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EXHIBIT 5
THIS WARRANT AND THE SHARES OF COMMON STOCK OF GRILL CONCEPTS, INC. TO BE
ISSUED UPON ANY EXERCISE OF THE WARRANT HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THIS WARRANT IS SUBJECT TO CANCELLATION IF ANY COMMON SHARES OR SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION OF THE SERIES I CONVERTIBLE PREFERRED
STOCK OF GRILL CONCEPTS, INC. SOLD IN CONJUNCTION WITH THE ISSUANCE OF THIS
WARRANT ARE SOLD, TRANSFERRED OR ASSIGNED (OTHER THAN AS PERMITTED BY SECTION 9
HEREOF) PRIOR TO THE WARRANT VESTING DATE.
W97-A 1
WARRANT
to Purchase Shares
of
Common Stock (.00001 par value)
of
GRILL CONCEPTS, INC.
June 20, 1997
This certifies that, for value received, ▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee of
▇▇▇▇▇ Revocable Trust of 1993, ("▇▇▇▇▇") and any subsequent transferee pursuant
to the terms hereof (each, a "Holder"), is entitled to purchase, subject to the
provisions of this Warrant, from Grill Concepts, Inc., a Delaware corporation
(the "Issuer"), at any time or from time to time on or after June 20, 2000
(subject to adjustment pursuant to Section 5(d))(the "Warrant Vesting Date") and
on or before June 20, 2002 (the "Expiration Date"), Seven Hundred Fifty Thousand
(750,000) fully paid and nonassessable shares of common stock, $.00001 par value
(the "Common Stock"), of the Issuer at an exercise price equal to $2.00 per
share, subject to adjustment pursuant to the terms hereunder (the "Exercise
Price") (such shares of Common Stock and other securities issued and issuable
upon exercise of this Warrant, the "Warrant Shares").
Section 1. Exercise of Warrant.
(a) Subject to the provisions hereof, this Warrant may be
exercised, in whole or in part, but not as to a fractional share, at
any time or from time to time on or after the Warrant Vesting Date and
on or before the Expiration Date, by presentation and surrender hereof
to the Issuer at the address which, in accordance with the provisions
of Section 10 hereof, is then effective for notices to the Issuer,
with the Election to Purchase Form annexed hereto as Schedule One,
duly executed
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and accompanied by payment to the Issuer as further set forth below in
this Section 1, for the account of the Issuer, of the Exercise Price
for the number of Warrant Shares specified in such form. If this
Warrant should be exercised in part only, the Issuer shall, upon
surrender of this Warrant, execute and deliver a new Warrant
evidencing the rights of the Holder hereof to purchase the balance of
the Warrant Shares purchasable hereunder. The Issuer shall maintain
at its principal place of business a register for the registration of
this Warrant and registration of transfer of the Warrant. The
Exercise Price for the number of Warrant Shares specified in the
Election to Purchase Form shall be payable (i) in United States
Dollars by certified or official bank check payable to the order of
the Issuer or by wire transfer of immediately available funds to an
account specified by the Issuer for that purpose; or (ii) if permitted
by the Issuer as evidenced by written notice to such effect, by means
of a "cashless exercise." In the event the Issuer permits "cashless
exercise," the Holder may deliver in payment of the Exercise Price (x)
certificates representing shares of Common Stock theretofore owned by
the Holder having a fair market value equal to the Exercise Price; (y)
an election by the Holder to have the Issuer withhold the number of
shares of Common Stock the fair market value, less the Exercise Price,
of which is equal to the aggregate Exercise Price of the Warrant
Shares specified in the Election to Purchase Form, or (z) any
combination of the preceding and cash, equal in value to the full
amount of the Exercise Price. For purposes hereof, the "fair market
value" of shares of Common Stock shall equal the closing sales price
of the Issuer's Common Stock on the last trading day immediately
preceding the date on which the Election to Purchase Form is delivered
to the Issuer along with the Warrant and payment of the Exercise
Price.
(b) Certificates representing Warrant Shares shall bear
the following restrictive legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF EITHER AN EFFECTIVE
REGISTRATION STATEMENT FOR THESE SHARES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
Section 2. Reservation of Shares; Preservation of Rights of Holder.
