EXHIBIT 10.11
NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE HEREUNDER HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES, OR DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE COMPANY THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE
OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT OR UNLESS SOLD IN FULL COMPLIANCE
WITH RULE 144 UNDER THE ACT.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS WARRANT HAS NOT BEEN
QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA OR
ANY OTHER STATE AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF
ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO SUCH QUALIFICATION IS
UNLAWFUL, UNLESS THE SALE OF SUCH SECURITIES IS EXEMPT FROM QUALIFICATION BY
SECTION 25110, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE OR SUCH
PROVISIONS OF THE CORPORATIONS CODE OF ANY SUCH OTHER STATE. THE RIGHTS OF THE
HOLDER OF THIS WARRANT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING
OBTAINED, UNLESS THE SALE IS SO EXEMPT.
THIS WARRANT IS NOT TRANSFERABLE OR ASSIGNABLE IN ANY MANNER AND NO INTEREST IN
THIS WARRANT MAY BE PLEDGED OR OTHERWISE ENCUMBERED BY NATIONSBANC ▇▇▇▇▇▇▇▇▇▇
SECURITIES, LLC WITHOUT THE EXPRESS WRITTEN CONSENT OF THE COMPANY, WHICH MAY BE
GIVEN OR WITHHELD BY THE COMPANY IN ITS SOLE DISCRETION.
Warrant to Purchase up to
27,104 Shares of
Series D Preferred Stock
(Subject to Adjustment)
▇▇▇▇▇'▇ RESTAURANTS, INC.
SERIES D PREFERRED STOCK PURCHASE WARRANT
December 31, 1997
▇▇▇▇▇'▇ RESTAURANTS, INC., a Delaware corporation (the "COMPANY"),
hereby certifies that for value received, NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities,
LLC ("▇▇▇▇▇▇▇▇▇▇ SECURITIES") is entitled, subject to the terms and
conditions set forth below to purchase from the Company at the price of
$8.63345 per share (the "EXERCISE PRICE") up to Twenty-Seven Thousand One
Hundred and Four (27,104) fully paid and nonassessable shares of Series D
Preferred Stock of the Company at any time or from time to time before 5:00
PM Pacific Standard Time on the earlier of (i) the business day immediately
preceding the effective date of the Company's registration statement in
connection with its initial public offering (a "Public Offering"), (ii) the
business day immediately preceding the date of the closing of an acquisition
of all or substantially all of the Company's outstanding stock or assets by
an unrelated entity, by merger or otherwise (an "Acquisition") or (iii)
December 31, 2002 (the "EXPIRATION DATE"). The Exercise Price and the number
of shares of Series D Preferred Stock of the Company issuable upon exercise
of this Warrant are subject to adjustment as provided in Section 3 below.
The Company shall notify ▇▇▇▇▇▇▇▇▇▇ Securities in writing, in accordance with
the notice requirements of Section 8.3 of this Warrant, at least 20 days
prior to the occurrence of the events described in section (i) and (ii) above.
As used herein the following terms shall have the following respective
meanings:
(a) The term "COMMON STOCK" shall mean the Common Stock of the Company,
and any other securities or property of the Company or of any other person
(corporate or otherwise) which ▇▇▇▇▇▇▇▇▇▇ Securities at any time shall be
entitled to receive upon the conversion of the Preferred Stock issuable upon the
exercise of this Warrant in lieu of or in addition to such Common Stock, or
which at any time shall be issuable in exchange for or in replacement of such
Common Stock.
(b) The term "SERIES D PREFERRED STOCK" shall mean the Series D Preferred
Stock of the Company, and any other securities or property of the Company or of
any other person (corporate or otherwise) which ▇▇▇▇▇▇▇▇▇▇ Securities at any
time shall be entitled to receive upon the exercise of this Warrant in lieu of
or in addition to such Series D Preferred Stock, or which at any time shall be
issuable in exchange for or in replacement of such Series D Preferred Stock.
(c) The term "WARRANT SHARES" shall mean the shares of Series D Preferred
Stock issuable upon the exercise of this Warrant.
1. INITIAL EXERCISE DATE; EXPIRATION. This Warrant may be exercised by
▇▇▇▇▇▇▇▇▇▇ Securities at any time or from time to time before the Expiration
Date.
