THIRD AMENDED AND RESTATED WARRANT AGREEMENT
THIS THIRD AMENDED AND RESTATED WARRANT AGREEMENT (this
"Agreement"), dated effective as of February 10, 1997, is between
GOOD TIMES RESTAURANTS INC., a Nevada corporation (the "Company")
and AMERICAN SECURITIES TRANSFER & TRUST, INCORPORATED, an
independent stock transfer company (called, as well as any
successor acting as warrant agent under this Agreement, the
"Warrant Agent"),
RECITALS:
A. This Agreement supersedes the Warrant Agreement made
effective June 21, 1990, the Amended and Restated Warrant Agreement
made effective June 15, 1992, and the Second Amended and Restated
Warrant Agreement dated as of March 8, 1994, between the Company
and the Warrant Agent.
B. The Company has previously issued warrants for the
purchase of shares of Common Stock, for which the Warrant Agent
presently serves as registrar and warrant agent, as follows:
1. 87,513 warrants (the "S-3 Warrants") for the
purchase of up to an aggregate of 87,513 shares of the
Company's common stock, par value $.001 per share (the
"Common Stock") pursuant to a Form S-3 Registration
Statement, as thereafter amended (Registration No. 33-73062),
filed with the Securities and Exchange Commission
on December 20, 1993;
2. 720,000 warrants (the "1992 Warrants") for the
purchase of up to an aggregate of 720,000 shares of
Common Stock issued pursuant to the Company's public
offering of its securities in June 1992;
3. 230,000 warrants (the "1990 Warrants") for the
purchase of up to an aggregate of 230,000 shares of
Common Stock issued pursuant to the Company's public
offering of its securities in 1990; and
4. 37,500 warrants (the "1989 Warrants") for the
purchase of up to an aggregate of 37,500 shares of Common
Stock issued pursuant to the Company's public offering of
its securities in 1989.
The S-3 Warrants, 1992 Warrants, 1990 Warrants and 1989 Warrants
may be collectively referred to herein as a "Warrant" or the
"Warrants".
C. The Company desires to enter into this Agreement to
establish the terms and conditions of the Warrants, to set forth
the rights of the registered holders of the Warrants (the "Warrant
Holders"), and to provide for the issuance, transfer and exercise
of the Warrants and other matters; and
D. The Company desires the Warrant Agent to act on behalf of
the Company and the Warrant Agent is willing so to act under the
terms of this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual agreements
stated in this Agreement, the Company and the Warrant Agent agree:
Section 1. Warrants. Subject to the provisions of this
Agreement, a Warrant shall entitle the Warrant Holder by exercising
such Warrant to purchase from the Company one share of Common Stock
at a price of $2.00 per Share for each Warrant (called the
"Exercise Price"). The Warrants will be exercisable at any time
and will expire at 3:00 p.m., Denver, Colorado time, on February
10, 1999, or, if such day in Denver, Colorado shall be either a
holiday or a day on which banks are authorized or obligated by law
to be closed, then at 3:00 p.m., Denver, Colorado time, on the next
following day which in Denver, Colorado, shall not be either a
holiday or a day on which banks are authorized or obligated by law
to be closed (the actual time of expiration of the Warrants being
called the "Expiration Date"). At the time of expiration of the
Warrants, any unexercised Warrants will become void and all rights
of the Warrant Holders under the terms of the Warrant Certificates,
this Agreement and otherwise shall cease.
Section 2. Warrant Certificates. The Warrant Certificates
shall be in registered form only. The text of the Warrant
Certificates, including the forms of exercise and assignment to be
printed on the reverse side of the Warrant Certificate, shall be
substantially in the form set forth in Exhibit A attached to this
Agreement. Warrant Certificates shall be signed by, or shall bear
the facsimile signatures of the President or a Vice President of
the Company and the Secretary or an Assistant Secretary of the
Company, and shall bear a facsimile of the Company's seal. If any
person whose facsimile signature has been placed upon any Warrant
Certificates as the signature of an officer of the Company shall
have ceased to be such officer before such Warrant Certificate is
countersigned, issued and delivered, such Warrant Certificate may
be countersigned, issued and delivered with the same effect as if
such person had not ceased to be such officer. Any Warrant
Certificate may be signed by, or may bear the facsimile signature
of, any person who at the actual date of the preparation of such
Warrant Certificate shall be a proper officer of the Company to
sign such Warrant Certificate even though such person was not such
an officer upon the date of this Agreement.
Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Agent is hereby authorized to
countersign and deliver to, or in accordance with the instructions
of, any Warrant Holder any Warrant Certificate which is properly
issued under the terms of this Agreement.
Section 3. Registration of Transfers and Exchanges.
a. The Warrant Agent shall from time to time
register the transfer of any outstanding Warrant Certificate upon
records to be maintained by the Warrant Agent for such purpose upon
surrender of such Warrant Certificate to the Warrant Agent for
transfer, accompanied by appropriate instruments of transfer in
form satisfactory to the Company and the Warrant Agent and duly
executed by the Warrant Holder or a duly authorized attorney. Upon
any such registration of transfer, a new Warrant Certificate shall
be issued in the name of and to the transferee and the surrendered
Warrant Certificate shall be cancelled.
b. Any outstanding Warrant Certificate may be
surrendered by the Warrant Holder to the Warrant Agent in exchange
for other Warrant Certificates of like tenor and representing in
the aggregate the same number of Warrants. Warrant Certificates so
surrendered for exchange shall be cancelled.
Section 4. Exercise of Warrants.
a. Warrants may be exercised at any time on or
before the Expiration Date. Warrants shall be exercised by the
Warrant Holder by surrendering to the Warrant Agent the Warrant
Certificate evidencing such Warrants with the exercise form on the
reverse of such Warrant Certificate duly completed and executed and
paying to the Warrant Agent, in lawful money of the United States
of America in cash or by good check (either certified or a bank
cashier's check) payable to the order of the Company, the Exercise
Price for the Shares to be purchased. In order for the exercise of
a Warrant to be valid, a properly executed Warrant with the
appropriate payment must be received by the Warrant Agent prior to
the Expiration Date.
b. Upon receipt of a Warrant Certificate with the
exercise form thereon duly executed together with payment in full
of the Exercise Price for the Shares for which Warrants are then
being exercised, the Warrant Agent shall requisition from any
transfer agent for the Shares, and upon receipt shall make delivery
of, certificates evidencing the total number of whole Shares for
which Warrants are then being exercised in such names and
denomination as are required for delivery to, or in accordance with
the instructions of, the Warrant Holder. The Warrant Agent shall
promptly deliver to the Company cash or checks received in payment
of the Exercise price, and shall establish such procedures as the
Company reasonably requests to assure collection of such payments
before delivering such certificates. Such certificates for the
Shares shall be deemed to be issued, and the person to whom such
Shares are issued of record shall be deemed to have become a
holder, of record of such Shares, as of the date of the surrender
of such Warrant Certificate and payment of the Exercise Price,
whichever shall last occur, provided that if the books of the
Company with respect to the Shares shall be closed as of such date,
the certificates for such Shares shall be deemed to be issued, and
the person to whom such Shares are issued of record shall be deemed
to have become a holder of record of such Shares, as of the date on
which such books shall next be open (whether before, on or after
the Expiration Date).
c. If less than all of the Warrants evidenced by
a Warrant Certificate are exercised upon a single occasion, a new
Warrant Certificate for the balance of the Warrants not so
exercised shall be issued and delivered to, or in accordance with
transfer instructions properly given by, the Warrant Holder.
d. The Company may, in whole or in part and at any
time and from time to time, on not less than 60 days' written
notice, call the Warrants for redemption at a price of $.05 per
share covered thereby at any time after the closing high bid price
of the Common Stock (if then traded on the over-the-counter market
other than on the National Market System of NASDAQ) or the closing
price of the Common Stock (if then traded on the National Market
System of NASDAQ or on a national securities exchange) exceeds 120%
of the Exercise Price for a period of 20 consecutive trading days
prior to such call for redemption. Notice of any redemption will
be mailed to the Warrant Holders at their addresses of record. The
Warrants may be exercised any time prior to the specified
redemption date set forth in such notice; provided, however, that
in the event exercise of the Warrants is not made prior to the
redemption date, then the right to purchase the shares of Common
Stock underlying such Warrants shall be forfeited.
e. All Warrant Certificates surrendered upon
exercise of Warrants shall be cancelled.
Section 5. Reduction of Exercise Price and/or Extension of
Expiration Date. At any time prior to the Expiration Date, the
Company may reduce the Exercise Price and/or extend the Expiration
Date effective on thirty days' prior written notice to the Warrant
Holders. A copy of the resolution of the Board of Directors of the
Company authorizing such extension shall be made available by the
Company for inspection by the Warrant Holders and the Warrant Agent
during such 30-day notice period.