The Issuer hereby agrees that there shall be reserved for issuance and/or
delivery upon exercise of this Warrant, such number of Warrant Shares as shall
be required for issuance or delivery upon exercise of this Warrant. The
Warrant surrendered upon exercise shall be canceled by the Issuer. After the
Expiration Date no shares of Common Stock shall be subject to reservation in
respect of this Warrant. The Issuer further agrees (i) that it
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will not, by amendment of its Articles of Incorporation or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observation or performance of
any of the covenants, stipulations or conditions to be observed or performed
hereunder by the Issuer, (ii) promptly to take all action as may from time to
time be required in order to permit the Holder to exercise this Warrant and the
Issuer duly and effectively to issue shares of its Common Stock or other
securities as provided herein upon the exercise hereof, and (iii) promptly to
take all action required or provided herein to protect the rights of the Holder
granted hereunder against dilution. Without limiting the generality of the
foregoing, should the Warrant Shares at any time consist in whole or in part of
shares of capital stock having a par value, the Issuer agrees that before
taking any action which would cause an adjustment of the Exercise Price so that
the same would be less than the then par value of such Warrant Shares, the
Issuer shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Issuer may validly and legally issue
fully paid and nonassessable shares of such Common Stock at the Exercise Price
as so adjusted. The Issuer further agrees that it will not establish a par
value for its Common Stock while this Warrant is outstanding in an amount
greater than the Exercise Price.
Section 3. Exchange, Transfer, Assignment or Loss of Warrant. This
Warrant is not transferable or assignable except to members of the immediate
family of ▇▇▇ ▇▇▇▇▇, including trusts and/or family partnerships for the
benefit of said family members. Any attempted transfer of this Warrant, the
Warrant Shares or any new Warrant not in accordance with this Section shall be
null and void, and the Issuer shall not in any way be required to give effect
to such transfer. No transfer of this Warrant shall be effective for any
purpose hereunder until (i) written notice of such transfer and of the name and
address of the transferee has been received by the Issuer, and (ii) the
transferee shall first agree in a writing deposited with the Secretary of the
Issuer to be bound by all the provisions of this Warrant. Upon surrender of
this Warrant to the Issuer by any transferee authorized under the provisions of
this Section 3, the Issuer shall, without charge, execute and deliver a new
Warrant registered in the name of such transferee at the address specified by
such transferee, and this Warrant shall promptly be canceled. The Issuer may
deem and treat the registered holder of any Warrant as the absolute owner
thereof for all purposes, and the Issuer shall not be affected by any notice to
the contrary. Any Warrant if presented by an authorized transferee, may be
exercised by such transferee without prior delivery of a new Warrant issued in
the name of the transferee.
Upon receipt by the Issuer of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Warrant, if mutilated, the Issuer will
execute and deliver a new Warrant of like tenor and date. Any such new Warrant
executed and delivered shall constitute a separate
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contractual obligation on the part of the Issuer, whether or not the Warrant so
lost, stolen destroyed or mutilated shall be at any time enforceable by anyone.
Section 4. Rights of Holder. Neither a Holder nor his transferee by
devise or the laws of descent and distribution or otherwise shall be, or have
any rights or privileges of, a shareholder of the Issuer with respect to any
Warrant Shares, unless and until certificates representing such Warrant Shares
shall have been issued and delivered thereto.
Section 5. Adjustments in Exercise Price and Warrant Shares. The
Exercise Price and Warrant Shares shall be subject to adjustment from time to
time as provided in this Section 5.
(a) If the Issuer is recapitalized through the
subdivision or combination of its outstanding shares of Common Stock
into a larger or smaller number of shares, the number of shares of
Common Stock for which this Warrant may be exercised shall be
increased or reduced, as of the record date for such recapitalization,
in the same proportion as the increase or decrease in the outstanding
shares of Common Stock, and the Exercise Price shall be adjusted so
that the aggregate amount payable for the purchase of all Warrant
Shares issuable hereunder immediately after the record date for such
recapitalization shall equal the aggregate amount so payable
immediately before such record date.
(b) If the Issuer declares a dividend on Common Stock, or
makes a distribution to holders of Common Stock, and such dividend or
distribution is payable or made in Common Stock or securities
convertible into or exchangeable for Common Stock, or rights to
purchase Common Stock or securities convertible into or exchangeable
for Common Stock, the number of shares of Common Stock for which this
Warrant may be exercised shall be increased, as of the record date for
determining which holders of Common Stock shall be entitled to receive
such dividend or distribution, in proportion to the increase in the
number of outstanding shares (and shares of Common Stock issuable upon
conversion of all such securities convertible into common Stock) of
Common Stock as a result of such dividend or distribution, and the
Exercise Price shall be adjusted so that the aggregate amount payable
for the purchase of all the Warrant Shares issuable hereunder
immediately after the record date for such dividend or distribution
shall equal the aggregate amount so payable immediately before such
record date.