2. METHOD OF EXERCISE.
2.1 EXERCISE OF WARRANT; PARTIAL EXERCISE. This Warrant may be
exercised in full or in part by ▇▇▇▇▇▇▇▇▇▇ Securities by surrender of this
Warrant, together with the form of subscription attached hereto as EXHIBIT A
duly executed by ▇▇▇▇▇▇▇▇▇▇ Securities, to the Company at its principal
office, accompanied by payment, in cash or by certified or official bank
check payable to the order of the Company, of the Exercise Price of the
Warrant Shares to be purchased hereunder. For any partial exercise hereof,
▇▇▇▇▇▇▇▇▇▇ Securities shall designate in a subscription in the form of
EXHIBIT A attached hereto delivered to the Company the number of Warrant
Shares that it wishes to purchase. On any such partial exercise, the Company
at its expense shall forthwith issue and deliver to ▇▇▇▇▇▇▇▇▇▇ Securities a
new warrant of like tenor, in the name of ▇▇▇▇▇▇▇▇▇▇ Securities, which shall
be exercisable for such number of Warrant Shares represented by this Warrant
which have not been purchased upon such exercise.
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2.2 NET ISSUANCE.
(a) RIGHT TO CONVERT. In addition to and without limiting the
rights of ▇▇▇▇▇▇▇▇▇▇ Securities under the terms of this Warrant, ▇▇▇▇▇▇▇▇▇▇
Securities shall have the right to convert this Warrant or any portion thereof
(the "Conversion Right") into shares of Series D Preferred Stock as provided in
this Section 2.2 at any time or from time to time prior to the Expiration Date.
Upon exercise of the Conversion Right with respect to a particular number of
shares subject to the Warrant (the "Converted Warrant Shares"), the Company
shall deliver to ▇▇▇▇▇▇▇▇▇▇ Securities (without payment by ▇▇▇▇▇▇▇▇▇▇ Securities
of any exercise price or any cash or other consideration) that number of shares
of fully paid and nonassessable Series D Preferred Stock computed using the
following formula:
X = Y (A - B)
---------
A
Where: X = the number of shares of Series D Preferred
Stock to be delivered to ▇▇▇▇▇▇▇▇▇▇
Securities
Y = the number of Converted Warrant Shares
A = the per share fair market value of the Series
D Preferred Stock on the Conversion Date (as
defined below)
B = the Exercise Price of the Warrant (as adjusted to
the Conversion Date)
The Conversion Right may only be exercised with respect to a whole number of
shares subject to the Warrant. No fractional shares shall be issuable upon
exercise of the Conversion Right, and if the number of shares to be issued
determined in accordance with the foregoing formula is other than a whole
number, the Company shall pay to ▇▇▇▇▇▇▇▇▇▇ Securities an amount in cash equal
to the fair market value of the resulting fractional share on the Conversion
Date (as defined below). Shares issued pursuant to the Conversion Right shall
be treated as if they were issued upon the exercise of the Warrant.
(b) METHOD OF EXERCISE. The Conversion Right may be exercised
by ▇▇▇▇▇▇▇▇▇▇ Securities by the surrender of the Warrant at the principal office
of the Company together with a written statement specifying that ▇▇▇▇▇▇▇▇▇▇
Securities thereby intends to exercise the Conversion Right and indicating the
total number of shares under the Warrant that ▇▇▇▇▇▇▇▇▇▇ Securities is
exercising through the Conversion Right. Such conversion shall be effective
upon receipt by the Company of the Warrant together with the aforesaid written
statement, or on such later date as is specified therein (the "Conversion
Date"). Certificates for the shares issuable upon exercise of the Conversion
Right and, if applicable, a new warrant
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evidencing the balance of the shares remaining subject to the Warrant, shall
be issued as of the Conversion Date and shall be delivered to ▇▇▇▇▇▇▇▇▇▇
Securities promptly following the Conversion Date.
(c) DETERMINATION OF FAIR MARKET VALUE. For purposes of this
Section 2.2, fair market value of a share of Series D Preferred Stock on the
Conversion Date shall mean:
(i) If the Conversion Right is exercised in connection with a Public
Offering, and if the Company's Registration Statement relating to such
Public Offering has been declared effective by the Securities and Exchange
Commission, the initial "Price to Public" specified in the final prospectus
with respect to such offering times the number of shares of Common Stock
into which each Converted Warrant Share is then convertible.
