such person or persons as may be designated by such holder. This Warrant may be divided upon presentation hereof at the principal executive office of the Company, together with a written notice specifying the names and denominations in which the new Warrant or Warrants are to be issued, signed by the holder hereof and thereof or their respective duly authorized agents or attorneys. Subject to compliance with this Section 2.01 as to any transfer which may be involved in the division, the Company shall execute and deliver a new Warrant or Warrants to be divided in accordance with such notice. The Company shall keep, at said principal office, a register in which, subject to such reasonable regulations as it may prescribe, the Company shall register or cause to be registered Warrants and shall register or cause to be registered the transfer of the Warrants as provided in this Section 2.01. Such register shall be in written form. Upon due presentment for registration of transfer of any Warrants at such office, the Company shall execute and register or cause to be registered and deliver in the name of the transferee or transferees a new Warrant or Warrants for an equal aggregate number of Shares. The Company shall pay any tax or other governmental charge that may be imposed in connection with any exchange of Warrants not involving a transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with a transfer of Warrants. 2.02. Loss, Theft or Destruction of Warrant Certificates. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of any Warrant and, in the case of any such loss, theft or destruction, upon receipt of indemnity or security satisfactory to the Company (the original Warrantholder's or any other institutional Warrantholder's undertaking being satisfactory indemnity in the event of loss, theft, destruction or mutilation of any Warrant owned by such institutional holder), or, in the case of any such mutilation, upon surrender and cancellation of the Warrant, the Company will make and deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and representing the right to purchase the same aggregate number of shares of Common Stock. -4- 2.03. Change of Principal Executive Office. In the event the Company shall change the address of its principal executive office, the Company shall give the holder of this Warrant notice five (5) calendar days prior to such change. ARTICLE III ANTIDILUTION PROVISIONS 3.01 Adjustments Generally. The Exercise Price and the number of shares of Common Stock (or other securities or property) issuable upon exercise of this Warrant shall be subject to adjustment from time to time upon the occurrence of certain events, as provided in this Article III. 3.02 Common Stock Reorganization. If the Company shall subdivide its outstanding shares of Common Stock into a greater number of shares or consolidate its outstanding shares of Common Stock into a smaller number of shares (any such event being called a "Common Stock Reorganization"), then (a) the Exercise Price shall be adjusted, effective immediately after the record date at which the holders of shares of Common Stock are determined for purposes of such Common Stock Reorganization, to a price determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date before giving effect to such Common Stock Reorganization and the denominator of which shall be the number of shares of Common Stock outstanding after giving effect to such Common Stock Reorganization, and (b) the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be adjusted, effective at such time, to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Reorganization by a fraction, the numerator of which shall be the number of shares then outstanding after giving effect to such Common Stock Reorganization and the denominator of which shall be the number of shares of Common Stock outstanding immediately before such Common Stock Reorganization. 3.03 Special Dividends. If the Company shall issue or distribute to all or substantially all holders of shares of Common Stock evidences of indebtedness, any other securities of the Company, or any cash, property or other assets, and if such issuance or distribution does not constitute a cash dividend or distribution out of surplus or net profits legally available therefor, or a Common Stock Reorganization (any such nonexcluded event being herein called a "Special Dividend"), the Exercise Price shall be adjusted, effective immediately after the record date at which the holders of shares of Common Stock are determined for purposes of such Special Dividend, to a price determined by multiplying the Exercise Price then in effect by a -5- fraction, the numerator of which shall be the Market Price per share of Common Stock on such record date less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of the evidences of indebtedness, securities or property or other assets issued or distributed in such Special Dividend with respect to one share of Common Stock, and the denominator of which shall be the Market Price per share of Common Stock on such record date. 3.04 Capital Reorganizations. If there shall be any consolidation or merger to which the Company is a party, other than a consolidation or a merger in which the Company is a continuing corporation and which does not result in any reclassification of, or change (other than a Common Stock Reorganization or a change in par value) in, outstanding shares of Common Stock, or any sale or conveyance of the property of the Company as an entirety or substantially as an entirety (any such event being called a "Capital Reorganization"), then effective upon the effective date of such Capital Reorganization, the Holder shall have the right to purchase, upon exercise of this Warrant, the kind and amount of shares of stock and other securities and property (including in cash) which the Holder would have owned or have been entitled to receive after such Capital Reorganization if this Warrant had been exercised immediately prior to such Capital Reorganization. As a condition to effecting any Capital Reorganization, the Company or the successor or surviving corporation, as the case may be, shall execute and deliver to each Warrantholder an agreement as to the Warrantholders' rights in accordance with this Section 3.04, providing for subsequent adjustments as nearly equivalent as may be practicable to the adjustments provided for in this Article III. The provisions of this Section 3.04 shall similarly apply to successive Capital Reorganizations. 3.05. Certain Other Events. If any event occurs as to which the foregoing provisions of this Article III are not strictly applicable or, if strictly applicable, would not, in the good faith judgment of the Board of Directors of the Company, fairly protect the purchase rights of the Warrants in accordance with the essential intent and principles of such provisions, then such Board shall make such adjustments in the application of such provisions, in accordance with such essential intent and principles, as shall be reasonably necessary, in the good faith opinion of such Board, to protect such purchase rights as aforesaid, but in no event shall any such adjustment have the effect of increasing the Exercise Price or decreasing the number of shares of Common Stock subject to purchase upon exercise of this Warrant. 