(c) If the Issuer declares a dividend on Common Stock
(other than a dividend covered by subsection (b) above) or distributes
to holders of its Common Stock, other than as part of its dissolution
or liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any cash or other of
its assets (other than Common Stock or securities convertible into or
exchangeable
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for Common Stock), the Holder shall receive notice of such event as
set forth in Section 7 below.
(d) In case of any consolidation of the Issuer with, or
merger of the Issuer into, any other corporation (other than a
consolidation or merger in which the Issuer is the continuing
corporation and in which no change occurs in its outstanding Common
Stock), or in case of any sale or transfer of all or substantially all
of the assets of the Issuer, or in the case of any statutory exchange
of securities with another corporation (including any exchange
effected in connection with a merger of a third corporation into the
Issuer, except where the Issuer is the surviving entity and no change
occurs in its outstanding Common Stock), the corporation formed by
such consolidation or the corporation resulting from such merger or
the corporation which shall have acquired such assets or securities of
the Issuer, as the case may be, shall execute and deliver to the
Holder simultaneously therewith a new Warrant, satisfactory in form
and substance to the Holder, together with such other documents as the
Holder may reasonably request, entitling the Holder thereof to receive
upon exercise of such Warrant the kind and amount of shares of stock
and other securities and property receivable upon such consolidation,
merger, sale, transfer, or exchange of securities, or upon the
dissolution following such sale or other transfer, by a holder of the
number of shares of Common Stock purchasable upon exercise of this
Warrant immediately prior to such consolidation, merger, sale,
transfer, or exchange. Such new Warrant shall contain the same basic
other terms and conditions as this Warrant and shall provide for
adjustments which, for events subsequent to the effective date of such
written instrument, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 5. If any
such consolidation, merger, sale, transfer or exchange should occur
prior to the Warrant Vesting Date, the Warrant Vesting Date shall be
adjusted to the date which is one business day prior to the closing of
any such consolidation, merger, sale, transfer or exchange. The above
provisions of this paragraph (d) shall similarly apply to successive
consolidations, mergers, exchanges, sales or other transfers covered
hereby.
(e) If the Issuer shall, at any time before the
expiration of this Warrant dissolve, liquidate or wind up its affairs,
the Holder shall, upon exercise of this Warrant have the right to
receive, in lieu of the shares of Common Stock of the Issuer that the
Holder otherwise would have been entitled to receive, the same kind
and amount of assets as would have been issued, distributed or paid to
the Holder upon any such dissolution, liquidation or winding up with
respect to such shares of Common Stock of the Issuer had the Holder
been the holder of record of such shares of Common Stock receivable
upon exercise of this Warrant on the date for determining those
entitled to receive any such distribution. If any such dissolution,
liquidation or winding up results in any cash
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distribution in excess of the Exercise Price provided by this Warrant
for the shares of Common Stock receivable upon exercise of this
Warrant, the Holder may, at the Holder's option, exercise this Warrant
without making payment of the Exercise Price and, in such case, the
Issuer shall, upon distribution to the Holder, consider the Exercise
Price to have been paid in full and, in making settlement to the
Holder, shall obtain receipt of the Exercise Price by deducting an
amount equal to the Exercise Price for the shares of Common Stock
receivable upon exercise of this Warrant from the amount payable to
the Holder. For purposes of this paragraph, the sale of all or
substantially all of the assets of the Issuer and distribution of the
proceeds thereof to the Issuer's shareholders shall be deemed
liquidation.
(f) If an event occurs which is similar in nature to the
events described in this Section 5, but is not expressly covered
hereby, the Board of Directors of the Issuer shall make or arrange for
an equitable adjustment to the number of Warrant Shares and the
Exercise Price.
(g) The term "Common Stock" shall mean the Common Stock,
$.00001 par value, of the Issuer as the same exists at the date of
issuance of this Warrant or as such stock may be constituted from time
to time, except that for the purpose of this Section 5, the term
"Common Stock" shall include any stock of any class of the Issuer
which has no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Issuer and which is not subject to redemption by
the Issuer.
(h) The Issuer shall retain a firm of independent public
accountants of recognized standing (who may be any such firm regularly
employed by the Issuer) to make any computation required under this
Section 5, and a certificate signed by such firm shall be conclusive
evidence of the correctness of any computation made under this Section
5.