(ii) If the Conversion Right is exercised in connection with an
Acquisition, the effective per share consideration to be received in an
Acquisition by holders of the Common Stock, which price shall be as
specified in the agreement entered into with respect to such Acquisition
and determined assuming receipt of the aggregate exercise price of all
outstanding warrants to purchase equity securities of the Company (the
"Outstanding Warrants"), or if no such price is set forth in the agreement
concerning the Acquisition, than as determined in good faith by the
Company's Board of Directors upon a review of relevant factors, including
the aggregate exercise price of all Outstanding Warrants.
(iii) If the Conversion Right is not exercised in connection with
an Acquisition or in connection with and contingent upon a Public Offering,
then as follows:
(A) If such type of security is traded on a securities exchange,
the fair market value shall be deemed to be the average of the closing
prices of such type of security on such exchange over the 30-day period
ending five business days prior to the Conversion Date;
(B) If such type of security is traded over-the-counter, the
fair market value shall be deemed to be the average of the closing bid
prices of such type of security over the 30-day period ending five business
days prior to the Conversion Date; and
(C) If there is no public market for such type of security, then
fair market value shall be determined by mutual agreement of ▇▇▇▇▇▇▇▇▇▇
Securities and the Company, and if ▇▇▇▇▇▇▇▇▇▇ Securities and the Company
are unable to so agree, by an investment banker of national reputation
selected by the Company and reasonably acceptable to ▇▇▇▇▇▇▇▇▇▇
Securities. All fees and expenses for such investment banker shall be
paid for by ▇▇▇▇▇▇▇▇▇▇ Securities.
2.3 WHEN EXERCISE EFFECTIVE. The exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
business day on which this Warrant and any other items necessary for the
effective exercise of this Warrant are surrendered to the Company as provided in
this Section 2 (such day is referred to herein as the
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"Exercise Date"), and at such time the person in whose name any certificate
for shares of Series D Preferred Stock are issuable upon such exercise, as
provided in Section 2.3, shall be deemed to be the record holder of such
Series D Preferred Stock for all purposes.
2.4 DELIVERY ON EXERCISE. As soon as practicable after the exercise
of this Warrant in full or in part, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to ▇▇▇▇▇▇▇▇▇▇ Securities, or as ▇▇▇▇▇▇▇▇▇▇ Securities may
direct, a certificate or certificates for the number of fully paid and
nonassessable full shares of Series D Preferred Stock to which ▇▇▇▇▇▇▇▇▇▇
Securities shall be entitled on such exercise.
3. ADJUSTMENTS TO SERIES D PREFERRED STOCK AND EXERCISE PRICE. The
number of shares of Series D Preferred Stock (or any shares of stock or other
securities which may be) issuable upon exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
3.1 SPLITS AND SUBDIVISIONS. In the event the Company should at any
time or from time to time fix a record date for the effectuation of a split or
subdivision of the outstanding shares of Series D Preferred Stock or the
determination of the holders of Series D Preferred Stock entitled to receive a
dividend or other distribution payable in additional shares of Series D
Preferred Stock or other securities or rights convertible into, or entitling the
holder thereof to receive directly or indirectly, additional shares of Series D
Preferred Stock ("SERIES D PREFERRED STOCK EQUIVALENTS") without payment of any
consideration by such holder for the additional shares of Series D Preferred
Stock or Series D Preferred Stock Equivalents (including the additional shares
of Series D Preferred Stock issuable upon conversion or exercise thereof), then,
as of such record date (or the date of such split, subdivision, dividend or
other distribution if no record date is fixed), the Exercise Price shall be
appropriately decreased and the number of shares of Series D Preferred Stock
issuable upon exercise of this Warrant shall be appropriately increased in
proportion to such increase in outstanding shares of Series D Preferred Stock.
3.2 COMBINATION OF SHARES. If the number of shares of Series D
Preferred Stock outstanding at any time after the date hereof is decreased by a
combination of the outstanding shares of Series D Preferred Stock, the Exercise
Price shall be appropriately increased and the number of shares of Series D
Preferred Stock issuable upon exercise of this Warrant shall be appropriately
decreased in proportion to such decrease in outstanding shares of Series D
Preferred Stock.