3.06. Adjustment Rules. (a) Any adjustments pursuant to this Article III shall be made successively whenever an event referred to therein shall occur. -6- (b) If the Company shall set a record date to determine the holders of shares of Common Stock for purposes of a Common Stock Reorganization or Capital Reorganization, and shall legally abandon such action prior to effecting such action, then no adjustment shall be made pursuant to this Article III in respect of such action. (c) All calculations under this Article III shall be made to the nearest cent or to the nearest one hundredth (1/100th) of a share, as the case may be. Notwithstanding any provision of this Article III to the contrary, no adjustment in the Exercise Price shall be made if the amount of such adjustment would be less than $0.05, but any such amount shall be carried forward and an adjustment with respect thereto shall be made at the time of and together with any subsequent adjustment which, together with such amount and any other amount or amounts so carried forward, shall aggregate $0.05 or more. (d) In any case in which the provisions of this Article III shall require that an adjustment shall become effective immediately after a record date for an event, the Company may defer until the occurrence of such event (i) issuing to the holder of any Warrant exercised after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the shares of Common Stock issuable upon such conversion before giving effect to such adjustment and (ii) paying to such holder any amount of cash in lieu of a fractional share of Common Stock pursuant to Section 1.03; provided that the Company upon request shall deliver to such holder a due bill or other appropriate instrument evidencing such holder's rights to receive such additional shares, and such cash, upon the occurrence of the event requiring such adjustment. 3.07 Proceedings Prior to Any Action Requiring Adjustment. As a condition precedent to the taking of any action which would require an adjustment pursuant to this Article III, the Company shall take any action which may be necessary in order that the Company may thereafter validly and legally issue as fully paid and nonassessable all shares of Common Stock which the holders of Warrants are entitled to receive upon exercise thereof. 3.08 Statement Regarding Adjustment. Whenever the Exercise Price or the number of shares received upon exercise of the Warrants shall be adjusted as provided in Article III, the Company shall forthwith file, at the office of any transfer agent for the Warrants and at the principal office of the Company, a statement showing in detail the facts requiring such adjustment and the Exercise Price and the number of shares received upon exercise of the Warrants that shall be in effect after such -7- adjustment, and the Company shall also cause a copy of such statement to be sent by mail, first class postage prepaid, to each holder of Warrants, at its address appearing on the Company's records. Each such statement shall be signed by the Company's independent public accountants. Where appropriate, such copy may be given in advance and may be included as part of a notice required to be mailed under the provisions of Section 3.08. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action. 3.09 Notice to Holders. In the event the Company shall propose to take any action of the type described in Article III (but only if the action of the type described in Article III would result in an adjustment in the Exercise Price or the number of shares received upon exercise of the Warrants), or to declare any cash dividends or distribution out of surplus or net profits legally available therefor, the Company shall give notice to each Warrantholder in the manner set forth in Section 3.09, which notice shall specify the record date, if any, with respect to any such action and the approximate date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Exercise Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon exercise of the Warrants. In the case of any action which would require the fixing of a record date, such notice shall be given at least 15 days prior to the date so fixed, and in case of all other action, such notice shall be given at least 20 days prior to the taking of such proposed action. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action. ARTICLE IV DEFINITIONS The following terms, as used in this Warrant, have the following respective meanings: "Act" means the Securities Act of 1933, as amended, and any similar or successor Federal statute, and the rules and regulations of the Securities and Exchange Commission (or its successor) thereunder, all as the same shall be in effect at the time. "Capital Reorganization" shall have the meaning set forth in Section 3.04 hereof. "Closing Price" on any day means (a) if the Common Stock is listed or admitted for trading on a national securities -8- exchange, the reported last sales price or, if no such reported sale occurs on such day, the average of the closing bid and asked prices on such day, in each case on the principal national securities exchange on which the Common Stock is listed or admitted to trading, (b) if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market on such day as reported by NASDAQ or any comparable system or, if not so reported, as reported by any New York Stock Exchange member firm selected by the Company for such purpose or (c) if no such quotations are available on such day, the fair market value of one share of Common Stock on such day as determined in good faith by the Board of Directors of the Company. "Common Stock" shall have the meaning set forth in the first paragraph of this Warrant, subject to adjustment pursuant to Article III. "Common Stock Reorganization" shall have the meaning set forth in Section 3.02 hereof. "Company" shall have the meaning set forth in the first paragraph of this Warrant. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and any similar or successor Federal statute, and the rules and regulations of the Securities and Exchange Commission (or its successor) thereunder, all as the same shall be in effect at the time. "Exercise Price" means $6.1875 per share of Common Stock, subject to adjustment pursuant to Article III hereof. "Holder" shall have the meaning set forth in the first paragraph of this Warrant and "Holders" shall include any and all successors and assigns of the initial Holder with respect to this Warrant. "Market Price" on any day means the average of the daily Closing Prices of a share of Common Stock for the 20 consecutive Trading Days ending on the most recent Trading Day for which a closing price is available and if the Common Stock is not then publicly traded Market Price shall be determined in good faith by the Board of Directors of the Company. "NASD" means The National Association of Securities Dealers, Inc. "NASDAQ" means The National Association of Securities Dealers, Inc. Automated Quotation System. -9- "Registrable Securities" means 100% of the number of shares of the Company's Common Stock issuable upon exercise of this Warrant. "Securities Act" means the Securities Act of 1933. "Trading Day" means (a) if the Common Stock is listed or admitted to trading on a national securities exchange, a day on which the principal national securities exchange on which the Common Stock is listed or admitted to trading is open for business or (b) if the Common Stock is not so listed or admitted to trading, a day on which any New York Stock Exchange member firm is open for business. "Warrantholder" means a holder of a Warrant. "Warrant" and "Warrants" shall mean this warrant and any warrants into which this warrant may be divided in accordance with Section 2.01. "Warrant Common Stock" means the Common Stock issued upon the exercise of the Warrant. ARTICLE V REDEMPTION AND CANCELLATION OF WARRANTS 5.01 Redemption of Warrants. The Warrants are not redeemable by the Company and the Company has no rights to purchase or otherwise acquire the Warrants. 5.02 Cancellation of Warrants. The Company shall cancel any Warrant surrendered for transfer, exchange or exercise. ARTICLE VI REGISTRATION RIGHTS 6.01 Registration Rights. If the Company shall at any time register shares of its Common Stock issuable upon conversion of shares of the Company's Series A 7.50% Cumulative Convertible Preferred Stock (the "Preferred Stock") pursuant to demand by a holder or holders of the Preferred Stock in accordance with the terms of that certain Registration Rights Agreement dated as of March 21, 1995 by and between the holders of the Preferred Stock and the Company, the Company shall: (a) promptly (but not less than five (5) days prior to the filing of any registration statement) give written notice thereof (which shall include a list of the jurisdictions, if any, in which the Company intends to register or qualify such -10- securities under the applicable blue sky or other state securities laws) to each Holder and each holder of Warrant Common Stock; (b) use its best efforts to effect such registration and any qualification and compliance relating thereto, including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with the Securities Act and any other governmental requirements or regulations as would permit or facilitate the sale and distribution of all Warrant Common Stock. 