WARRANT AGREEMENT
Exhibit
4.5
This
Agreement made as of December 15, 2006 between Restaurant Acquisition Partners,
Inc., a Delaware corporation, with offices at 0000 Xxxxxxxxx Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (“Company”),
and
Continental Stock Transfer & Trust Company, a New York corporation, with
offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Warrant
Agent”).
WHEREAS,
the Company is engaged in a public offering (“Public
Offering”)
of
Units (“Units”)
and,
in connection therewith, has determined to issue and deliver (i) up to 7,666,666
Warrants, including 1,000,000 Warrants that may be issued to Capital Growth
Financial, LLC (the “Underwriter”)
upon
exercise of its over-allotment option (“Public
Warrants”)
to the
public investors, (ii) 210,000 Warrants to the Underwriter or its designees
(“Underwriter’s
Warrants”)
and
(iii) in a concurrent private placement 1,500,000 Warrants to existing
stockholders of the Company (“Insider
Warrants”,
and
together with the Underwriter’s Warrants and the Public Warrants, the
“Warrants”),
each
Warrant evidencing the right of the holder thereof to purchase one share of
common stock, par value $.0001 per share, of the Company’s Common Stock
(“Common
Stock”)
for
$4.50 in the case of the Public Warrants and the Insider Warrants, and $6.00
in
the case of the Underwriter’s Warrants, in each case subject to adjustment as
described herein; and
WHEREAS,
the Company has filed with the Securities and Exchange Commission a Registration
Statement, No. 333-129316 on Form S-1 (“Registration
Statement”)
for the
registration, under the Securities Act of 1933, as amended (“Act”),
of,
among other securities, the Warrants and the Common Stock issuable upon exercise
of the Warrants; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and
the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
and
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants,
the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights and immunities of the Company, the Warrant Agent and the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make
the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of
this
Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1. Appointment
of Warrant Agent.
The
Company hereby appoints the Warrant Agent to act as agent for the Company for
the Warrants, and the Warrant Agent hereby accepts such appointment and agrees
to perform the same in accordance with the terms and conditions set forth in
this Agreement.
2. Warrants.
2.1 Form
of Warrant.
Each
Warrant shall be issued in registered form only, shall be in substantially
the
form of Exhibit A hereto, the provisions of which are incorporated herein and
shall be signed by, or bear the facsimile signature of, the Chairman of the
Board, Chief Executive Officer or President, and Chief Financial Officer,
Secretary or Assistant Secretary of the Company and shall bear a facsimile
of
the Company’s seal. In the event the person whose facsimile signature has been
placed upon any Warrant shall have ceased to serve in the capacity in which
such
person signed the Warrant before such Warrant is issued, it may be issued with
the same effect as if he or she had not ceased to be such at the date of
issuance.
2.2 Effect
of Countersignature.
Unless
and until countersigned by the Warrant Agent pursuant to this Agreement, a
Warrant shall be invalid and of no effect and may not be exercised by the holder
thereof.
2.3 Registration.
2.3.1 Warrant
Register.
The
Warrant Agent shall maintain books (“Warrant
Register”),
for
the registration of original issuance and the registration of transfer of the
Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall
issue and register the Warrants in the names of the respective holders thereof
in such denominations and otherwise in accordance with instructions delivered
to
the Warrant Agent by the Company.
2.3.2 Registered
Holder.
Prior
to due presentment for registration of transfer of any Warrant, the Company
and
the Warrant Agent may deem and treat the person in whose name such Warrant
shall
be registered upon the Warrant Register (“Registered
Holder”),
as the
absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate made by anyone other than the Company or the Warrant Agent), for
the
purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the
contrary.
2.4 Detachability
of Warrants.
The
securities comprising the Units will not be separately transferable until 90
days after the date hereof unless the Underwriter informs the Company of its
decision to allow earlier separate trading, but in no event will the Underwriter
allow separate trading of the securities comprising the Units until the Company
files a Current Report on Form 8-K which includes an audited balance sheet
reflecting the receipt by the Company of the gross proceeds of the Public
Offering including the proceeds received by the Company from the exercise of
the
Underwriter’s over-allotment option, if the over-allotment option is exercised
prior to the filing of the Form 8-K.