Section 6. Payment of Taxes. The Company will pay all
taxes attributable to the initial issuance of Warrant Stock upon
exercise of Warrants. The Company shall not, however, be required
to pay any tax which may be payable in respect of any transfer
involved in the issue of any Warrant Certificates or in the issue
of any certificates for Warrant Stock in a name other than that of
the Warrant Holder upon the exercise of any Warrant.
Section 7. Mutilated or Missing Warrant Certificates. If
any Warrant Certificate is mutilated, lost, stolen, 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 Certificate,
include the surrender thereof), and upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss,
theft or destruction, issue a substitute Warrant Certificate of
like denomination and tenor as the Warrant Certificate so
mutilated, lost, stolen or destroyed. Applicants for such
substitute Warrant Certificate shall also comply with such other
reasonable regulations and pay any reasonable charges as the
Company or the Warrant Agent may prescribe. If any Warrant
Certificate is mutilated, lost, stolen or destroyed, and the
Warrant Holder desires to exercise any Warrants evidenced thereby,
the Company and the Warrant Agent may authorize such exercise upon
receipt of such evidence and indemnity in lieu of issuing any
substitute Warrant Certificate to evidence the Warrants so
exercised.
Section 8. Reservation of Shares.
a. The Company will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock, for the purpose of
enabling it to satisfy any obligation to issue Warrant Stock upon
exercise of Warrants, the full number of shares issuable upon the
exercise of all outstanding Warrants.
b. The Company covenants that all Warrant Stock
which may be issued upon exercise of Warrants will upon issue be
fully paid and nonassessable by the Company and free from all
taxes, liens, charges and security interests with respect to the
issue thereof.
Section 9. Obtaining of Governmental Approvals and Stock
Exchange Listings. If any Warrant Stock issuable upon the exercise
of Warrants require registration or approval of any governmental
authority or the taking of any other action under the laws of the
United States of America, any state or any political subdivision
thereof before such Warrant Stock may be validly and lawfully
issued, the Company will in good faith and as expeditiously as
possible after surrender of the Warrant Certificates to the Warrant
Agent for exercise of Warrants evidenced thereby endeavor to secure
such registration or approval or to take such other action,
provided that in no event shall such Warrant Stock be issued, and
the Company shall have the authority to suspend the exercise of all
Warrants, until such registration or approval shall have been
obtained or such other action shall have been taken, but all
Warrants the exercise of which is requested during any such
suspension shall be exercisable at the Exercise Price and upon the
other conditions in effect on the date of surrender of the Warrant
Certificate and payment of the Exercise Price. If the Company is
unable to obtain such registration or approval within a reasonable
time, the Company may direct the Warrant Agent to return the
Warrant to the Warrant Holder and inform him that such Warrant may
not be exercised in such jurisdiction, and the Warrant Agent shall
comply with such directions.
Section 10. Adjustments of Exercise Price and Either Shares
Purchasable or Number of Warrants. The Exercise Price and either
the number of Shares purchasable upon exercise of each Warrant or
the number of Warrants outstanding shall be subject to adjustment
from time to time as provided herein.
a. Adjustment of Number of Shares. In case the
Company shall at any time issue shares of Common Stock by way of
dividend or other distribution to the holders of the outstanding
shares of Common Stock of the Company or subdivide or combine the
outstanding shares of Common Stock, the Exercise Price shall be
proportionately decreased in the case of such issuance (on the day
following the date fixed for determining shareholders entitled to
receive such dividend or other distribution) or decreased in the
case of such subdivision or increased in the case of such
combination (on the date that such subdivision or combination shall
become effective).
b. No Adjustment for Small Amounts. The Company
shall not be required to give effect to any adjustment in the
Exercise Price unless and until the net effect of one or more
adjustments, determined as above provided, shall have required a
change of the Exercise Price by at least one cent, but when the
cumulative net effect of more than one adjustment so determined
shall be to change the actual Exercise Price by at least one cent,
such change in the Exercise Price shall thereupon be given effect.
c. Number of Shares Adjusted. Upon any adjustment
of the Exercise Price, the holder of this Warrant shall thereafter
(until another such adjustment) be entitled to purchase, at the new
Exercise Price, the number of Shares of Common Stock, calculated to
the nearest full share, obtained by multiplying the number of
Shares initially issuable upon exercise of this Warrant by the
Exercise Price in effect on the date hereof and dividing the
product so obtained by the new Exercise Price.
d. Officer's Certificate. Whenever the Exercise
Price shall be adjusted as required herein, the Company shall
forthwith file in the custody of its Secretary or an Assistant
Secretary at its principal office, and with its Warrant Agent, an
officer's certificate showing the adjusted Exercise Price
determined as herein provided and setting forth in reasonable
detail the facts requiring such adjustment. Each such officer's
certificate shall be made available at all reasonable times for
inspection by the Holder and the Company shall, forthwith after
each such adjustment, give notice thereof to the Holder. Such
certificate shall be conclusive as to the correctness of such
adjustment.
