Exhibit 4.3
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER THE ACT
AND ANY APPLICABLE. STATE SECURITIES LAWS OR UNLESS THE ISSUER HAS RECEIVED AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT (WHICH COUNSEL MAY BE INTERNAL
COUNSEL TO SUCH HOLDER BUT MUST BE SATISFACTORY TO THE ISSUER), IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER, THAT SUCH OFFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION, TRANSFER OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION OR IS
OTHERWISE IN COMPLIANCE WITH THE ACT AND SUCH OTHER LAWS. THE SHARES ISSUABLE
UPON THE EXERCISE HEREOF ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND OTHER
CONDITIONS SPECIFIED HEREIN.
No. ▇-▇
San Diego, California
As of December 30, 2003
AMENDED AND RESTATED
STEAKHOUSE PARTNERS, INC.
COMMON STOCK PURCHASE WARRANT
STEAKHOUSE PARTNERS, INC., a Delaware corporation (the "Company"),
hereby certifies that, for value received, Critical Capital Growth Fund, L.P. is
entitled, subject to the terms and conditions set forth below, (a) to purchase
from the Company One Hundred Fifty Thousand (150,000) duly authorized, validly
issued, fully paid and nonassessable shares of Common Stock, par value $.001 par
share, of the Company (the "Common Stock"), at the purchase price per share of
$1.1111 (the "Initial Exercise Price"), at any time or from time to time on or
after April 1, 2005 through and including the close of business on December 31,
2010 (the "Exercise Period")and (b) to exercise the other rights of a Holder (as
such term and each other capitalized term used herein without definition are
defined in section 8) set forth herein. The number and character of such shares
of Common Stock are subject to adjustment as provided herein.
1. Warrants. This warrant is the common stock purchase warrant
(the "Warrant", such term to include all Warrants issued in substitution
herefor) originally authorized for issuance pursuant to that certain First
Amended Joint Plan of Reorganization of Steakhouse Partners, Inc. et al., dated
as of September 29, 2003 (the "Plan") (as the same may have been modified ) and
the Order confirming the Plan entered on December 19, 2003.
2. Exercise of Warrant.
2.1 Manner of Exercise. This Warrant may be exercised at any time
during the Exercise Period by the Holder, in whole or in part, on any Business
Day by surrender of this Warrant, with the form of subscription at the end
hereof duly executed by the Holder, to the Company at its office at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Secretary, or at such
other address or to the attention of such other person as the Company shall have
designated to the Holder of this Warrant in writing, accompanied by payment, by
wire transfer of immediately available funds or certified or official bank check
payable to the order of the Company, in the amount obtained by multiplying (a)
the number of shares of Common Stock designated in such form of subscription by
(b) the Warrant Price (as defined in Section 3 below), and such Holder shall
thereupon be entitled to receive the number of duly authorized, validly issued,
fully paid and non-assessable Shares as determined pursuant to section 3.
2.2 When Exercise Effective. Each 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 shall have been surrendered to the
Company as provided in section 2.1, and at such time the Person or Persons in
whose name or names any certificate or certificates for Shares shall be issuable
upon such exercise as provided in section 2.3 shall be deemed to have become the
Holder or Holders of record thereof.
2.3 Delivery of Stock Certificates, etc. As soon as practicable
after the exercise of this Warrant, in whole or in part, and. in any event
within seven days thereafter, the Company at its expense (including the payment
by it of any applicable issuance taxes) will cause to be issued in the name of
and delivered to the Holder hereof:
(i) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and non-assessable Shares to
which such Holder shall be entitled upon such exercise, which
certificates shall bear appropriate restrictive legends, and
(ii) in case such exercise is in part only, a new Warrant of like
tenor, calling on its face for the number of shares of Common Stock as
to which this Warrant shall then remain unexercised.
3. Number of Shares Receivable Upon Exercise. The number of
Shares receivable upon the exercise of this Warrant is subject to adjustment
upon the happening of certain events specified in section 4. For the purposes of
section 4, the "Warrant Price" referred to herein shall initially be the Initial
Exercise Price and shall be adjusted and readjusted from time to time as
provided in section 4. The Holder of this Warrant shall, upon exercise hereof as
provided in section 2, be entitled to receive the number of shares of Common
Stock determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this section 3 and section 4) be issuable
upon such exercise by an action of which (a) the numerator is the Initial
Exercise Price and (b) the denominator is the Warrant Price in effect at the
time of such exercise. The price to be paid for each such share of Common Stock
by the Holder shall be the Warrant Price as adjusted pursuant to section 4,
provided that the price paid by the Holder for any shares of Common Stock upon
exercise of this Warrant shall never be less than $.001 per share.