2.5 Warrants
and Underwriter’s Warrants.
The
Underwriter’s Warrants and the Insider Warrants shall have the same terms and be
in the same form as the Public Warrants except that the exercise price of the
Underwriter’s Warrants shall be $6.00 per whole share, subject to the
adjustments provided in the last sentence of Section 3.1 and Section 4 hereof,
and the Underwriter’s Warrants and the Insider Warrants will have a “cashless
exercise” provision.
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3. Terms
and Exercise of Warrants.
3.1 Warrant
Price.
Each
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Warrant and of this Warrant
Agreement, to purchase from the Company the number of shares of Common Stock
stated therein, at a price of $4.50 per whole share in the case of Public
Warrants and the Insider Warrants and $6.00 per whole share in the case of
Underwriter’s Warrants, subject in each case to the adjustments provided in the
last sentence of Section 3.1 and Section 4 hereof. The term “Warrant
Price”
as used
in this Warrant Agreement refers to the price per share at which Common Stock
may be purchased at the time a Warrant is exercised. The Company in its sole
discretion may lower the Warrant Price at any time prior to the Expiration
Date;
provided, however, that any change in the Warrant Price must apply equally
to
all of the Warrants.
3.2 Duration
of Warrants.
A
Warrant may be exercised only during the period (“Exercise
Period”)
commencing on the later of (a) the consummation by the Company of a merger,
capital stock exchange, asset acquisition or other similar business combination
(as described more fully in the Registration Statement) and (b) December 20,
2007, and terminating at 5:00 p.m., New York City local time on the earlier
to
occur of (i) December 20, 2010 and (ii) the date fixed for redemption of the
Warrants as provided in Section 6 of this Agreement (“Expiration
Date”).
Except
with respect to the right to receive the Redemption Price (as set forth in
Section 6 hereunder), each Warrant not exercised on or before the Expiration
Date shall become void, and all rights thereunder and all rights in respect
thereof under this Agreement shall cease at the close of business on the
Expiration Date. The Company in its sole discretion may extend the duration
of
the Warrants by delaying the Expiration Date; provided, however, that any
extension of the duration of the Warrants must apply equally to all of the
Warrants.
3.3 Exercise
of Warrants.
3.3.1 Payment.
Subject
to the provisions of the Warrant and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the Borough of Manhattan, City and State
of New York, with the exercise form, as set forth in the Warrant, duly executed,
and by paying in full, in lawful money of the United States, in cash, good
certified check or good bank draft payable to the order of the Company (or
as
otherwise agreed to by the Company), the Warrant Price for each full share
of
Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock.
Solely
in
the case of the Underwriter’s Warrants and the Insider Warrants, in lieu of the
payment of the Warrant Price in cash, the registered holder of the Warrant
shall
have the right (but not the obligation), during the Exercise Period, to require
the Company to convert any exercisable but unexercised portion of the Warrant
(the “Conversion
Right”),
in
whole but not in part, into the shares of Common Stock as provided for in this
subsection (the “Net
Exercise Shares”).