(i) Whenever the number of Warrant Shares or the Exercise
Price shall be adjusted as required by the provisions of this Section
5, the Issuer forthwith shall file in the custody of its secretary or
an assistant secretary, at its principal office, and furnish to each
Holder hereof, a certificate prepared in accordance with paragraph (h)
above, showing the adjusted number of Warrant Shares and the Exercise
Price and setting forth in reasonable detail the circumstances
requiring the adjustments.
(j) Notwithstanding any other provision, this Warrant
shall be binding upon and inure to the benefit of any successors and
assigns of the Issuer.
(k) No adjustment in the Exercise Price in accordance
with the provisions of this Section 5 need be made if such
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adjustment would amount to a change in such Exercise Price of less
than $.01 provided however, that the amount by which any adjustment is
not made by reason of the provisions of this paragraph (k) shall be
carried forward and taken into account at the time of any subsequent
adjustment in the Exercise Price.
(l) If an adjustment is made under this Section 5 and the
event to which the adjustment relates does not occur, then any
adjustments in accordance with this Section 5 shall be readjusted to
the Exercise Price and the number of Warrant Shares which would be in
effect had the earlier adjustment not been made.
Section 6. Taxes on Issue or Transfer of Common Stock and Warrant.
The Issuer shall pay any and all documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of Common Stock or
other securities on the exercise of this Warrant. The Issuer shall not be
required to pay any tax which may be payable in respect of any transfer of this
Warrant or in respect of any transfers involved in the issue or delivery of
shares or the exercise of this Warrant in a name other than that of the Holder
and the person requesting such transfer, issue or delivery shall be responsible
for the payment of any such tax (and the Issuer shall not be required to issue
or deliver said shares until such tax has been paid or provided for).
Section 7. Notice of Adjustment. So long as this Warrant shall be
outstanding, (a) if the Issuer shall propose to pay any dividends or make any
distribution upon the Common Stock, or (b) if the Issuer shall offer generally
to the holder of Common Stock the right to subscribe to or purchase any shares
of any class of Common Stock or securities convertible into Common Stock or any
other similar rights, or (c) if there shall be any proposed capital
reorganization of the Issuer in which the Issuer is not the surviving entity,
recapitalization of the capital stock of the Issuer, consolidation or merger of
the Issuer with or into another corporation, sale, lease or other transfer of
all or substantially all of the property and assets of the Issuer, or voluntary
or involuntary dissolution, liquidation or winding up of the Issuer, or (d) if
the Issuer shall give to its stockholders any notices, report or other
communication respecting any significant or special action or event, then in
such event, the Issuer shall give to the Holder, at least ten days prior to the
relevant date described below (or such shorter period as is reasonably possible
if ten days is not reasonably possible), a notice containing a description of
the proposed action or event and stating the date or expected date on which a
record of the Issuer's stockholders is to be taken for any of the foregoing
purposes, and the date or expected date on which any such dividend,
distribution, subscription, reclassification, reorganization, consolidation,
combination, merger, conveyance, sale, lease or transfer, dissolution,
liquidation or winding up is to take place and the date or expected date, if
any is to be fixed, as of which the holders of Common Stock of record shall be
entitled to exchange their shares of
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Common Stock for securities or other property deliverable upon such event.
Section 8. Registration Rights.
a. Demand Registration Rights. The Issuer covenants and
agrees with the holders of Warrants or Warrant Shares (the "Registrable
Securities") that, subject to the availability of audited financial statements
which would comply with Regulation S-X under the Securities Act and provided
that the Holders have not previously had the option of including all of the
Registrable Securities in one or more Piggyback Registrations pursuant to
Section 8.b., upon written request of the then Holder(s) of at least a majority
of the Warrants or the Registrable Securities, or both, made at any time within
the period commencing three years and ending five years after the date herein
first set forth, the Issuer will file as promptly as practicable and, in any
event, within 60 days after receipt of such written request, at its expense
(other than the fees of counsel and sales commissions for such Holders), no
more than once, a post-effective amendment (the "Amendment") to a registration
statement, or a new registration statement under the Securities Act,
registering or qualifying the Registrable Securities for sale. Within fifteen
(15) days after receiving any such notice, the Issuer shall give notice to the
other Holders of the Registrable Securities, if any, advising that the Issuer
is proceeding with such Amendment or registration statement and offering to
include therein the Registrable Securities of such Holders. The Issuer shall
not be obligated to any such other Holder unless such other Holder shall accept
such offer by notice in writing to the Issuer within ten (10) days thereafter.