Section 11. Notices to Warrant Holders. So long as this
Warrant shall be outstanding and unexercised (i) if the Company
shall pay any dividend or make any distribution upon the Common
Stock; or (ii) if the Company shall offer to the holders of Common
Stock for subscription or purchase by them any shares of stock of
any class or any other rights; or (iii) if any capital
reorganization of the Company; reclassification of the capital
stock of the Company; or voluntary or involuntary dissolution,
liquidation or winding up of the Company shall be effected, then,
in any such case, the Company shall cause to be given to the
Holder, at least ten calendar days prior to the date specified in
(x) or (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date on which
(x) a record is to be taken for the purpose of such dividend,
distribution or rights, or (y) such reclassification,
reorganization, consolidation, dissolution, liquidation or winding
up is to take place and the 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 Common Stock for securities or other
property deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or
winding up.
Section 12. Reclassification, Reorganization or Merger. In
case of (i) any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Company (other
than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of an issuance of
Common Stock by way of dividend or other distribution or of a
subdivision or combination); or (ii) in case the Company should
spin-off a subsidiary by distributing to the shareholders of the
Company, as a dividend or otherwise, the capital stock of the
subsidiary, the Company shall cause effective provision to be made
so that the Holder shall have the right thereafter, by exercising
this Warrant prior to the Expiration Date, to purchase or acquire
the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, capital
reorganization or other change, consolidation, as if the Holder had
exercised this Warrant prior to such transaction. Any such
provision shall include provision for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided
for in this Warrant. The foregoing provisions of this Section
shall similarly apply to successive reclassification, capital
reorganizations and changes of shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
Section 13. Merger or Sale. In case of (i) any
consolidation or merger of the Company with or into another
corporation (other than a merger with a subsidiary in which merger
the Company is the continuing corporation) or (ii) any sale, lease,
exchange or other disposition of all or substantially all of the
property and assets of the Company not in the usual and regular
course of the Company's business and in a transaction or series of
transactions requiring shareholder approval under the laws of the
State of Colorado, the Company shall cause notice thereof to be
given to the Holder at least 30 calendar days prior to the
anticipated date of closing of such transaction and,
notwithstanding any other provisions of this Agreement, the Warrant
shall expire upon the completion of such transaction to the extent
not exercised prior to such transaction closing.
Section 14. No Fractional Shares. No fractional shares or
scrip representing fractional shares will be issued upon exercise
of this Warrant. With respect to any fraction of a share called
for upon exercise hereof, the Company shall pay to the Holder an
amount in cash equal to such fraction multiplied by the then
current fair market value per Share determined by the Company.
Section 15. Notice to Warrant Holders. Any notice required
to be given to the Holder shall be deemed to have been given if in
writing and upon deposit in the United States mail, with postage
fully prepaid, and addressed to the Holder at the registered
address maintained on the books of the Company or the Warrant
Agent. Any notice or other communication to the Company shall be
deemed to have been given or to be effective for any purpose only
upon actual receipt thereof by the Company at its principal office
or by the Warrant Agent, as the case may be.
The form of Warrant Certificate need not be changed because of
any adjustment in the Exercise Price, the number of Shares
purchasable upon the exercise of a Warrant or the number of
Warrants outstanding and Warrant Certificates issued after any such
adjustment may state the same Exercise Price, the same number of
Warrants and the same number of Shares purchasable upon exercise of
a Warrant as are stated in the Warrant Certificates issued before
such adjustment as if such adjustment had not occurred. However,
the Company may at any time with the approval of the Warrant Agent
make any change in the form of Warrant Certificate that it may deem
appropriate and that does not affect the substance thereof and any
Warrant Certificates thereafter issued or countersigned, whether in
exchange or substitution for an outstanding Warrant Certificate or
otherwise, may be in the form as so changed.
Section 16. Rights of Warrant Holders.
a. No Warrant Holder, as such, shall have any
rights of a stockholder of the Company, either at law or equity,
and the rights of the Warrant Holders, as such, are limited to
those rights expressly provided in this Agreement or in the Warrant
Certificates.
b. The Company and the Warrant Agent may treat the
registered Warrant Holder in respect of any Warrant Certificate as
the absolute owner thereof for all purposes notwithstanding any
notice to the contrary.