Upon
exercise of the Conversion Right, the Company shall deliver to the registered
holder thereof (without payment in cash of the Warrant Price) that number of
Net
Exercise Shares equal to (i) the number of shares of Common Stock issuable
upon
exercise of the portion of the Warrant being converted, multiplied by (ii)
the
quotient obtained by dividing (x) the value of the Warrant (on a per share
basis) at the time the Conversion Right is exercised (determined by subtracting
the Warrant Price (as adjusted) from the average Current Market Price (as
defined below) for the 10 trading days ending on the business day prior to
date
of notice of exercise of the Conversion Right is sent to the Company for the
shares of Common Stock issuable upon exercise of the Warrant immediately prior
to the exercise of the Conversion Right) by (y) the average Current Market
Price
of one share of Common Stock for the 10 trading days ending on the business
day
prior to the date of notice of exercise of the Conversion Right is sent to
the
Company, or in the event the Company has called the Warrants for redemption
pursuant to Section 6 hereof, the average Current Market Price of one share
of
Common Stock for the 10 trading days ending on the business day prior to the
date on which the notice of redemption is sent to holders of the Warrant
pursuant to Section 6 hereof. The Conversion Right may be exercised by
surrendering the Warrant at the office of the Warrant Agent, or at the office
of
its successor as Warrant Agent, in the Borough of Manhattan, City and State
of
New York, with the duly executed exercise form, as set forth in the Warrant,
with the cashless exercise section completed, exercising the Conversion Right
and specifying the total number of shares of Common Stock the holder thereof
will purchase pursuant to such Conversion Right. The presentation and surrender
shall be deemed a waiver of the holder’s obligation to pay all or any portion of
the aggregate Warrant Price payable for the shares of Common Stock being issued
upon such exercise of the Warrant. The Warrant (or so much thereof as shall
have
been surrendered for conversion) shall be deemed to have been converted
immediately prior to the close of business on the day of surrender of the
Warrant for conversion in accordance with the foregoing provisions.
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The
“Current Market Price” of a share of Common Stock shall mean (i) if the Common
Stock is listed on a national securities exchange, including the American Stock
Exchange, or quoted on the Nasdaq National Market, Nasdaq SmallCap Market or
NASD OTC Bulletin Board (or successor trading market), the last sale price
of
the Common Stock in the principal trading market for the Common Stock as
reported by the exchange, Nasdaq or the NASD, as the case may be; (ii) if the
Common Stock is not listed on a national securities exchange or quoted on the
Nasdaq National Market, Nasdaq SmallCap Market or the NASD OTC Bulletin Board
(or successor trading market), but is traded in the residual over-the-counter
market, the closing bid price for the Common Stock on the last trading day
preceding the date in question for which such quotations are reported by the
Pink Sheets, LLC or similar publisher of such quotations; and (iii) if the
fair
market value of the Common Stock cannot be determined pursuant to clause (i)
or
(ii) above, such price as the Board of Directors of the Company shall determine,
in good faith.
3.3.2 Issuance
of Common Stock.
As soon
as practicable after the exercise of any Warrant and the clearance of the funds
in payment of the Warrant Price, the Company shall issue to the registered
holder of such Warrant for the number of full shares of Common Stock to which
he
or she is entitled, registered in such name or names as may be directed by
him,
her or it, and if such Warrant shall not have been exercised in full, a new
countersigned Warrant for the number of shares as to which such Warrant shall
not have been exercised. Notwithstanding the foregoing, the Company may not
issue or deliver any securities pursuant to the exercise of a Warrant and may
not settle any Warrant exercise unless a registration statement under the Act
with respect to the Common Stock underlying the Public Warrants is effective.
In
the event that a registration statement with respect to the Common Stock
underlying the Public Warrants is not effective under the Act, no holder of
any
Warrant shall be entitled to exercise such Warrant and such Warrant may have
no
value and expire worthless. In no event will the Company net cash settle the
warrant exercise. Warrants may not be exercised by, or securities issued to,
any
registered holder in any state in which such exercise would be unlawful. In
the
event that a registration statement is not effective for the exercised Public
Warrants, the purchaser of a unit containing such Warrant will have paid the
full purchase price for the unit solely for the shares included in such
unit.
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3.3.3 Valid
Issuance.
All
shares of Common Stock issued upon the proper exercise of a Warrant in
conformity with this Agreement shall be validly issued, fully paid and
nonassessable.
3.3.4 Date
of Issuance.
Each
person in whose name any such shares of Common Stock are issued shall for all
purposes be deemed to have become the holder of record of such shares on the
date on which the Warrant was surrendered and payment of the Warrant Price
was
made, irrespective of the date of issuance of such shares, except that, if
the
date of such surrender and payment is a date when the stock transfer books
of
the Company are closed, such person shall be deemed to have become the holder
of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
4. Adjustments.
4.1 Stock
Dividends—Split-Ups.