3.3 ADJUSTMENTS FOR OTHER DISTRIBUTIONS. In the event the Company
shall declare a distribution payable to the holders of Series D Preferred Stock
in securities of other persons, evidences of indebtedness issued by the Company
or other persons, assets (excluding cash dividends) or options or rights not
referred to in Section 3.1, then, in each such case for the purpose of this
Section 3.3, upon exercise of this Warrant ▇▇▇▇▇▇▇▇▇▇ Securities shall be
entitled to a proportionate share of any such distribution as though ▇▇▇▇▇▇▇▇▇▇
Securities was the holder of the number of shares of Series D Preferred Stock of
the Company issuable upon exercise of this Warrant as of the record date fixed
for the determination of the holders of Series D Preferred Stock entitled to
receive such distribution.
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3.4 RECLASSIFICATION OR REORGANIZATION. If the Series D Preferred
Stock (or any shares of stock or other securities which may be) issuable upon
exercise of this Warrant shall be changed into the same or different number of
shares of any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend provided for in Sections 3.1, 3.2 or 3.3 above, or an
acquisition of all or substantially all of the Company's outstanding stock or
assets by an unrelated entity, by merger or otherwise, prior to which this
Warrant shall cease to be exercisable as provided above), then and in each such
event ▇▇▇▇▇▇▇▇▇▇ Securities shall be entitled to receive upon the exercise of
this Warrant the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other change,
to which a holder of the number of shares of Series D Preferred Stock (or any
shares of stock or other securities which may be) issuable upon exercise of this
Warrant would have received if this Warrant had been exercised immediately prior
to such reorganization, reclassification or other change.
3.5 NOTICE OF ADJUSTMENTS AND RECORD DATES. The Company shall
promptly notify ▇▇▇▇▇▇▇▇▇▇ Securities in writing of each adjustment or
readjustment of the Exercise Price and the number of shares of Series D
Preferred Stock (or any shares of stock or other securities which may be)
issuable upon exercise of this Warrant. Such notice shall state the adjustment
or readjustment and show in reasonable detail the facts on which the adjustment
or readjustment is based. In the event of any taking by the Company of a record
of (a) the holders of Series D Preferred Stock for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution, or (b) the holders of the Company's outstanding capital stock for
the purpose of approving any acquisition of all or substantially all of the
Company's outstanding stock or assets by an unrelated entity, by merger or
otherwise, the Company shall notify ▇▇▇▇▇▇▇▇▇▇ Securities in writing of such
record date at least twenty (20) days prior to such record date.
3.6 NO IMPAIRMENT. The Company will not avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Company, but will at all times in good faith assist in the
carrying out of all the provisions of this Warrant.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants that:
4.1 STOCK TO BE RESERVED. The Company will at all times reserve
and keep available out of its authorized Series D Preferred Stock and Common
Stock, solely for the purpose of issuance upon the exercise of this Warrant
as herein provided, such number of shares of Series D Preferred Stock as
shall then be issuable upon the exercise of this Warrant and such number of
shares of Common Stock as shall be issuable upon conversion of such Series D
Preferred Stock. The Company shall from time to time in accordance with
applicable law increase the authorized amount of its Series D Preferred Stock
and/or Common Stock if at any time the number of shares of Series D Preferred
Stock and/or Common Stock remaining unissued and available for issuance shall
not be sufficient to permit exercise of this Warrant and the conversion of
such shares of Series D Preferred Stock to Common Stock. The Company
covenants that, upon issuance in accordance with the terms of this Warrant,
all shares of Series
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D Preferred Stock which shall be so issued and any Common Stock issued upon
the conversion of such Series D Preferred Stock, shall be duly and validly
issued and fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof, and, without limiting the
generality of the foregoing, the Company will take all such action as may be
necessary to assure that all such shares of Series D Preferred Stock and
Common Stock may be so issued without violation of any applicable law or
regulation, or of any requirements of any national securities exchange upon
which shares of capital stock of the Company may be listed.
4.2 ISSUE TAX. The issuance of certificates for shares of Series D
Preferred Stock upon exercise of this Warrant shall be made without charge to
▇▇▇▇▇▇▇▇▇▇ Securities for any issue tax in respect thereof provided that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of ▇▇▇▇▇▇▇▇▇▇ Securities of this Warrant.