6.02 Expenses. The Company shall bear all of its expenses in connection with such registration, qualification and compliance under this Section 6, including, without limitation, all registration and filing fees, printing expenses and fees and disbursements of the Company's counsel and expenses of any audits incident to or required by any such registration, qualification and compliance, provided, that the Company shall not, in any event, be required to bear the cost of any commissions and compensation paid, and concessions and discounts allowed to, underwriters, dealers or others performing similar functions in connection with the sale and distribution of the Warrant or Warrant Common Stock sold by any holders thereof. 6.03 Indemnification. (a) If Registrable Securities are included in a Registration Statement, the Company will indemnify each Holder and each holder of Warrant Common Stock against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on (A) any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like) incident to any such registration, qualification or compliance, or (B) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (C) any violation by the Company of any rule or regulation promulgated under the Act applicable to the Company and relating to action or inaction required of the Company in connection with any registration, qualification or compliance, and will reimburse each Holder and each holder of Warrant Common Stock for any legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage or liability arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by a Holder or a holder of Warrant Common Stock specifically for use therein. -11- (b) Each party entitled to indemnification under this Section 6.03 (sometimes referred to as the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that unless such failure materially and adversely affects the rights or abilities of the Indemnifying Party to defend such action, the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 6.03. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. If any such Indemnified Party shall have reasonably concluded that there may be one or more legal defenses available to such Indemnified Party which is different from or additional to those available to the Indemnifying Party, or that such claim or litigation involves or could have an effect upon matters beyond the scope of the indemnity agreement provided in this Section 6.03, the Indemnifying Party shall not have the right to assume the defense of such action on behalf of such Indemnified Party and such Indemnifying Party shall reimburse such Indemnified Party for that portion of the fees and expenses of any counsel retained by the Indemnified Party which is reasonably related to the matters covered by the indemnity agreement provided in this Section 6.04. (c) If the indemnification provided for in this Section 6.03 shall for any reason be unenforceable by an indemnified party, although otherwise available in accordance with its terms, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages, liabilities or expenses with respect to which such indemnified party has claimed indemnification, in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the indemnifying party on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The Company and each Holder agree that it would not be just and equitable if contribution pursuant hereto were to be determined by pro rata allocation or by any other method of allocation which -12- does not take into account such equitable considerations. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to herein shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action or claim which is the subject hereof. No person guilty of fraudulent misrepresentation shall be entitled to contribution from any person who is not guilty of such fraudulent misrepresentation. 6.04 Information by the Investor. Each Holder and each holder of Warrant Common Stock shall furnish in writing to the Company such information regarding such person and the distribution proposed by such person as the Company may request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Article VI. 6.05 Notification; Continuation of Effectiveness. In the case of a registration, qualification and compliance pursuant to this Section 6, the Company will keep all Holders and all holders of Warrant Common Stock promptly advised in writing as to the initiation of proceedings for such registration, qualification and compliance and as to the completion thereof, and will advise, upon request, of the progress of such proceedings. The Company will, at its expense, keep such registration, qualification and compliance effective, unless otherwise noted herein, for a period of twelve months, or for such longer period as may be required by the Act, by such action as may be necessary or appropriate to permit the exercise or sale and distribution during such period of any Warrant not theretofore exercised or sold and distributed and the sale or distribution of Warrant Common Stock not theretofore sold or distributed including, without limitation, the filing of post-effective amendments and supplements to any registration statement or prospectus necessary to keep the registration current and further qualification under any applicable blue sky or other state securities law, all as requested by any Holder or holder of Warrant Common Stock with respect to which such registration is being effected. 6.06 Transfer of Registration Rights. The rights to cause the Company to register securities granted by the Company under this Article VI may be assigned by the Holder to a transferee or assignee of all or less than all the Registrable Securities, provided that such transfer may otherwise be effected in accordance with applicable securities laws and that the Company is given written notice, as provided in Article VI. 6.07 Prospectuses, etc. The Company will, at its expense, furnish to each Holder or holder of Warrant Common Stock with respect to which registration has been effected, such number -13- of prospectuses, offering circulars and other documents incident to such registration and related qualification or compliance as such holder from time to time may reasonably request. 6.08 Listing on Securities Exchanges, etc. The Company will, at its expense, promptly list on each national securities exchange, or NASDAQ, on which Common Stock is at the time listed, upon official notice of issuance upon the exercise of the Warrant, and maintain such listing of, all shares of Common Stock from time to time issuable upon the exercise of the Warrant, and when and if required by the Securities Exchange Act of 1934 (or any similar statute then in effect) will register thereunder all shares of Common Stock from time to time so issuable. 6.09 Underwritten Offerings. In the event any registration under this Article VI is underwritten and the managing underwriter determines that the inclusion of all Registrable Securities that are to be included would materially interfere with the successful completion thereof in the reasonable judgment of such managing underwriter, then the number of Registrable Securities to be included may be reduced on the same basis as other selling stockholders in such registration. ARTICLE VII MISCELLANEOUS 7.01 Notices. All notices, requests and other communications provided for herein shall be in writing, and shall be deemed to have been made or given when delivered or mailed, first class, postage prepaid, or sent by telex or other telegraphic communications equipment. Such notices and communications shall be addressed: (a) if to the Company, to 111 Dunnell Road Maplewood, New Jersey 07040 Attention of Mr. Carl T. Wolf; or (b) if to the Holder, to its address as shown on the registry books maintained pursuant to Section 2.01; or in any of the foregoing cases at such other address as such Person may hereafter specify for such purpose by notice to the other Persons referred to above. 