If
after the date hereof, and subject to the provisions of Section 4.6 below,
the
number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock, or by a split-up of shares of Common Stock
or
other similar event, then, on the effective date of such stock dividend,
split-up or similar event, the number of shares of Common Stock issuable on
exercise of each Warrant shall be increased in proportion to such increase
in
outstanding shares of Common Stock.
4.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 4.6, the number
of outstanding shares of Common Stock is decreased by a consolidation,
combination, reverse stock split or reclassification of shares of Common Stock
or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the number
of shares of Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of Common
Stock.
4.3 Adjustments
in Exercise Price.
Whenever the number of shares of Common Stock purchasable upon the exercise
of
the Warrants is adjusted, as provided in Section 4.1 and 4.2 above, the Warrant
Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Common Stock purchasable upon the exercise
of
the Warrants immediately prior to such adjustment, and (y) the denominator
of
which shall be the number of shares of Common Stock so purchasable immediately
thereafter.
4.4 Replacement
of Securities upon Reorganization, etc. In
case
of any reclassification or reorganization of the outstanding shares of Common
Stock (other than a change covered by Section 4.1 or 4.2 hereof or that solely
affects the par value of such shares of Common Stock), or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the assets or other property
of
the Company as an entirety or substantially as an entirety in connection with
which the Company is dissolved, the Warrant holders shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise
of
the rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in shares
of
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of
this
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other
transfers.
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4.5 Notices
of Changes in Warrant.
Upon
every adjustment of the Warrant Price or the number of shares issuable upon
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written
notice to the Warrant holder, at the last address set forth for such holder
in
the warrant register, of the record date or the effective date of the event.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such event.
4.6 No
Fractional Shares.
Notwithstanding any provision contained in this Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4,
the
holder of any Warrant would be entitled, upon the exercise of such Warrant,
to
receive a fractional interest in a share, the Company shall, upon such exercise,
round up or down to the nearest whole number the number of the shares of Common
Stock to be issued to the Warrant holder.
4.7 Form
of Warrant.
The
form of Warrant need not be changed because of any adjustment pursuant to this
Section 4, and Warrants issued after such adjustment may state the same Warrant
Price and the same number of shares as is stated in the Warrants initially
issued pursuant to this Agreement. However, the Company may at any time in
its
sole discretion make any change in the form of Warrant that the Company may
deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for
an
outstanding Warrant or otherwise, may be in the form as so changed.
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5. Transfer
and Exchange of Warrants.
5.1 Registration
of Transfer.
The
Warrant Agent shall register the transfer, from time to time, of any outstanding
Warrant upon the Warrant Register, upon surrender of such Warrant for transfer,
properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued and the
old
Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled
shall
be delivered by the Warrant Agent to the Company from time to time upon
request.
5.2 Procedure
for Surrender of Warrants.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and thereupon the Warrant Agent shall issue
in
exchange therefor one or more new Warrants as requested by the registered holder
of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, that in the event that a Warrant surrendered for
transfer bears a restrictive legend, the Warrant Agent shall not cancel such
Warrant and issue new Warrants in exchange therefor until the Warrant Agent
has
received an opinion of counsel for the Company stating that such transfer may
be
made and indicating whether the new Warrants must also bear a restrictive
legend.
5.3 Fractional
Warrants.
The
Warrant Agent shall not be required to effect any registration of transfer
or
exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.
5.4 Service
Charges.
No
service charge shall be made for any exchange or registration of transfer of
Warrants.
5.5 Warrant
Execution and Countersignature.
The
Warrant Agent is hereby authorized to countersign and to deliver, in accordance
with the terms of this Agreement, the Warrants required to be issued pursuant
to
the provisions of this Section 5, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
6. Redemption.
6.1 Redemption.
Subject
to Section 6.4 hereof, the outstanding Warrants may be redeemed (in whole and
not in part), at the option of the Company, at any time after, and from time
to
time, they become exercisable and prior to their expiration, at the office
of
the Warrant Agent, upon the notice referred to in Section 6.2, at the price
of
$.01 per Warrant (“Redemption
Price”),
provided that the last sales price of the Common Stock has been at least $8.50
per share, on each of twenty (20) trading days within any thirty (30) trading
day period ending on the third business day prior to the date on which notice
of
redemption is given. The provisions of this Section 6.1 may not be modified,
amended or deleted without the prior written consent of the
Underwriter.