4.3 CLOSING OF BOOKS. The Company will at no time close its transfer
books against the transfer of the shares of Series D Preferred Stock issued or
issuable upon the exercise of this Warrant in any manner which interferes with
the timely exercise of this Warrant.
5. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇▇▇▇ SECURITIES. ▇▇▇▇▇▇▇▇▇▇
Securities hereby represents and warrants that:
5.1 AUTHORIZATION. ▇▇▇▇▇▇▇▇▇▇ Securities represents that it has full
power and authority to enter into this Warrant and that this Warrant constitutes
a valid and legally binding obligation of ▇▇▇▇▇▇▇▇▇▇ Securities.
5.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Warrant is issued and
sold to ▇▇▇▇▇▇▇▇▇▇ Securities in reliance upon ▇▇▇▇▇▇▇▇▇▇ Securities's
representation to the Company, which by ▇▇▇▇▇▇▇▇▇▇ Securities's execution of
this Warrant ▇▇▇▇▇▇▇▇▇▇ Securities hereby confirms, that this Warrant, the
Series D Preferred Stock issuable upon exercise hereof and the Common Stock
issuable upon conversion of such Series D Preferred Stock (collectively, the
"Securities") will be acquired for investment for ▇▇▇▇▇▇▇▇▇▇ Securities's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that ▇▇▇▇▇▇▇▇▇▇ Securities has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Warrant, ▇▇▇▇▇▇▇▇▇▇ Securities further represents
that ▇▇▇▇▇▇▇▇▇▇ Securities does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities.
5.3 RELIANCE UPON ▇▇▇▇▇▇▇▇▇▇ SECURITIES'S REPRESENTATIONS.
▇▇▇▇▇▇▇▇▇▇ Securities understands that this Warrant is not, and any Series D
Preferred Stock acquired upon the exercise hereof and any Common Stock acquired
upon the conversion of any such Series D Preferred Stock at time of issuance may
not be, registered under the Securities Act on the ground that the sale provided
for in this Warrant and the issuance of the Series D Preferred Stock hereunder
is exempt from registration under the Securities Act pursuant to Section 4(2)
thereof or Regulation D promulgated by the Securities and Exchange Commission
under the Securities Act, and that the Company's reliance on such exemption is
predicated on ▇▇▇▇▇▇▇▇▇▇
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Securities's representations set forth herein. ▇▇▇▇▇▇▇▇▇▇ Securities realizes
that the basis for the exemption may not be present if, notwithstanding such
representations, ▇▇▇▇▇▇▇▇▇▇ Securities has in mind merely acquiring any of
the Securities for a fixed or determinable period in the future, or for a
market rise, or for sale if the market does not rise. ▇▇▇▇▇▇▇▇▇▇ Securities
has no such intention.
5.4 RECEIPT OF INFORMATION. ▇▇▇▇▇▇▇▇▇▇ Securities believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase this Warrant. ▇▇▇▇▇▇▇▇▇▇ Securities further represents that
it has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of this Warrant and the
business, properties, prospects and financial condition of the Company and to
obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to it or to which
it had access.
5.5 INVESTMENT EXPERIENCE. ▇▇▇▇▇▇▇▇▇▇ Securities represents that it
is experienced in evaluating and investing in securities of companies in the
development stage and acknowledges that it is able to fend for itself, can bear
the economic risk of its investment, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in this Warrant. ▇▇▇▇▇▇▇▇▇▇ Securities also represents
it has not been organized for the purpose of acquiring this Warrant.
5.6 RESTRICTED SECURITIES. ▇▇▇▇▇▇▇▇▇▇ Securities understands that
this Warrant and the Securities are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations this Warrant and the Securities may be resold
without registration under the Securities Act only in certain limited
circumstances. ▇▇▇▇▇▇▇▇▇▇ Securities has no need for liquidity of its
investment in this Warrant or the Securities. In this connection, ▇▇▇▇▇▇▇▇▇▇
Securities represents that it is familiar with Securities and Exchange
Commission Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act.
