EXHIBIT 4.1
THIS WARRANT AND THE SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR SUCH COMMON STOCK
MAY BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF
SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
THE COMPANY AND ITS LEGAL COUNSEL STATING THAT SUCH SALE, TRANSFER
OR ASSIGNMENT IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
WARRANT TO PURCHASE COMMON
STOCK
OF
DIEDRICH COFFEE,
INC.
VOID AFTER APRIL 29,
2014
April 29, 2009
No.
This certifies that Sequoia
Enterprises, Inc., a California limited partnership, or its
permitted successors and assigns (the “ Holder
”) is entitled, subject to the terms and conditions of this
Warrant, to purchase from Diedrich Coffee, Inc., a Delaware
corporation (the “ Company ”), all or any part
of an aggregate of 70,000 shares of the Company’s authorized
and unissued Common Stock, par value $0.01 per share (the “
Warrant Stock ”), at a price per share of $7.40 (the
“ Exercise Price ”), upon surrender of this
Warrant at the principal offices of the Company, together with a
duly executed subscription form and simultaneous payment of the
aggregate Exercise Price for the Warrant Stock so purchased in
lawful, immediately available money of the United States. The
number of shares of Warrant Stock issuable upon exercise of this
Warrant and the Exercise Price are subject to adjustment and
limitation as provided herein.
1. Definitions
. All capitalized terms
used but not defined herein shall have the respective meanings
ascribed to such terms in that certain Contingent Convertible Note
Purchase Agreement, dated as of May 10, 2004, as amended,
between the Company and the Holder (the “ Agreement
”).
2.
Exercise.
2.1 Right to Exercise . This
Warrant is exercisable in whole or in part, at any time or from
time to time, on or prior to April 29, 2014, after which this
Warrant will expire and no longer be exercisable.
2.2 Partial Exercise; No
Fractional Shares . Upon a partial exercise of this Warrant,
this Warrant shall be surrendered by the Holder and replaced with a
new warrant of like tenor for the balance of the shares of Warrant
Stock purchasable under this Warrant. No fractional shares may be
issued upon any exercise of this Warrant.
2.3 Form of Payment . Payment
by the Holder of the aggregate Exercise Price may be made by
(a) a check payable to the Company’s order,
(b) wire transfer of immediately available funds to
the
Company, (c) cancellation of indebtedness
of the Company to the Holder, or (d) any combination of the
foregoing. This Warrant is not eligible for cashless
exercise.
3. Change of Control
. To the extent possible,
the Company shall provide the Holder with no less than seven
(7) days prior written notice of a Change of Control. If the
Holder elects to exercise this Warrant in connection with a Change
of Control, the shares of Warrant Stock issuable upon exercise of
this Warrant shall be deemed to be issued to the Holder as the
record owner of such shares immediately prior to consummation of
the Change of Control.
4. Adjustment Provisions
. The number and
character of shares of Warrant Stock issuable upon exercise of this
Warrant (or any shares of stock or other securities or property at
the time receivable or issuable upon exercise of this Warrant) and
the Exercise Price therefor, are subject to adjustment upon the
occurrence of the following events between the date this Warrant is
issued and the date it is exercised or expires:
4.1 Adjustment for Stock Splits,
Stock Dividends, Recapitalizations, etc . The Exercise Price of
this Warrant and the number of shares of Warrant Stock issuable
upon exercise of this Warrant (or any shares of stock or