The Issuer will use its best efforts, through its officers, directors, auditors
and counsel in all matters necessary or advisable, to file and cause to become
effective such Amendment or registration statement as promptly as practicable
and for a period of nine months thereafter to reflect in the Amendment or
registration statement financial statements which are prepared in accordance
with Section 10(a)(3) of the Securities Act and any facts or events arising
that, individually, or in the aggregate, represent a fundamental and/or
material change in the information set forth in the Amendment or registration
statement to enable any Holders of the Warrants to either sell such Warrants or
to exercise such Warrants and sell Warrant Shares, or to enable any holders of
Warrant Shares to sell such Warrant Shares, during said nine-month period. The
Holders may sell the Registrable Securities pursuant to the Amendment or
registration statement without exercising the Warrants. If any registration
pursuant to this paragraph 8(a) is an underwritten offering, the Holders of a
majority of the Registrable Securities to be included in such registration
shall be entitled to select the underwriter or managing underwriter (in the
case of a syndicated offering) of such offering, subject to the Issuer's
approval which shall not be unreasonably withheld.
b. Piggyback Registration Rights. The Issuer covenants
and agrees with any holder of the Registrable Securities that if, at any time
within the period commencing on the Warrant Vesting
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Date and ending on the Expiration Date, it proposes to file a registration
statement with respect to any class of equity or equity-related security (other
than in connection with an offering to the Issuer's employees or in connection
with an acquisition, merger or similar transaction) under the Securities Act in
a primary registration on behalf of the Issuer and/or in a secondary
registration on behalf of holders of such securities and the registration form
to be used may be used for registration of the Registrable Securities, the
Issuer will give prompt written notice (which, in the case of a registration
statement pursuant to the exercise of demand registration rights shall be
within ten (10) business days after the Issuer's receipt of notice of such
exercise and, in any event, shall be at least 30 days prior to such filing) to
the holders of Registrable Securities at the addresses appearing on the records
of the Issuer of its intention to file a registration statement and will offer
to include in such registration statement all, but not less than 20% of the
Registrable Securities, subject to paragraphs i and ii of this Section 8.b.
such number of Registrable Securities with respect to which the Issuer has
received written requests for inclusion therein within ten (10) days after the
giving of notice by the Issuer. All registrations requested pursuant to this
Section 8.b. are referred to herein as "Piggyback Registrations". All
Piggyback Registrations pursuant to this Section 8 will be made solely at the
Issuer's expense. This Section is not applicable to a registration statement
filed by the Issuer on Forms S-4 or S-8 or any successor forms.
i. Priority on Primary Registrations. If a Piggyback
Registration includes an underwritten primary registration on behalf
of the Issuer and the underwriter(s) for such offering determines in
good faith and advises the Issuer in writing that in its/their opinion
the number of Registrable Securities requested to be included in such
registration exceeds the number that can be sold in such offering
without materially adversely affecting the distribution of such
securities by the Issuer, the Issuer will include in such registration
(A) first, the securities that the Issuer proposes to sell and (B)
second, the Registrable Securities requested to be included in such
registration, apportioned pro rata among the holders of the
Registrable Securities and holders of other securities requesting
registration.
ii. Priority on Secondary Registrations. If a Piggyback
Registration consists only of an underwritten secondary registration
on behalf of holders of securities of the Issuer, and the
underwriter(s) for such offering advises the Issuer in writing that in
its/their opinion the number of Registrable Securities requested to be
included in such registration exceeds the number which can be sold in
such offering without materially adversely affecting the distribution
of such securities, the Issuer will include in such registration (A)
first, the securities requested to be included therein by the holders
requesting such registration, and (B) second, the Registrable
Securities requested to be included in such
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registration and securities of holder of other securities requested to
be included in such registration statement, pro rata among all such
holders on the basis of the number of shares requested to be included
by each such holder, provided, however, the Issuer will use its best
efforts to include not less than 20% of the Registrable Securities.