6.2 Date
Fixed for, and Notice of, Redemption.
In the
event the Company shall elect to redeem all of the Warrants, the Company shall
fix a date for the redemption (the “Redemption
Date”).
Notice of redemption shall be mailed by first class mail, postage prepaid,
by
the Company not less than 30 days prior to the date fixed for redemption to
the
registered holders of the Warrants to be redeemed at their last addresses as
they shall appear on the registration books. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given whether
or not the registered holder received such notice.
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6.3 Exercise
After Notice of Redemption.
The
Warrants may be exercised in accordance with Section 3 of this Agreement at
any
time after notice of redemption shall have been given by the Company pursuant
to
Section 6.2 hereof and prior to the Redemption Date. On and after the Redemption
Date, the record holder of the Warrants shall have no further rights except
to
receive, upon surrender of the Warrants, the Redemption Price.
6.4 Redemption
of Purchase Option.
Notwithstanding anything to the contrary contained herein or in that certain
Unit Purchase Option, to be dated as of December 20, 2006 (the “Unit
Purchase Option”),
if
the Company shall elect to redeem all of the Warrants, (i) the Underwriter’s
option to purchase up to one hundred five thousand (105,000) Units (as described
in more detail in the Unit Purchase Option), if not earlier exercised in full,
shall be automatically exercised immediately prior to a redemption of the
Company’s outstanding Warrants pursuant to Section 6.1 hereof and (ii) each
Warrant that is part of a Unit issued thereunder upon such automatic conversion
shall be redeemed by the Company as part of such redemption for the Redemption
Price.
7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1 No
Rights as Stockholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or
to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
7.2 Lost,
Stolen, Mutilated, or Destroyed Warrants.
If any
Warrant is lost, stolen, mutilated or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include
the
surrender thereof), issue a new Warrant of like denomination, tenor and date
as
the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any
time
enforceable by anyone.
7.3 Reservation
of Common Stock.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued shares of Common Stock that will be sufficient to permit the
exercise in full of all outstanding Warrants issued pursuant to this
Agreement.
7.4 Registration
of Common Stock.
The
Company agrees that prior to the commencement of the Exercise Period, it shall
file with the Securities and Exchange Commission a post-effective amendment
to
the Registration Statement, or a new registration statement, for the
registration, under the Act, of, and it shall take such action as is necessary
to qualify for sale, in those states in which the Warrants were initially
offered by the Company, the Common Stock issuable upon exercise of the Warrants.
In either case, the Company will use its best efforts to cause the same to
become effective and to maintain the effectiveness of such registration
statement until the expiration or redemption of the Warrants in accordance
with
the provisions of this Agreement. The provisions of this Section 7.4 may not
be
modified, amended or deleted without the prior written consent of the
Underwriter.
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8. Concerning
the Warrant Agent and Other Matters.
8.1 Payment
of Taxes.
The
Company will from time to time promptly pay all taxes and charges that may
be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.2 Resignation,
Consolidation, or Merger of Warrant Agent.
8.2.1 Appointment
of Successor Warrant Agent.
The
Warrant Agent, or any successor to it hereafter appointed, may resign its duties
and be discharged from all further duties and liabilities hereunder after giving
sixty (60) days’ notice in writing to the Company. If the office of the Warrant
Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint in writing a successor Warrant Agent in place of the
Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such resignation
or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall,
with
such notice, submit his Warrant for inspection by the Company), then the holder
of any Warrant may apply to the Supreme Court of the State of New York for
the
County of New York for the appointment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a corporation or other entity organized and existing
under the laws of a state of the United States, in good standing and authorized
under such laws to exercise corporate trust powers and be subject to supervision
or examination by federal or state authority. After appointment, any successor
Warrant Agent shall be vested with all the authority, powers, rights,
immunities, duties, and obligations of its predecessor Warrant Agent with like
effect as if originally named as Warrant Agent hereunder, without any further
act or deed; but if for any reason it becomes necessary or appropriate, the
predecessor Warrant Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Warrant Agent all the
authority, powers, and rights of such predecessor Warrant Agent hereunder;
and
upon request of any successor Warrant Agent the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for more fully
and
effectually vesting in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties, and obligations.