4. Adjustment of Warrant Price, etc.
4.1 Adjustments. The Warrant Price shall be subject to
adjustment as follows:
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(a) Stock Dividends, Stock Splits, etc. In case the Company at
any time or from time to time after the date hereof shall issue
additional shares of Common Stock as a result of the declaration or
payment of a dividend on the Common Stock payable in Common Stock, or as
a result of a subdivision of the outstanding shares of Common Stock into
a greater number of shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock),
then, and in each such case, the Warrant Price then in effect shall be
reduced, concurrently with the issuance of such shares, to a price
(calculated to the nearest one-hundredth of one cent) determined by
multiplying such Warrant Price by a fraction (i) the numerator of which
shall be the number, shares of Common Stock actually outstanding
immediately prior to such issuance of additional shares of Common Stock,
and (ii) the denominator of which shall be the number of shares of
Common Stock actually outstanding immediately after such issuance,
provided that, for purposes of this section 4.1(a), (x) additional
shares of Common Stock shall be deemed to have been issued (1) in the
case of any such dividend, immediately after the close of business on
the record date for the determination of holders of any class of
securities entitled to receive dividend or (2) in the case of any such
subdivision, at the close of business on the date immediately prior to
the day upon which such corporate action becomes effective, (y)
immediately after any additional shares of Common Stock are deemed to
have been issued, such additional shares of Common Stock shall be deemed
to be outstanding, and (z) treasury shares shall be deemed not to be
outstanding.
(b) Combinations, etc. In case the Company at any time or from
time to time after the date hereof shall combine or consolidate the
outstanding shares of Common Stock, by reclassification or otherwise,
into a lesser number of shares of Common Stock, then and in each such
case, the Warrant Price then in effect shall be increased, concurrently
with the effectiveness of such combination or consolidation, to a price
(calculated to the nearest one-hundredth of one cent) determined by
multiplying such Warrant Price by a fraction (i) the numerator of which
shall be the number of shares of Common Stock actually outstanding
immediately prior to the effectiveness of such combination or
consolidation and (ii) the denominator of which shall be the number of
shares of Common Stock actually outstanding immediately after such
effectiveness.
4.2 Exercise of Warrant in the Event of a Consolidation, Merger,
Sale of Assets, Reorganization, etc.
(a) In case at any time the Company shall be a party to any
Transaction, then (i) upon the consummation thereof this Warrant shall
become exercisable and shall be deemed to have been exercised by the
Holder hereof without any act on the part of such Holder and without any
obligation on the part of such Holder to pay the exercise price until
presentation of this Warrant pursuant to clause (ii) below, and (ii)
this Warrant shall represent the right of such Holder to receive (upon
presentation of this Warrant on or after the date of such consummation
together with payment of the aggregate exercise price payable at
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the time of such consummation in accordance with section 2.1 for all
shares of Common Stock issuable upon such exercise immediately prior to
such consummation), in lieu of the Common Stock issuable upon exercise
of this Warrant prior to such consummation, the cash, securities and
other property to which such Holder would have been entitled upon the
consummation of the Transaction if such Holder had exercised this
Warrant immediately prior thereto. Upon the consummation of any such
transaction, all rights of a Holder specified in this Warrant, other
than those specified above in this section 4.2, shall terminate.
(b) The Company will not effect any Transaction unless, prior to
the consummation thereof, each corporation or entity (other than the
Company) which may be required to deliver any cash, securities or other
property upon the exercise of this Warrant as provided herein shall
assume, by written instrument delivered to the Holder of this Warrant,
the obligation to deliver to such Holder such cash, securities or other
property as, in accordance with the forgoing provision, such Holder may
be entitled to receive.
4.3 Report as to Adjustments. In each case of any adjustment or
readjustment in the Warrant Price, the Company at its expense will promptly
compute such adjustment or readjustment in accordance with the terms hereof and
cause its Chief Financial Officer to verify such computation and prepare a
report setting forth such adjustment or readjustment and showing in reasonable
detail the method of calculation thereof and the facts upon which such
adjustment or readjustment is based, including a statement of (a) the number of
shares of Common Stock outstanding or deemed to be outstanding and (b) the
Warrant Price in effect immediately prior to such adjustment or readjustment and
as adjusted and readjusted (if required by section 4.1) on account thereof. The
Company will forthwith mail a copy of each such report to the Holder of this
Warrant. The Company will also keep copies of all such reports at its principal
office, and will cause the same to be available for inspection at such office
during normal business hours by the Holder of this Warrant or any prospective
purchaser of this Warrant designated in writing by the Holder thereof.
5. Notices of Corporate Action: Appraisals. In the event of any
anticipated
(i) taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution on such
securities, or
(ii) Transaction, or
(iii) voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
the Company will mail to the Holder of this Warrant a notice specifying (A) the
date or expected date on which any such record is to be taken for the purpose of
such dividend or
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distribution or (B) the date or expected date on which any such Transaction,
dissolution, liquidation or winding-up is to take place and the time, if any
such time is to be fixed, as of which the holders of record of Common Stock
shall be entitled to exchange their shares of Common Stock for the securities or
other property deliverable in respect of such Transaction, dissolution,
liquidation or winding-up. Such notice shall be mailed at least 10 days prior to
the date therein specified.