7.02 Waivers; Amendments. No failure or delay of the Holder in exercising any right, power or privilege, hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, or any abandonment or discontinuance of -14- steps to enforce such a right, power or privilege, preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of the Holder are cumulative and not exclusive of any rights or remedies which it would otherwise have. The provisions of this Warrant may be amended, modified or waived if, but only if, such amendment, modification or waiver is in writing and is signed by a majority of the Holders; provided that no amendment, modification or waiver may change the exercise price of (including without limitation any adjustments or any provisions with respect to adjustments, the expiration of or the manner of exercising the Warrants) without the consent in writing of all of the Holders. 7.03 Governing Law. This Warrant shall be construed in accordance with and governed by the laws of the State of New York. 7.04 Survival of Agreements; Representations and Warranties, etc. All warranties, representations and covenants made by the Company herein or in any certificate or other instrument delivered by or on behalf of it in connection herewith or the Notes shall be considered to have been relied upon by the Holders and shall survive the issuance and delivery of the Warrants and the shares of Common Stock issuable upon exercise of this Warrant, and shall continue in full force and effect so long as this Warrant is outstanding. All statements in any such certificate or other instrument shall constitute representations and warranties hereunder. 7.05 Covenants To Bind Successor and Assigns. All the covenants, stipulations, promises and agreements in this Warrant contained by or on behalf of the Company shall bind its successors and assigns, whether or not so expressed. 7.06 Severability. In case any one or more of the provisions contained in this Warrant shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired in such jurisdiction and shall not invalidate or render illegal or unenforceable such provision in any other jurisdiction. 7.07 Headings. The headings used herein are for convenience of reference only and shall not be deemed to be a part of this Warrant. 7.08 No Rights as Stockholder. This Warrant shall not entitle the Holder to any rights as a stockholder of the Company. 7.09 Pronouns. The pronouns "it" and "its" herein shall be deemed to mean "he" or "his", as the context requires. -15- IN WITNESS WHEREOF, Alpine Lace Brands, Inc. has caused this Warrant to be executed in its corporate name by one of its officers thereunto duly authorized, and its corporate seal to be hereunto affixed, attested by its Secretary or an Assistant Secretary, all as of the day and year first above written. ALPINE LACE BRANDS, INC. By: /s/ Carl T. Wolf --------------------------- Carl T. Wolf, President and Chief Executive Officer Attest: /s/ Kenneth E. Meyers - -------------------------- Secretary -16- EX-4.(B) 3 CRAIG GILMORE WARRANT THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND NEITHER THIS WARRANT NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND THE RULES AND REGULATIONS THEREUNDER. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS WARRANT REPRESENTS THAT IT IS ACQUIRING THIS WARRANT FOR INVESTMENT AND AGREES TO COMPLY IN ALL RESPECTS WITH ANY APPLICABLE STATE SECURITIES LAWS COVERING THE PURCHASE OF THIS WARRANT AND RESTRICTING ITS TRANSFER, COPIES OF WHICH MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS WARRANT TO THE SECRETARY OF THIS COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE AT 111 DUNNELL ROAD, MAPLEWOOD, NEW JERSEY 07040. Dated: As of March 23, 1995 WARRANT To purchase up to 10,000 Shares of Common Stock ALPINE LACE BRANDS, INC. Expiring March 21, 2000 THIS IS TO CERTIFY THAT, for value received, CRAIG D. GILMORE, or registered assigns (the "Holder"), is entitled, subject to certain conditions set forth in Section 1.01 hereof, to purchase from ALPINE LACE BRANDS, INC., a Delaware corporation (the "Company"), at any time or from time to time after 9:00 a.m., New York City time, on the date hereof and prior to 5:00 p.m. New York City time, on March 21, 2000, at the Company's principal executive office, at the Exercise Price, up to the number of shares of Common Stock, $.01 par value per share (the "Common Stock"), of the Company shown above, all subject to adjustment and upon the terms and conditions as hereinafter provided, and is entitled also to exercise the other appurtenant rights, powers and privileges hereinafter described. Certain terms used in this Warrant are defined in Article IV hereof. ARTICLE I METHOD OF EXERCISE 1.01. Method of Exercise. To exercise this Warrant in whole or in part, the Holder shall deliver to the Company, at the Company's principal executive office (a) this Warrant, (b) a written notice of such Holder's election to exercise this Warrant, which notice shall specify the number of shares of Common Stock to be purchased, but in no event less than 1,000 shares, the denominations of the share certificate or certificates desired and the name or names in which such certificates are to be registered, and (c) payment of the Exercise Price with respect to such shares. Such payment may be made, at the option of the Holder, in cash, by certified or bank cashier's check, money order or wire transfer, or in any other manner consented to in writing by the Company, or any combination thereof. The Company shall, as promptly as practicable after receipt of the items required by the previous paragraph, execute and deliver or cause to be executed and delivered, in accordance with such notice, a certificate or certificates representing the aggregate number of shares of Common Stock specified in said notice. The share certificate or certificates so delivered shall be in such denominations as may be specified in such notice or, if such notice shall not specify denominations, in denominations of 100 shares each, and shall be issued in the name of the Holder or such other name as shall be designated in such notice. Such certificate or certificates shall be deemed to have been issued, and such Holder or Holders or any other person so designated to be named therein shall be deemed for all purposes to have become a Holder of record of such shares, as of the date the aforementioned notice is received by the Company. If this Warrant shall have been exercised only in part, the Company shall, at the time of delivery of the certificate or certificates, deliver to the Holder a new Warrant evidencing the right to purchase the remaining shares of Common Stock called for by this Warrant which new Warrant shall in all other respects be identical with this Warrant, or, at the request of the Holder, appropriate notations may be made on this Warrant which shall then be returned to the Holder. The Company shall pay all expenses, taxes and other charges payable in connection with the preparation, issuance and delivery of share certificates and new Warrants, except that, if share certificates or new Warrants shall be registered in a name or names other than the name of the Holder, funds sufficient to pay all transfer taxes, if any, payable as a result of such transfer shall be paid by the Holder at the time of delivering the aforementioned notice of exercise or promptly upon receipt of a written request of the Company for payment. 1.02. Shares To Be Fully Paid and Nonassessable. All shares of Common Stock issued upon the exercise of this Warrant shall be validly issued, fully paid and nonassessable and, if the Common Stock is then eligible for listing on any national securities exchanges (as defined in the Exchange Act), or quoted on NASDAQ, shall be duly listed or quoted thereon, as the case may be. 1.03. No Fractional Shares To Be Issued. The Company shall not be required to issue fractions of shares of Common -2- Stock upon exercise of this Warrant. If any fractions of a share would, but for this Section, be issuable upon any exercise of this Warrant, in lieu of such fractional share the Company shall pay to the holder, in cash, an amount equal to the same fraction of the Market Price per share of Common Stock for the Trading Day immediately prior to the date of such exercise. 