8.2.2 Notice
of Successor Warrant Agent.
In the
event a successor Warrant Agent shall be appointed, the Company shall give
notice thereof to the predecessor Warrant Agent and the transfer agent for
the
Common Stock not later than the effective date of any such
appointment.
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8.2.3 Merger
or Consolidation of Warrant Agent.
Any
corporation into which the Warrant Agent may be merged or with which it may
be
consolidated or any corporation resulting from any merger or consolidation
to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.
8.3 Fees
and Expenses of Warrant Agent.
8.3.1 Remuneration.
The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand
for all expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.
8.3.2 Further
Assurances.
The
Company agrees to perform, execute, acknowledge, and deliver or cause to be
performed, executed, acknowledged, and delivered all such further and other
acts, instruments, and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this
Agreement.
8.4 Liability
of Warrant Agent.
8.4.1 Reliance
on Company Statement.
Whenever in the performance of its duties under this Warrant Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter
be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the Chief Executive Officer, President
or
Chairman of the Board of the Company and delivered to the Warrant Agent. The
Warrant Agent may rely upon such statement for any action taken or suffered
in
good faith by it pursuant to the provisions of this Agreement.
8.4.2 Indemnity.
The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Agreement except as a result of the Warrant Agent’s
negligence, willful misconduct or bad faith.
8.4.3 Exclusions.
The
Warrant Agent shall have no responsibility with respect to the validity of
this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by
the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under
the
provisions of Section 4 hereof or be responsible for the manner, method, or
amount of any such adjustment or the ascertaining of the existence of facts
that
would require any such adjustment; nor shall it by any act hereunder be deemed
to make any representation or warranty as to the authorization or reservation
of
any shares of Common Stock to be issued pursuant to this Agreement or any
Warrant or as to whether any shares of Common Stock will when issued be valid
and fully paid and nonassessable.
10
8.5 Acceptance
of Agency.
The
Warrant Agent hereby accepts the agency established by this Agreement and agrees
to perform the same upon the terms and conditions herein set forth and among
other things, shall account promptly to the Company with respect to Warrants
exercised and concurrently account for, and pay to the Company, all moneys
received by the Warrant Agent for the purchase of shares of the Company’s Common
Stock through the exercise of Warrants.
9. Miscellaneous
Provisions.
9.1 Successors.
All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns.
9.2 Notices.
Any
notice, statement or demand authorized by this Warrant Agreement to be given
or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as
follows:
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxxxxxx X. Xxxxxx
With
a
copy to:
Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxxx, Xx., Esq.
Any
notice, statement or demand authorized by this Agreement to be given or made
by
the holder of any Warrant or by the Company to or on the Warrant Agent shall
be
sufficiently given when so delivered if by hand or overnight delivery or if
sent
by certified mail or private courier service within five days after deposit
of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxx
with
a
copy in each case to:
Capital
Growth Financial, LLC
000
XX
Xxxxxx Xxxx., Xxxxx 000
Xxxx
Xxxxx, Xxxxxxx 00000
Attn:
Xxxx X. Xxxxxx
11
and:
Xxxxxxxxx
Traurig, P.A.
000
Xxxxx
Xxxxxxx Xxxxx
Xxxxx
000
Xxxx
Xxxx
Xxxx
Xxxxx, XX 00000
Attn:
Xxxxxx X. Xxxxx, Esq.
9.3 Applicable
law.
The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York
or the United States District Court for the Southern District of New York,
and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company hereby waives any objection to such exclusive jurisdiction and
that
such courts represent an inconvenience forum. Any such process or summons to
be
served upon the Company may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 9.2 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the Company
in any action, proceeding or claim.
9.4 Persons
Having Rights under this Agreement.