6. Reservation of Stock, etc. The Company will at all times
reserve and keep available, solely for issuance and delivery upon the exercise
of this Warrant, the number of shares of Common Stock from time to time issuable
upon the exercise hereof. All such shares of Common Stock shall be duly
authorized and, when issued upon such exercise, shall have been validly issued
and fully paid and nonassessable.
7. The Plan. This Warrant and any Shares issued upon exercise
hereof in all respects shall be subject to and entitled to the benefits of the
Plan.
8. Definitions. As used herein, the following terms have the
following respective meanings:
Business Day: each day other than a Saturday, a Sunday or any
other day on which banking institutions in the City of San Diego, California,
are authorized or obligated by law or executive order to be closed.
Common Stock: the meaning specified in the preamble to this
Warrant.
Holder: Critical Capital Growth Fund, L.P. and transferees of all
or any portion of this Warrant.
The Company: the meaning specified in the preamble to this
Warrant.
Plan: the meaning specified in section 1.
Person: any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other entity.
Securities Act: the Securities Act of 1933, as amended.
Shares: shares of Common Stock issued upon the exercise of this
Warrant and beneficially owned by a Holder.
Transaction: a merger, consolidation, sale of all or substantially
all of the Company's assets, recapitalization of the Common Stock or other
similar transaction, in each case if the previously outstanding Common Stock is
acquired for cash or changed into or exchanged for different securities of the
Company or changed into or exchanged for common stock or other securities of
another corporation or interests in a non-corporate entity or other property
(including cash) or any combination of any of the foregoing.
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Warrant Price: the meaning specified in section 3.
Warrant: the meaning specified in section 1.
9. Amendments and Waivers. Any term of this Warrant may be amended
or modified or the observance of any term of this Warrant may be waived (either
generally or in a particular instance) only with the written consent of the
Company and the Holder hereof.
10. Assignment. The provisions of this Warrant shall be binding
upon and inure to the benefit of the Holder hereof, its successors and assigns
by way of merger, consolidation or operation of law, and ,each third party
transferee of this Warrant or Shares.
11. Exchange of Warrant. Upon surrender for exchange of this
Warrant, properly endorsed, for registration of transfer or for exchange at the
principal office of the Company, the Company at its expense will issue and
deliver to or upon the order of the Holder hereof a new Warrant or Warrants of
like tenor, in the name of such Holder or as such Holder (upon payment by such
Holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Common Stock called for on
the face of this Warrant.
12. Replacement of Shares and Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant or of any certificate representing Shares, and, in
the case of any such loss, theft or destruction of any Warrant or Share
certificate, upon delivery of an indemnity bond in such reasonable amount as the
Company may determine (or, in the case of any Warrant or Share certificate held
by Critical Capital Growth Fund, L.P., of an affidavit of an authorized officer
of such Holder, setting forth the fact of such loss, theft or destruction, which
shall be satisfactory evidence thereof and no further indemnity shall be
required as a condition of the execution and delivery of a new Warrant or Share
certificate), or, in the case of any such mutilation, upon the surrender of such
Warrant or Share certificate for . cancellation to the Company at its principal
office, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant or Share certificate, as the case may be, of like tenor. Any Warrant
or Share certificate in lieu of which any such new Warrant or Share certificate
has been so executed and delivered by the Company shall not be deemed to be an
outstanding Warrant or Share certificate for any purpose.
13. Ownership of Warrants and Shares. The Company may treat the
Person in whose name this Warrant and any Shares issued upon exercise of this
Warrant are registered on the register kept at the principal office of the
Company as the owner and Holder hereof or thereof for all purposes,
notwithstanding any notice to the contrary. This Warrant, if property assigned,
may be exercised by a new Holder without a new Warrant first having been issued.
14. No Rights or Liabilities as Stockholder. Nothing contained in
this Warrant shall be construed as conferring upon the Holder hereof any rights
as a
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stockholder of the Company (except to the extent that Shares are issued to such
Holder pursuant to this Warrant) or as imposing any liabilities on such Holder
to purchase any securities or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors or stockholders of the
Company or otherwise.
15. Notices. All notices and other communications under this
Warrant shall be in writing and shall be mailed by registered or certified mail,
return receipt requested, or faxed, addressed (a) if to the Holder, at the
registered address or to the fax number of such Holder as set forth in the
register kept at the principal office of the Company, and (b) if to the Company,
to the attention of the Secretary at its principal office, provided that the
exercise of any Warrant shall be affected in the manner provided in section 2.
16. Miscellaneous. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE. The headings
in this Warrant are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
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STEAKHOUSE PARTNERS, INC.
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and CEO
Dated: As of December 31, 2003
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FORM OF ASSIGNMENT
(To be signed only upon transfer of the Warrant)
For value received, the undersigned hereby sells, assigns and transfers upon
________________ the rights represented by the within Warrant to purchase
________shares of Common Stock of STEAKHOUSE PARTNERS, INC. to which the within
Warrant relates, and appoints __________________________ Attorney-in-fact to
transfer such rights on the books of STEAKHOUSE PARTNERS, INC. with full power
of substitution in the premises.
Dated:
-------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
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(Address)
Signed in the presence of:
--------------------------------
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