1.04. Share Legend. Each certificate for shares of Common Stock issued upon exercise of this Warrant, unless at the time of exercise such shares are registered under the Act, shall bear the following legend: THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND NEITHER SUCH SHARES OF THE COMMON STOCK NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND THE RULES AND REGULATIONS THEREUNDER. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF SUCH SHARES OF COMMON STOCK REPRESENTS THAT IT IS ACQUIRING THIS COMMON STOCK FOR INVESTMENT AND AGREES TO COMPLY IN ALL RESPECTS WITH ANY APPLICABLE STATE SECURITIES LAWS, AND THE WARRANT RELATING TO THIS COMMON STOCK ISSUED PURSUANT TO SUCH WARRANT, COVERING THE PURCHASE OF THIS COMMON STOCK AND RESTRICTING THEIR TRANSFER, COPIES OF WHICH MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THIS COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE AT 111 DUNNELL ROAD, MAPLEWOOD, NEW JERSEY 07040. Any certificate issued at any time in exchange or substitution for any certificate bearing such legend (except a new certificate issued upon completion of a public distribution pursuant to a registration statement under the Act) shall also bear such legend unless, in the opinion of counsel reasonably acceptable to the Company, the securities represented thereby need no longer be subject to restrictions on resale under the Act. ARTICLE II EXCHANGES, TRANSFERS AND REPLACEMENTS 2.01. Exchange and Registration or Transfer of Warrants. Provided, in the opinion of counsel reasonably acceptable to the Company, the following is permitted under the -3- Act, the holder of this Warrant may, at its option, surrender this Warrant at the principal executive office of the Company and receive in exchange therefor a Warrant or Warrants, each for 100 shares of Common Stock or an integral multiple thereof, for the same aggregate number of shares of Common Stock as the Warrant or Warrants so surrendered for exchange and registered to such person or persons as may be designated by such holder. This Warrant may be divided upon presentation hereof at the principal executive office of the Company, together with a written notice specifying the names and denominations in which the new Warrant or Warrants are to be issued, signed by the holder hereof and thereof or their respective duly authorized agents or attorneys. Subject to compliance with this Section 2.01 as to any transfer which may be involved in the division, the Company shall execute and deliver a new Warrant or Warrants to be divided in accordance with such notice. The Company shall keep, at said principal office, a register in which, subject to such reasonable regulations as it may prescribe, the Company shall register or cause to be registered Warrants and shall register or cause to be registered the transfer of the Warrants as provided in this Section 2.01. Such register shall be in written form. Upon due presentment for registration of transfer of any Warrants at such office, the Company shall execute and register or cause to be registered and deliver in the name of the transferee or transferees a new Warrant or Warrants for an equal aggregate number of Shares. The Company shall pay any tax or other governmental charge that may be imposed in connection with any exchange of Warrants not involving a transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with a transfer of Warrants. 2.02. Loss, Theft or Destruction of Warrant Certificates. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of any Warrant and, in the case of any such loss, theft or destruction, upon receipt of indemnity or security satisfactory to the Company (the original Warrantholder's or any other institutional Warrantholder's undertaking being satisfactory indemnity in the event of loss, theft, destruction or mutilation of any Warrant owned by such institutional holder), or, in the case of any such mutilation, upon surrender and cancellation of the Warrant, the Company will make and deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and representing the right to purchase the same aggregate number of shares of Common Stock. -4- 2.03. Change of Principal Executive Office. In the event the Company shall change the address of its principal executive office, the Company shall give the holder of this Warrant notice five (5) calendar days prior to such change. ARTICLE III ANTIDILUTION PROVISIONS 3.01 Adjustments Generally. The Exercise Price and the number of shares of Common Stock (or other securities or property) issuable upon exercise of this Warrant shall be subject to adjustment from time to time upon the occurrence of certain events, as provided in this Article III. 3.02 Common Stock Reorganization. If the Company shall subdivide its outstanding shares of Common Stock into a greater number of shares or consolidate its outstanding shares of Common Stock into a smaller number of shares (any such event being called a "Common Stock Reorganization"), then (a) the Exercise Price shall be adjusted, effective immediately after the record date at which the holders of shares of Common Stock are determined for purposes of such Common Stock Reorganization, to a price determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date before giving effect to such Common Stock Reorganization and the denominator of which shall be the number of shares of Common Stock outstanding after giving effect to such Common Stock Reorganization, and (b) the number of shares of Common Stock subject to purchase upon exercise of this Warrant shall be adjusted, effective at such time, to a number determined by multiplying the number of shares of Common Stock subject to purchase immediately before such Common Stock Reorganization by a fraction, the numerator of which shall be the number of shares then outstanding after giving effect to such Common Stock Reorganization and the denominator of which shall be the number of shares of Common Stock outstanding immediately before such Common Stock Reorganization. 3.03 Special Dividends. If the Company shall issue or distribute to all or substantially all holders of shares of Common Stock evidences of indebtedness, any other securities of the Company, or any cash, property or other assets, and if such issuance or distribution does not constitute a cash dividend or distribution out of surplus or net profits legally available therefor, or a Common Stock Reorganization (any such nonexcluded event being herein called a "Special Dividend"), the Exercise Price shall be adjusted, effective immediately after the record date at which the holders of shares of Common Stock are determined for purposes of such Special Dividend, to a price determined by multiplying the Exercise Price then in effect by a -5- fraction, the numerator of which shall be the Market Price per share of Common Stock on such record date less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of the evidences of indebtedness, securities or property or other assets issued or distributed in such Special Dividend with respect to one share of Common Stock, and the denominator of which shall be the Market Price per share of Common Stock on such record date. 3.04 Capital Reorganizations. If there shall be any consolidation or merger to which the Company is a party, other than a consolidation or a merger in which the Company is a continuing corporation and which does not result in any reclassification of, or change (other than a Common Stock Reorganization or a change in par value) in, outstanding shares of Common Stock, or any sale or conveyance of the property of the Company as an entirety or substantially as an entirety (any such event being called a "Capital Reorganization"), then effective upon the effective date of such Capital Reorganization, the Holder shall have the right to purchase, upon exercise of this Warrant, the kind and amount of shares of stock and other securities and property (including in cash) which the Holder would have owned or have been entitled to receive after such Capital Reorganization if this Warrant had been exercised immediately prior to such Capital Reorganization. As a condition to effecting any Capital Reorganization, the Company or the successor or surviving corporation, as the case may be, shall execute and deliver to each Warrantholder an agreement as to the Warrantholders' rights in accordance with this Section 3.04, providing for subsequent adjustments as nearly equivalent as may be practicable to the adjustments provided for in this Article III. The provisions of this Section 3.04 shall similarly apply to successive Capital Reorganizations. 