Nothing
in this Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the parties hereto and the registered
holders of the Warrants and, for the purposes of Sections 2.5, 3.1, 3.2, 6.1,
6.4, 7.4 and 9.2 hereof, the Underwriter, any right, remedy or claim under
or by
reason of this Warrant Agreement or of any covenant, condition, stipulation,
promise, or agreement hereof. The Underwriter shall be deemed to be a third
party beneficiary of this Agreement with respect to Sections 2.5, 3.1, 3.2,
6.1,
6.4, 7.4 and 9.2 hereof. All covenants, conditions, stipulations, promises,
and
agreements contained in this Warrant Agreement shall be for the sole and
exclusive benefit of the parties hereto (and the Underwriter with respect to
the
Sections 2.5, 3.1, 3.2, 6.1, 6.4, 7.4 and 9.2 hereof) and their successors
and
assigns and of the registered holders of the Warrants.
9.5 Examination
of the Warrant Agreement.
A copy
of this Agreement shall be available at all reasonable times at the office
of
the Warrant Agent, for inspection by the Underwriter or by the registered holder
of any Warrant. The Warrant Agent may require any such holder to submit his
Warrant for inspection by it.
9.6 Counterparts.
This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
12
9.7 Effect
of Headings.
The
Section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation thereof.
[Remainder
of this page intentionally left blank; signature page follows.]
13
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
| RESTAURANT ACQUISITION PARTNERS, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |
|
Name: Xxxxxxxxxxx X. Xxxxxx |
||
| Title: Chief Executive Officer and President | ||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxx | |
|
Name: Xxxxx Xxxxxxxx |
||
| Title: Vice President | ||
[Signature
Page to Warrant Agreement]
Exhibit
A
|
NUMBER
W-
|
WARRANTS
|
|
[SYMBOL]
|
THIS
WARRANT WILL BE VOID
IF
REDEEMED OR NOT
EXERCISED
PRIOR TO
5:00 P.M.
NEW YORK CITY TIME
ON
DECEMBER 20, 2010
RESTAURANT
ACQUISITION
PARTNERS, INC.
CUSIP
761250
11 7
WARRANT
THIS
CERTIFIES THAT, for value received ____________________________ is the
registered holder of a Warrant or Warrants expiring December 20, 2010 or earlier
upon redemption (the "Warrant") to purchase one fully paid and non-assessable
share of Common Stock, par value $.0001 per share ("Shares"), of Restaurant
Acquisition Partners, Inc., a Delaware corporation (the "Company"), for
each Warrant evidenced by this Warrant Certificate. The Warrant entitles the
holder thereof to purchase from the Company, commencing on the later of
(i) the consummation by the Company of a merger, capital stock exchange,
asset acquisition or other similar business combination and (ii) December
20, 2007, such number of Shares of the Company at the price of $4.50 per share,
upon surrender of this Warrant Certificate accompanied by the annexed duly
executed exercise form and payment of the warrant price at the office or agency
of the Warrant Agent, Continental Stock Transfer & Trust Company (such
payment to be made by check made payable to the Warrant Agent), but only subject
to the conditions set forth herein and in the Warrant Agreement between the
Company and Continental Stock Transfer & Trust Company (the "Warrant
Agreement"). [Solely
in the Warrants included in the Units issuable pursuant to the Underwriters
Option and in the Insider Warrants sold in the concurrent Private
Placement]:
In lieu
of exercising the Warrant pursuant to the immediately preceding sentence, the
Warrant holder shall have the right to require the Company to convert the
Warrant, in whole but not in part, into Shares, by surrendering this Warrant
Certificate accompanied by the annexed duly executed exercise form, with the
cashless exercise section completed, to the office or agency of the Warrant
Agent, subject to the conditions set forth herein and in the Warrant Agreement.]
The Warrant Agreement provides that upon the occurrence of certain events,
the
Warrant Price and the number of Shares purchasable hereunder, set forth on
the
face hereof, may, subject to certain conditions, be adjusted. The term Warrant
Price as used in this Warrant Certificate refers to the price per Share at
which
Shares may be purchased at the time the Warrant is exercised.