Notwithstanding the foregoing, if any such underwriter shall determine
in good faith and advise the Issuer in writing that the distribution of the
Registrable Securities requested to be included in the registration
concurrently with the securities being registered by the Issuer would
materially adversely affect the distribution of such securities by the Issuer,
then the holders of such Registrable Securities shall delay their offering and
sale for such period ending on the earliest of (1) 90 days following the
effective date of the Issuer's registration statement, (2) the day upon which
the underwriting syndicate, if any, for such offering shall have been disbanded
or, (3) such date as the Issuer, managing underwriter and holders of
Registrable Securities shall otherwise agree. In the event of such delay, the
Issuer shall file such supplements, post-effective amendments and take any such
other steps as may be necessary to permit such holders to make their proposed
offering and sale for a period of 120 days immediately following the end of any
such period of delay. If any party disapproves the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to the
Issuer, the underwriter, and the holder. Notwithstanding the foregoing, the
Issuer shall not be required to file a registration statement to include shares
pursuant to this Section 8 if independent counsel, reasonably satisfactory to
the Issuer, renders an opinion to the Issuer that the Registrable Securities
proposed to be disposed of may be transferred pursuant to the provisions of
Rule 144 under the Securities Act or otherwise without registration under the
Securities Act.
c. Actions to be taken by the Issuer. In connection
with the registration of Registrable Securities hereunder, the Issuer agrees to
(i) bear the expenses of any registration; provided, however, that in no event
shall the Issuer be obligated to pay (A) any fees and disbursements of special
counsel for holders of Registrable Securities, (B) any underwriters' discount
or commission in respect of such Registrable Securities, and (C) any stock
transfer taxes attributable to the sale of the Registrable Securities; (ii) use
its best efforts to register or qualify the Registrable Securities for offer or
sale under state securities or Blue Sky laws of such jurisdictions in which
such holders shall reasonably request, provided, however, that no qualification
shall be required in any jurisdiction where, as a result thereof, the Issuer
would be subject to service of general process or to taxation as a foreign
corporation doing business in such jurisdiction to which it is not then
subject; and (iii) enter into a cross-indemnity agreement, in customary form,
with each underwriter, if any, and each holder of securities included in such
registration statement.
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d. Action to be Taken by the Holders. The Issuer's
obligations under this Section 8 shall be conditioned upon a timely receipt by
the Issuer in writing of: (i) information as to the terms of such public
offering furnished by or on behalf of each holder of Registrable Securities
intending to make a public offering of his, her or its Registrable Securities,
and (ii) such other information as the Issuer may reasonably require from such
holders, or any underwriter for any of them, for inclusion in such registration
statement.
Section 9. Cancellation. Notwithstanding any other provision
hereof, in the event that any holder of (a) Common Shares issues in conjunction
with the issuance of this Warrant, or (b) shares of Common Stock issuable upon
conversion of the Issuer's Series I Convertible Preferred Stock, shall sell,
assign or transfer such shares of Common Stock, other than transfers or
assignments to members of the immediate family of ▇▇. ▇▇▇ ▇▇▇▇▇, including
trusts and/or family partnerships for the benefit of said family members,
transfers or assignments to executive officers, partners and/or principals of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC (the referenced family members and affiliates of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ are referred to as "Permitted Transferees") or (c) transfers or
assignments consented to in writing by the Issuer, on or before the Warrant
Vesting Date, as adjusted in accordance with Section 5(d), this Warrant shall
be automatically canceled and all rights of the Holder hereof shall terminate
immediately.
Section 10. Notices. All communications hereunder shall be in
writing, and, if sent to the Holder shall be sufficient in all respects if
delivered, sent by registered mail, or by facsimile and confirmed to the Holder
at:
▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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or if to any other Holder, addressed to such Holder at such address as it shall
have specified to the Issuer in writing, or, if sent to the Issuer, shall be
delivered, sent by registered mail or by facsimile and confirmed to the Issuer
at:
Grill Concepts, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice Chairman
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 11. Governing Law. This Warrant shall be governed by, and
interpreted in accordance with, the laws of the State of California.
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Dated: June 20, 1997
GRILL CONCEPTS, INC.
By: [SIG]
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Name: [Name]
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Title: President
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ATTEST:
[SIG]
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary
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Schedule One
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise this Warrant and
to purchase ______ shares of Grill Concepts, Inc. Common Stock issuable upon
the exercise of this Warrant, and requests that certificates for such shares be
issued in the name of:
__________________________________________________________________
(Name)
_________________________________________________________________
(Address)
_________________________________________________________________
(United States Social Security or other taxpayer
identifying number, if applicable)
and, if different from above, be delivered to:
_________________________________________________________________
(Name)
_________________________________________________________________
(Address)
and, if the number of Warrant Shares so purchased are not all of the Warrant
Shares issuable upon exercise of this Warrant, that a Warrant to purchase the
balance of such Warrant Shares be registered in the name of, and delivered to,
the undersigned at the address stated below.
Date:__________________________, 19___________
Name of Registered Owner: ______________________________________
_________________________________________________________________
Address: _______________________________________________________
_________________________________________________________________
Signature: _____________________________________________________
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