5.7 LEGENDS. To the extent applicable, any certificates for the
shares of Series D Preferred Stock issued upon exercise of this Warrant and the
shares of Common Stock issued upon conversion of such Series D Preferred Stock
shall be endorsed with the legends set forth below, and ▇▇▇▇▇▇▇▇▇▇ Securities
covenants that, except to the extent such restrictions are waived by the
Company, ▇▇▇▇▇▇▇▇▇▇ Securities shall not dispose of any interest in any of the
shares of Series D Preferred Stock issued upon exercise of this Warrant or the
shares of Common Stock issued upon conversion of such Series D Preferred Stock
without complying with the restrictions on transfer described in the legends
endorsed on such certificates:
(a) THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED
UNDER SUCH ACT, OR UNLESS THE
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COMPANY HAS RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND
ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) Any legend required by (i) any other agreement with the
Company to which ▇▇▇▇▇▇▇▇▇▇ Securities is a party or (ii) the securities laws
of any state or other governmental or regulatory agency having authority over
the issuance of the shares of Series D Preferred Stock issued upon exercise
of this Warrant or the shares of Common Stock issued upon conversion of such
Series D Preferred Stock.
6. REPLACEMENT OF WARRANT. On receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver to ▇▇▇▇▇▇▇▇▇▇ Securities, in lieu thereof, a
new Warrant of like tenor.
7. NO RIGHTS OR LIABILITY AS A STOCKHOLDER. This Warrant does not
entitle ▇▇▇▇▇▇▇▇▇▇ Securities hereof to any voting rights or other rights as a
stockholder of the Company. No provisions hereof, in the absence of affirmative
action by ▇▇▇▇▇▇▇▇▇▇ Securities to purchase the Series D Preferred Stock of the
Company, and no enumeration herein of the rights or privileges of ▇▇▇▇▇▇▇▇▇▇
Securities, shall give rise to any liability of ▇▇▇▇▇▇▇▇▇▇ Securities as a
stockholder of the Company.
8. MISCELLANEOUS.
8.1 TRANSFER OF WARRANT. This Warrant shall not be transferable or
assignable in any manner and no interest shall be pledged or otherwise
encumbered by ▇▇▇▇▇▇▇▇▇▇ Securities without the express written consent of the
Company, which may be given or withheld by the Company in its sole discretion,
and any such attempted disposition of this Warrant or any portion hereof shall
be of no force or effect.
8.2 TITLES AND SUBTITLES. The titles and subtitles used in this
Warrant are for convenience only and are not to be considered in construing or
interpreting this Warrant.
8.3 NOTICES. Any notice required or permitted under this Warrant
shall be given in writing and shall be deemed effectively given to the party to
be notified upon personal delivery by hand or professional courier service, upon
delivery by facsimile transmission or five (5) days after deposit with the
United States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other party.
8.4 ATTORNEYS' FEES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and disbursements in addition to
any other relief to which such party may be entitled.
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8.5 AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended
and the observance of any term of this Warrant may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and ▇▇▇▇▇▇▇▇▇▇ Securities.
8.6 SEVERABILITY. If one or more provisions of this Warrant are held
to be unenforceable under applicable law, such provision shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.7 GOVERNING LAW. This Warrant shall be governed by and construed
and enforced in accordance with the laws of the State of California, without
giving effect to its conflicts of laws principles.
8.8 ENTIRE AGREEMENT. This Warrant contains the entire agreement
between the Company and ▇▇▇▇▇▇▇▇▇▇ Securities with regard to the subject matter
hereof, and supersedes all prior agreements and understandings, whether written
or oral, with regard to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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8.9 COUNTERPARTS. This Warrant may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Date: December 31, 1997 ▇▇▇▇▇'▇ Restaurants, Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Its: President
-------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
ACKNOWLEDGED AND AGREED:
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, LLC
By: /s/ illegible
--------------------------
Its: Senior Managing Director
--------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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EXHIBIT A
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
To: ▇▇▇▇▇'▇ Restaurants, Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, LLC hereby (a) irrevocably elects to
exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, _____________________________* shares of Series D Preferred Stock
of ▇▇▇▇▇'▇ Restaurants, Inc., and herewith makes payment of $_________________
therefor, (b) requests that the certificates for such shares be issued in the
name of, and delivered to _____________________________________________, whose
address is __________________________________________________________________,
and (c) reaffirms that all of the representations and warranties of NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities, LLC contained in Section 5 of the Warrant are true and
correct as of the date hereof.
Dated: ________________________
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, LLC
By: ____________________________________
Its: ____________________________________
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (415) ___________
------------------
* Insert here the number of shares as to which the Warrant is being exercised.
A-1