No
fraction of a Share will be issued upon any exercise of a Warrant. If the holder
of a Warrant would be entitled to receive a fraction of a Share upon any
exercise of a Warrant, the Company shall, upon such exercise, round up or down
to the nearest whole number the number of Shares to be issued to such
holder.
[Specimen
Warrant Certificate]
Upon
any
exercise of the Warrant for less than the total number of full Shares provided
for herein, there shall be issued to the registered holder hereof or his
assignee a new Warrant Certificate covering the number of Shares for which
the
Warrant has not been exercised.
Warrant
Certificates, when surrendered at the office or agency of the Warrant Agent
by
the registered holder hereof in person or by attorney duly authorized in
writing, may be exchanged in the manner and subject to the limitations provided
in the Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor and evidencing in
the
aggregate a like number of Warrants.
Upon
due
presentment for registration of transfer of the Warrant Certificate at the
office or agency of the Warrant Agent, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any applicable tax or other governmental
charge.
The
Company and the Warrant Agent may deem and treat the registered holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the registered holder and for all other
purposes, and neither the Company nor the Warrant Agent shall be affected by
any
notice to the contrary.
This
Warrant does not entitle the registered holder to any of the rights of a
stockholder of the Company.
The
Company reserves the right to redeem the Warrant, in whole but not in part,
at
any time prior to its exercise, with a notice of redemption in writing to the
holders of record of the Warrant, giving 30 days' notice of such redemption
at any time after the Warrant becomes exercisable if the last sale price of
the
Shares has been at least $8.50 per share on each of 20 trading days within
any
30 trading day period ending on the third business day prior to the date on
which notice of such redemption is given. The redemption price of the Warrants
is to be $.01 per Warrant. Any Warrant either not exercised or tendered back
to
the Company by the end of the date specified in the notice of redemption shall
be canceled on the books of the Company and have no further value except for
the
$.01 redemption price.
| By: | By: | ||
|
President
|
Secretary
|
[Specimen
Warrant Certificate]
EXERCISE
FORM
Form
to
be used to exercise Warrant:
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Date:
__________, 200__
The
undersigned hereby elects irrevocably to exercise all of the within Warrants
and
to purchase shares of Common Stock of Restaurant Acquisition Partners, Inc.
and hereby makes payment of $_______ (at the rate of $______ per share of Common
Stock) in payment of the Warrant price pursuant thereto. Please issue the Common
Stock as to which the within Warrants are exercised in accordance with the
instructions given below.
[Solely
in the Warrants included in the Units issuable pursuant to the Underwriters
Option and in the Insider Warrants sold in the concurrent Private
Placement:
or
The
undersigned hereby elects irrevocably to convert its right to purchase
__________ shares of Common Stock purchasable under the within Warrants by
surrender of the unexercised portion of the attached Warrants (with a "Value"
of
$_____ based on a "Current Market Price" of $ less the exercise price of
$______). Please issue the shares of Common Stock as to which the within
Warrants are exercised in accordance with the instructions given
below.]
| Signature | |||
|
Signature
Guaranteed
|
|||
|
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
|
||
|
Name
|
|
|
|
(Print
in Block Letters)
|
||
|
Address
|
||
|
Social
Security or Tax Identification Number
|
||
NOTICE:
THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE WITHIN WARRANT CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION
OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP ON
A
REGISTERED NATIONAL SECURITIES EXCHANGE.
[Specimen
Warrant Certificate]
ASSIGNMENT
To
Be
Executed by the Registered Holder in Order to Assign Warrants
For
Value
Received,______________ hereby sell, assign, and transfer unto
____________________________________________________________
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
____________________________________________________________
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
|
and
be delivered to
|
|
|
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
|
of
the
Warrants represented by this Warrant Certificate, and hereby irrevocably
constitute and appoint Attorney to transfer this Warrant Certificate on the
books of the Company, with full power of substitution in the
premises.
| Dated: | ||
|
(SIGNATURE)
|
||
THE
SIGNATURE TO THE ASSIGNMENT OF THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME
WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED
BY A
COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE AMERICAN STOCK
EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR CHICAGO STOCK
EXCHANGE.
[Specimen
Warrant Certificate]