3.05. Certain Other Events. If any event occurs as to which the foregoing provisions of this Article III are not strictly applicable or, if strictly applicable, would not, in the good faith judgment of the Board of Directors of the Company, fairly protect the purchase rights of the Warrants in accordance with the essential intent and principles of such provisions, then such Board shall make such adjustments in the application of such provisions, in accordance with such essential intent and principles, as shall be reasonably necessary, in the good faith opinion of such Board, to protect such purchase rights as aforesaid, but in no event shall any such adjustment have the effect of increasing the Exercise Price or decreasing the number of shares of Common Stock subject to purchase upon exercise of this Warrant. 3.06. Adjustment Rules. (a) Any adjustments pursuant to this Article III shall be made successively whenever an event referred to therein shall occur. -6- (b) If the Company shall set a record date to determine the holders of shares of Common Stock for purposes of a Common Stock Reorganization or Capital Reorganization, and shall legally abandon such action prior to effecting such action, then no adjustment shall be made pursuant to this Article III in respect of such action. (c) All calculations under this Article III shall be made to the nearest cent or to the nearest one hundredth (1/100th) of a share, as the case may be. Notwithstanding any provision of this Article III to the contrary, no adjustment in the Exercise Price shall be made if the amount of such adjustment would be less than $0.05, but any such amount shall be carried forward and an adjustment with respect thereto shall be made at the time of and together with any subsequent adjustment which, together with such amount and any other amount or amounts so carried forward, shall aggregate $0.05 or more. (d) In any case in which the provisions of this Article III shall require that an adjustment shall become effective immediately after a record date for an event, the Company may defer until the occurrence of such event (i) issuing to the holder of any Warrant exercised after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the shares of Common Stock issuable upon such conversion before giving effect to such adjustment and (ii) paying to such holder any amount of cash in lieu of a fractional share of Common Stock pursuant to Section 1.03; provided that the Company upon request shall deliver to such holder a due bill or other appropriate instrument evidencing such holder's rights to receive such additional shares, and such cash, upon the occurrence of the event requiring such adjustment. 3.07 Proceedings Prior to Any Action Requiring Adjustment. As a condition precedent to the taking of any action which would require an adjustment pursuant to this Article III, the Company shall take any action which may be necessary in order that the Company may thereafter validly and legally issue as fully paid and nonassessable all shares of Common Stock which the holders of Warrants are entitled to receive upon exercise thereof. 3.08 Statement Regarding Adjustment. Whenever the Exercise Price or the number of shares received upon exercise of the Warrants shall be adjusted as provided in Article III, the Company shall forthwith file, at the office of any transfer agent for the Warrants and at the principal office of the Company, a statement showing in detail the facts requiring such adjustment and the Exercise Price and the number of shares received upon exercise of the Warrants that shall be in effect after such -7- adjustment, and the Company shall also cause a copy of such statement to be sent by mail, first class postage prepaid, to each holder of Warrants, at its address appearing on the Company's records. Each such statement shall be signed by the Company's independent public accountants. Where appropriate, such copy may be given in advance and may be included as part of a notice required to be mailed under the provisions of Section 3.08. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action. 3.09 Notice to Holders. In the event the Company shall propose to take any action of the type described in Article III (but only if the action of the type described in Article III would result in an adjustment in the Exercise Price or the number of shares received upon exercise of the Warrants), or to declare any cash dividends or distribution out of surplus or net profits legally available therefor, the Company shall give notice to each Warrantholder in the manner set forth in Section 3.09, which notice shall specify the record date, if any, with respect to any such action and the approximate date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Exercise Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon exercise of the Warrants. In the case of any action which would require the fixing of a record date, such notice shall be given at least 15 days prior to the date so fixed, and in case of all other action, such notice shall be given at least 20 days prior to the taking of such proposed action. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action. ARTICLE IV DEFINITIONS The following terms, as used in this Warrant, have the following respective meanings: "Act" means the Securities Act of 1933, as amended, and any similar or successor Federal statute, and the rules and regulations of the Securities and Exchange Commission (or its successor) thereunder, all as the same shall be in effect at the time. "Capital Reorganization" shall have the meaning set forth in Section 3.04 hereof. "Closing Price" on any day means (a) if the Common Stock is listed or admitted for trading on a national securities -8- exchange, the reported last sales price or, if no such reported sale occurs on such day, the average of the closing bid and asked prices on such day, in each case on the principal national securities exchange on which the Common Stock is listed or admitted to trading, (b) if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market on such day as reported by NASDAQ or any comparable system or, if not so reported, as reported by any New York Stock Exchange member firm selected by the Company for such purpose or (c) if no such quotations are available on such day, the fair market value of one share of Common Stock on such day as determined in good faith by the Board of Directors of the Company. "Common Stock" shall have the meaning set forth in the first paragraph of this Warrant, subject to adjustment pursuant to Article III. "Common Stock Reorganization" shall have the meaning set forth in Section 3.02 hereof. "Company" shall have the meaning set forth in the first paragraph of this Warrant. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and any similar or successor Federal statute, and the rules and regulations of the Securities and Exchange Commission (or its successor) thereunder, all as the same shall be in effect at the time. "Exercise Price" means $6.1875 per share of Common Stock, subject to adjustment pursuant to Article III hereof. "Holder" shall have the meaning set forth in the first paragraph of this Warrant and "Holders" shall include any and all successors and assigns of the initial Holder with respect to this Warrant. "Market Price" on any day means the average of the daily Closing Prices of a share of Common Stock for the 20 consecutive Trading Days ending on the most recent Trading Day for which a closing price is available and if the Common Stock is not then publicly traded Market Price shall be determined in good faith by the Board of Directors of the Company. "NASD" means The National Association of Securities Dealers, Inc. "NASDAQ" means The National Association of Securities Dealers, Inc. Automated Quotation System. -9- "Registrable Securities" means 100% of the number of shares of the Company's Common Stock issuable upon exercise of this Warrant. "Securities Act" means the Securities Act of 1933. "Trading Day" means (a) if the Common Stock is listed or admitted to trading on a national securities exchange, a day on which the principal national securities exchange on which the Common Stock is listed or admitted to trading is open for business or (b) if the Common Stock is not so listed or admitted to trading, a day on which any New York Stock Exchange member firm is open for business. "Warrantholder" means a holder of a Warrant. "Warrant" and "Warrants" shall mean this warrant and any warrants into which this warrant may be divided in accordance with Section 2.01. "Warrant Common Stock" means the Common Stock issued upon the exercise of the Warrant. ARTICLE V REDEMPTION AND CANCELLATION OF WARRANTS 5.01 Redemption of Warrants. The Warrants are not redeemable by the Company and the Company has no rights to purchase or otherwise acquire the Warrants. 5.02 Cancellation of Warrants. The Company shall cancel any Warrant surrendered for transfer, exchange or exercise. ARTICLE VI REGISTRATION RIGHTS 6.01 Registration Rights. If the Company shall at any time register shares of its Common Stock issuable upon conversion of shares of the Company's Series A 7.50% Cumulative Convertible Preferred Stock (the "Preferred Stock") pursuant to demand by a holder or holders of the Preferred Stock in accordance with the terms of that certain Registration Rights Agreement dated as of March 21, 1995 by and between the holders of the Preferred Stock and the Company, the Company shall: (a) promptly (but not less than five (5) days prior to the filing of any registration statement) give written notice thereof (which shall include a list of the jurisdictions, if any, in which the Company intends to register or qualify such -10- securities under the applicable blue sky or other state securities laws) to each Holder and each holder of Warrant Common Stock; (b) use its best efforts to effect such registration and any qualification and compliance relating thereto, including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with the Securities Act and any other governmental requirements or regulations as would permit or facilitate the sale and distribution of all Warrant Common Stock. 6.02 Expenses. The Company shall bear all of its expenses in connection with such registration, qualification and compliance under this Section 6, including, without limitation, all registration and filing fees, printing expenses and fees and disbursements of the Company's counsel and expenses of any audits incident to or required by any such registration, qualification and compliance, provided, that the Company shall not, in any event, be required to bear the cost of any commissions and compensation paid, and concessions and discounts allowed to, underwriters, dealers or others performing similar functions in connection with the sale and distribution of the Warrant or Warrant Common Stock sold by any holders thereof. 6.03 Indemnification. (a) If Registrable Securities are included in a Registration Statement, the Company will indemnify each Holder and each holder of Warrant Common Stock against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on (A) any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like) incident to any such registration, qualification or compliance, or (B) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (C) any violation by the Company of any rule or regulation promulgated under the Act applicable to the Company and relating to action or inaction required of the Company in connection with any registration, qualification or compliance, and will reimburse each Holder and each holder of Warrant Common Stock for any legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage or liability arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by a Holder or a holder of Warrant Common Stock specifically for use therein. -11- (b) Each party entitled to indemnification under this Section 6.03 (sometimes referred to as the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that unless such failure materially and adversely affects the rights or abilities of the Indemnifying Party to defend such action, the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 6.03. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. If any such Indemnified Party shall have reasonably concluded that there may be one or more legal defenses available to such Indemnified Party which is different from or additional to those available to the Indemnifying Party, or that such claim or litigation involves or could have an effect upon matters beyond the scope of the indemnity agreement provided in this Section 6.03, the Indemnifying Party shall not have the right to assume the defense of such action on behalf of such Indemnified Party and such Indemnifying Party shall reimburse such Indemnified Party for that portion of the fees and expenses of any counsel retained by the Indemnified Party which is reasonably related to the matters covered by the indemnity agreement provided in this Section 6.04. (c) If the indemnification provided for in this Section 6.03 shall for any reason be unenforceable by an indemnified party, although otherwise available in accordance with its terms, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages, liabilities or expenses with respect to which such indemnified party has claimed indemnification, in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the indemnifying party on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The Company and each Holder agree that it would not be just and equitable if contribution pursuant hereto were to be determined by pro rata allocation or by any other method of allocation which -12- does not take into account such equitable considerations. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to herein shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action or claim which is the subject hereof. No person guilty of fraudulent misrepresentation shall be entitled to contribution from any person who is not guilty of such fraudulent misrepresentation. 6.04 Information by the Investor. Each Holder and each holder of Warrant Common Stock shall furnish in writing to the Company such information regarding such person and the distribution proposed by such person as the Company may request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Article VI. 6.05 Notification; Continuation of Effectiveness. In the case of a registration, qualification and compliance pursuant to this Section 6, the Company will keep all Holders and all holders of Warrant Common Stock promptly advised in writing as to the initiation of proceedings for such registration, qualification and compliance and as to the completion thereof, and will advise, upon request, of the progress of such proceedings. The Company will, at its expense, keep such registration, qualification and compliance effective, unless otherwise noted herein, for a period of twelve months, or for such longer period as may be required by the Act, by such action as may be necessary or appropriate to permit the exercise or sale and distribution during such period of any Warrant not theretofore exercised or sold and distributed and the sale or distribution of Warrant Common Stock not theretofore sold or distributed including, without limitation, the filing of post-effective amendments and supplements to any registration statement or prospectus necessary to keep the registration current and further qualification under any applicable blue sky or other state securities law, all as requested by any Holder or holder of Warrant Common Stock with respect to which such registration is being effected. 