**Exhibit 4.1**

 

**STOCKPURCHASE AGREEMENT**

 

**DATED AS OFNOVEMBER 19, 2003**

 

**BETWEEN**

 

**MAIN STREETAND MAIN INCORPORATED**

 

**AND**

 

**SergioZyman**

 

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**MAIN STREET AND MAIN INCORPORATED**

**5050 North 40th Street, Suite 200**

**Phoenix, Arizona 85018**

 

 

November 19,2003

 

 

Mr. Sergio Zyman

Zyman Marketing Group

Chairman & Founder

2695 Buford Highway

Suite 200

Atlanta, Georgia  30324

 

 

Dear Mr. Zyman:

 

This will confirmthe terms and conditions of your $1,000,000 investment in Main Street and MainIncorporated (the “Company”).

 

1.**             Sale of the Shares**.  The Company will sell to you, and you willpurchase from the Company, 500,000 shares of the Company’s Common Stock (the“Shares”) at a price of $2.00 per share.

 

2.**             Representations, Warranties, and Agreements of the Company**.  In connection with your purchase, theCompany represents, warrants, and agrees as follows:

 

(a)**           Status and Authority of the Company**.  The Company is a corporation duly organized,validly existing and in good standing under the laws of the state of Delawareand has the power to own its assets and properties and to carry on its businessas it is now being conducted.

 

(b)**           Power of the Company to Execute Agreement**.  The Company has full power and authority toexecute, deliver, and perform this Agreement, and this Agreement is the legaland binding obligation of the Company and is enforceable against it inaccordance with its terms.

 

(c)**           Agreement Not in Breach of Other Agreements Affecting the Company**.  The execution and delivery of thisAgreement, the consummation of the transactions hereby contemplated, and thefulfillment of the terms hereof will not result in the breach of any term orprovision of, or constitute a default under, or conflict with, or cause theacceleration of any obligation under, any agreement or other instrument of anydescription to which the

 

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Company is a party or bywhich the Company is bound, or any judgment, decree, order, or award of anycourt, governmental body, or arbitrator.

 

(d)**           Status of Shares to be Purchased**.  When issued and paid for, the Shares will beduly and validly authorized and issued, fully paid, and non-assessable.

 

3.             **Buyer’sRepresentations, Warranties and Agreements**.  To induce the Company to issue the Shares,you represent, warrant, and agree as follows:

 

(a)           **Powerof the Buyer to Execute Agreement**. You have full power to execute, deliver, and perform this Agreement, andthis Agreement is your legal and binding obligation and is enforceable againstyou in accordance with its terms.

 

(b)           **AgreementNot in Breach of Other Instruments**. The execution and delivery of this Agreement, the consummation of thetransactions contemplated hereby, and the fulfillment of the terms hereof willnot result in the breach of any term or provision of, or constitute a defaultunder, or conflict with, or cause the acceleration of any obligation under, anyagreement or other instrument of any description to which you are a party or bywhich you are bound, or any judgment, decree, order, or award of any court,governmental body, or arbitrator.

 

4.             **FurtherRepresentations, Warranties, and Agreements of Buyer**.  You further represent, warrant, and agree asfollows:

 

(a)           **Abilityto Bear Risk; Business and Financial Knowledge and Experience**.  You can bear the economic risk of thepurchase of the Shares; you have sufficient knowledge and experience inbusiness and financial matters as to be capable of evaluating the merits andrisks of your purchase of the Shares; and you are an accredited investor asdefined in Rule 501 under the Securities Act of 1933.

 

(b)           **KnowledgeRespecting the Company**.  You(i) know or have had the opportunity to acquire all information concerning thebusiness, affairs, financial condition, plans, and prospects of the Companythat you deem relevant to make a fully informed decision respecting thepurchase of the Shares, (ii) have been encouraged and have had the opportunityto rely upon the advice of your legal counsel and accountants and otheradvisers with respect to the purchase of the Shares; and (iii) have had theopportunity to ask such questions and receive such information and answersrespecting, among other things, the business, affairs, financial condition,plans, and prospects of the Company and the terms and conditions of thepurchase of the Shares as you have requested so as to more fully understandyour investment.  Without limiting theforegoing, you acknowledge that you have been provided with or have access tocomplete copies of the Company’s Form 10-K Report for the year endedDecember 30, 2002, the Company’s Form 10-Q Report for the quarter endedSeptember 29, 2003, the Company’s 2003 Annual Report to Stockholders, andthe Company’s Proxy Statement for its 2003 Annual Meeting of Stockholders.

 

(c)           **Absenceof Representations and Warranties**. You confirm that neither the Company nor anyone purportedly acting onbehalf of the Company has made any representations, warranties, agreements, orstatements other than those contained herein respecting the business, affairs,financial condition, plans, or prospects of the Company nor have

 

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you relied on anyrepresentations, warranties, agreements, or statements in the belief that theywere made on behalf of any of the foregoing nor have you relied on the absenceof any such representations, warranties, agreements, or statements in reachingyour decision to purchase the Shares.

