As filed with the Securities and Exchange Commission on August 2, 1995
Registration No. 33-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
ALPINE LACE BRANDS, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 22-2717823
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
---------------------------
111 Dunnell Road
Maplewood, New Jersey 07040
(201) 378-8600
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(Address, including zip code, and telephone
number, including area code, of Registrant's principal
executive offices)
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Carl T. Wolf
Alpine Lace Brands, Inc.
111 Dunnell Road
Maplewood, New Jersey 07040
(201) 378-8600
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(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|
<PAGE>
<TABLE>
<CAPTION>
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
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<S> <C> <C> <C> <C>
Common Stock, $.01 par 310,950(2) $8.56 $2,661,732.00 $917.84
value, issuable upon
conversion of the
Preferred Stock
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Common Stock, $.01 par 20,000(3) $6.19(4) $123,800.00 $42.69
value, issuable upon
exercise of Warrants
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Total $960.53
====================================================================================================================================
</TABLE>
(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.
<PAGE>
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................................... *
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* Not applicable.
<PAGE>
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.
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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.
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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.
<PAGE>
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.
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<PAGE>
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.
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<PAGE>
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-
<PAGE>
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.
<TABLE>
<CAPTION>
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
- ------------------------------ --------------------- ------------ -------------------
<S> <C> <C> <C>
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
</TABLE>
___________________
(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-
<PAGE>
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.
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<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
/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
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
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
(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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
"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-
<PAGE>
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-
<PAGE>
(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
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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
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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
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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.
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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
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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
<PAGE>
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
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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
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<PAGE>
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.
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<PAGE>
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
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<PAGE>
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.
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(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
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<PAGE>
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
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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.
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<PAGE>
"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
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<PAGE>
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.
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<PAGE>
(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
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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.
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<PAGE>
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
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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.
<PAGE>
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
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