6.06 Transfer of Registration Rights. The rights to cause the Company to register securities granted by the Company under this Article VI may be assigned by the Holder to a transferee or assignee of all or less than all the Registrable Securities, provided that such transfer may otherwise be effected in accordance with applicable securities laws and that the Company is given written notice, as provided in Article VI. 6.07 Prospectuses, etc. The Company will, at its expense, furnish to each Holder or holder of Warrant Common Stock with respect to which registration has been effected, such number -13- of prospectuses, offering circulars and other documents incident to such registration and related qualification or compliance as such holder from time to time may reasonably request. 6.08 Listing on Securities Exchanges, etc. The Company will, at its expense, promptly list on each national securities exchange, or NASDAQ, on which Common Stock is at the time listed, upon official notice of issuance upon the exercise of the Warrant, and maintain such listing of, all shares of Common Stock from time to time issuable upon the exercise of the Warrant, and when and if required by the Securities Exchange Act of 1934 (or any similar statute then in effect) will register thereunder all shares of Common Stock from time to time so issuable. 6.09 Underwritten Offerings. In the event any registration under this Article VI is underwritten and the managing underwriter determines that the inclusion of all Registrable Securities that are to be included would materially interfere with the successful completion thereof in the reasonable judgment of such managing underwriter, then the number of Registrable Securities to be included may be reduced on the same basis as other selling stockholders in such registration. ARTICLE VII MISCELLANEOUS 7.01 Notices. All notices, requests and other communications provided for herein shall be in writing, and shall be deemed to have been made or given when delivered or mailed, first class, postage prepaid, or sent by telex or other telegraphic communications equipment. Such notices and communications shall be addressed: (a) if to the Company, to 111 Dunnell Road Maplewood, New Jersey 07040 Attention of Mr. Carl T. Wolf; or (b) if to the Holder, to its address as shown on the registry books maintained pursuant to Section 2.01; or in any of the foregoing cases at such other address as such Person may hereafter specify for such purpose by notice to the other Persons referred to above. 7.02 Waivers; Amendments. No failure or delay of the Holder in exercising any right, power or privilege, hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, or any abandonment or discontinuance of -14- steps to enforce such a right, power or privilege, preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of the Holder are cumulative and not exclusive of any rights or remedies which it would otherwise have. The provisions of this Warrant may be amended, modified or waived if, but only if, such amendment, modification or waiver is in writing and is signed by a majority of the Holders; provided that no amendment, modification or waiver may change the exercise price of (including without limitation any adjustments or any provisions with respect to adjustments, the expiration of or the manner of exercising the Warrants) without the consent in writing of all of the Holders. 7.03 Governing Law. This Warrant shall be construed in accordance with and governed by the laws of the State of New York. 7.04 Survival of Agreements; Representations and Warranties, etc. All warranties, representations and covenants made by the Company herein or in any certificate or other instrument delivered by or on behalf of it in connection herewith or the Notes shall be considered to have been relied upon by the Holders and shall survive the issuance and delivery of the Warrants and the shares of Common Stock issuable upon exercise of this Warrant, and shall continue in full force and effect so long as this Warrant is outstanding. All statements in any such certificate or other instrument shall constitute representations and warranties hereunder. 7.05 Covenants To Bind Successor and Assigns. All the covenants, stipulations, promises and agreements in this Warrant contained by or on behalf of the Company shall bind its successors and assigns, whether or not so expressed. 7.06 Severability. In case any one or more of the provisions contained in this Warrant shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired in such jurisdiction and shall not invalidate or render illegal or unenforceable such provision in any other jurisdiction. 7.07 Headings. The headings used herein are for convenience of reference only and shall not be deemed to be a part of this Warrant. 7.08 No Rights as Stockholder. This Warrant shall not entitle the Holder to any rights as a stockholder of the Company. 7.09 Pronouns. The pronouns "it" and "its" herein shall be deemed to mean "he" or "his", as the context requires. -15- IN WITNESS WHEREOF, Alpine Lace Brands, Inc. has caused this Warrant to be executed in its corporate name by one of its officers thereunto duly authorized, and its corporate seal to be hereunto affixed, attested by its Secretary or an Assistant Secretary, all as of the day and year first above written. ALPINE LACE BRANDS, INC. By: /s/ Carl T. Wolf --------------------------- Carl T. Wolf, President and Chief Executive Officer Attest: /s/ Kenneth E. Meyers - -------------------------- Secretary -16- EX-5 4 OPINION OF OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP August 2, 1995 Securities and Exchange Commission 450 Fifth Street, N.W. Judiciary Plaza Washington, D.C. 20549 Re: ALPINE LACE BRANDS, INC. - REGISTRATION STATEMENT ON FORM S-3 Ladies and Gentlemen: Reference is made to the Registration Statement on Form S-8 dated the date hereof (the "Registration Statement"), filed with the Securities and Exchange Commission by Alpine Lace Brands, Inc., a Delaware corporation (the "Company"). The Registration Statement relates to an aggregate of 330,950 shares (the "Shares") of common stock, par value $.01 per share (the "Common Stock"). The Shares will be issued by the Company upon (i) conversion of the Company's Series A 7.50% Cumulative Convertible Preferred Stock (the "Preferred Stock") and the (ii) exercise of warrants to purchase shares of Common Stock held by certain entities who received such warrants in connection with the Company's private placement offering of the Preferred Stock consummated on March 22, 1995. We advise you that we have examined originals or copies certified or otherwise identified to our satisfaction of the Certificate of Incorporation and By-laws of the Company, minutes of meetings of the Board of Directors and stockholders of the Company and such other documents, instruments and certificates of officers and representatives of the Company and public officials, and we have made such examination of the law, as we have deemed appropriate as the basis for the opinion hereinafter expressed. In making such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to original documents of documents submitted to us as certified or photostatic copies. OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP Securities and Exchange Commission August 2, 1995 Page -2- Based upon the foregoing, we are of the opinion that the Shares have been duly and validly issued, and are fully paid and non-assessable. We consent to the reference to this firm under the caption "Legal Opinion" in the Prospectus. Very truly yours, OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP EX-23.(A) 5 ACCOUNTANTS CONSENT CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We have issued our report dated February 10, 1995, except for Notes H, K, M, and N, as to which the dates are March 27, 1995, February 24, 1995, February 17, 1995 and March 22, 1995, respectively, accompanying the consolidated financial statements and schedule included in the Annual Report of Alpine Lace Brands, Inc. on Form 10-K for the year ended December 31, 1994 which are incorporated by reference in this Registration Statement. We hereby consent to the incorporation by reference in the Registration Statement of the aforementioned report and to the use of our name as it appears under the caption, "Experts." /s/ GRANT THORNTON LLP - ---------------------- GRANT THORNTON LLP Parsippany, New Jersey July 31, 1995 -----END PRIVACY-ENHANCED MESSAGE-----