 

(d)           **NoDistribution**.  You areacquiring the Shares for your own account without a view to public distributionor resale, and you have no contract, undertaking, agreement, or arrangement to transfer, sell, orotherwise dispose of any Shares or any interest therein to any other person.

 

(e)           **Sharesto be Restricted**.  Youunderstand that the Shares will be “restricted securities” within the meaningof Rule 144 under the Securities Act of 1933, as amended (the “SecuritiesAct”).  The certificates representingthe Shares will have a legend to this effect.

 

5.             **Registration Rights**.  If at any time the Company determines toregister any of its securities under the Securities Act for sale to the public,whether for its own account or for the account of other security holders orboth (except with respect to registration statements on Form S-8 or its thenequivalent, or in connection with a Rule 145 transaction or Form S-4 or itsequivalent, or another form not available for registering the Shares for saleto the public), each such time it will give prompt written notice to you of itsintention so to do and of the proposed method of distribution of suchsecurities.  Upon your written request,received by the Company within 20 days after the giving of any such notice bythe Company, to include in the registration all or any part of the Shares, theCompany will use all reasonable efforts to cause the Shares as to whichregistration shall have been so requested under this Section 5 tobe included in the securities to be covered by the registration statementproposed to be filed by the Company, all to the extent and under the conditionssuch registration is permitted under the Securities Act.  In the event that any registration pursuantto this Section 5 shall be, in whole or in part, an underwrittenpublic offering of Common Stock, the number of Shares to be included in such anunderwriting may be reduced if and to the extent that the managing underwritershall be of the opinion that the inclusion of some or all of the Shares wouldadversely affect the marketing of the securities to be sold by the Companytherein.  Any such limitation shall beimposed in such manner so as to avoid any diminution in the number of sharesthe Company may register for sale by giving first priority for the shares to beregistered for issuance and sale by the Company.  Notwithstanding the foregoing provisions, the Company may, in itssole discretion, terminate or withdraw any registration statement referred toin this Section 5 without thereby incurring any liability to you.

 

In such event, however, theCompany shall use its best efforts to register the Shares as part of theunderwritten registration even if only part or none of the Shares are offeredfor sale as part of the underwritten public offering.  The Company agrees to indemnify you and hold you harmless againstany and all loss, liability, claim, damage and expense whatsoever, as incurred,to which you may become subject under the Securities Act or otherwise thatarise out of or are based upon any untrue statement or alleged untrue statementof a material fact contained in a registration statement registering, or anyprospectus covering, the Shares, or any amendment thereto, or the omission oralleged omission to state therein a material fact required to be stated thereinor necessary to make the statements therein not misleading, and against any andall loss, liability, claim, damage and expense whatsoever  (including

 

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reasonable fees anddisbursements of counsel), incurred by you in investigating, preparing ordefending against, or to the extent of the aggregate amount paid in settlementof, any litigation, or investigation or proceeding by any governmental agencyor body, commenced or threatened, or of any claim whatsoever based upon anysuch untrue statement or alleged untrue statement or any omission or allegedomission, if such settlement is effected with the written consent of theCompany.

 

6.             **Further Assurances**.  You and the Company shall execute anddeliver all such other instruments and take all such other action as either ofus may reasonably request from time to time in order to effectuate thetransactions provided for herein.

 

**7.            **Miscellaneous.

 

(a)           **ControllingLaw**.  This Agreement and allquestions relating to its validity, interpretation, performance, andenforcement will be governed by and construed in accordance with the laws ofthe state of Delaware, notwithstanding any Delaware or other conflict-of-lawprovisions to the contrary.

 

(b)           **BindingNature of Agreement; No Assignment**. This Agreement shall be bindingupon and inure to the benefit of you and the Company and the respective heirs,personal representatives, successors, and assigns of you and the Company,except that neither you nor the Company may assign or transfer any rights orobligations under this Agreement without the prior written consent of theother.

 

(c)           **EntireAgreement**.  This Agreementcontains the entire understanding between you and the Company with respect tothe subject matter hereof and supersedes all prior and contemporaneousagreements and understandings, inducements or conditions, express or implied,oral or written, except as herein contained.

 

(d)           **ParagraphHeadings**.  The paragraphheadings in this Agreement are for convenience only; they form no part of thisAgreement and shall not affect its interpretation.

 

If the foregoing issatisfactory and you wish to acquire the Shares subject to the terms andconditions set forth herein, would you so indicate by signing and returning acopy of this letter to me.

 
|   | Very truly yours,                  |
|--------|------------------------------------|
|   |                               |
|   | MAIN STREET AND MAIN  INCORPORATED |
|   |                               |
|   |                               |
|   | By:                                | John F. Antioco |   |
|   | Chairman of the Board              |

 

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| ACCEPTED AND APPROVED: |
|------------------------|
|                   |
|                   |
| Sergio Zyman           |
|                   |
|                   |
| Dated:                 |   |   |

 

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