Section 17. Warrant Agent.
a. The Company hereby appoints the Warrant Agent
to act as the agent of the Company in accordance with this
Agreement and the Warrant Agent hereby accepts such appointment.
b. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and
conditions by all of which the Company and every Warrant Holder, by
acceptance of any Warrants, shall be bound:
(1) The statements contained in this Agreement
and in the Warrant Certificates shall be taken as statements
of the Company and the Warrant Agent assumes no responsibility
for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it.
(2) The Warrant Agent shall not be responsible
for any failure of the Company to comply with any of the
covenants contained in this Agreement or in the Warrant
Certificates to be complied with by the Company.
(3) The Warrant Agent may consult at any time
with counsel satisfactory to it (who may be counsel for the
Company) and the Warrant Agent shall incur no liability or
responsibility to the Company or to any Warrant Holder in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or
the advice of such counsel, provided the Warrant Agent shall
have exercised reasonable care in the selection and continued
employment of such counsel.
(4) The Warrant Agent shall incur no liability
or responsibility to the Company or to any Warrant Holder for
any action taken in reliance on any notice, resolution,
waiver, consent, order, certificate or other paper, document
or instrument believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(5) The Company agrees to pay to the Warrant
Agent reasonable compensation for all services rendered by the
Warrant Agent in the execution of this Agreement including
fees for exercise of the Warrants, to reimburse the Warrant
Agent for all expenses, taxes and governmental charges and
other charges of any kind and nature incurred by the Warrant
Agent in the execution of this Agreement and to indemnify the
Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and 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, bad faith or willful misconduct.
(6) The Warrant Agent shall be under no
obligation to institute any action, suit or legal proceeding
or to take any other action likely to involve expense unless
the Company or one or more Warrant Holders shall furnish the
Warrant Agent with reasonable security and indemnity for any
costs and expenses which may be incurred, but this provision
shall not affect the power of the Warrant Agent to take such
action as the Warrant Agent may consider proper, whether with
or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may
be enforced by the Warrant Agent without the possession of any
of the Warrant Certificates or the production thereof at any
trial or other proceeding relative thereto, and any such
action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent, and any
recovery of judgment shall be for the ratable benefit of the
Warrant Holders as their respective rights or interests may
appear.
(7) The Warrant Agent and any stockholder,
director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Warrants or other securities of the
Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend
money to the Company or otherwise as fully and freely as
though it were not Warrant Agent under this Agreement.
Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Company or for any other legal
entity.
(8) The Warrant Agent shall act hereunder
solely as agent for the Company, and its duties shall be
determined solely by the provisions hereof.
Section 18. Merger, Consolidation or Change of Name of
Warrant Agent.
a. Any corporation into which the Warrant Agent
may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to the transfer agency business of the
Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any
further act on the part of the parties hereto, except that the
prior written consent thereto of the Company shall first be
obtained. In case at the time such successor to the Warrant Agent
shall succeed to the agency created by this Agreement, and in case
at that time any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Warrant
Agent may adopt the countersignature of the original Warrant Agent;
and in case at that time any of the Warrant Certificates shall not
have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates either in the name of the
predecessor Warrant Agent or in the name of the successor Warrant
Agent; and in all such cases such Warrant Certificates shall have
the full force provided in the Warrant Certificates and in this
Agreement.
b. In case at any time the name of the Warrant
Agent shall be changed and at such time any of the Warrant
Certificates shall have been countersigned but not delivered, the
Warrant Agent may adopt the countersignature under its prior name;
and in case at that time any of the Warrant Certificates shall not
have been countersigned, the Warrant Agent may countersign such
Warrant Certificates either in its prior name or in its changed
name; and in all such cases such Warrant Certificates shall have
the full force provided in the Warrant Certificates and in this
Agreement.
Section 19. Change of Warrant Agent. The Warrant Agent may
resign and be discharged from its duties under this Agreement by
giving to the Company notice in writing, and by giving notice in
writing to each Warrant Holder at his address appearing in the
Warrant register, specifying a date when such resignation shall
take affect, which notice shall be sent at least 30 days prior to
the date so specified and which notice shall be paid for by the
Company. If the Warrant Agent shall resign or shall otherwise
become incapable of acting, the Company shall appoint a successor
to 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 resigning or
incapacitated Warrant Agent or by any Warrant Holder, then any
Warrant Holder may apply to any court of competent jurisdiction for
the appointment of a successor to the Warrant Agent. Pending
appointment of a successor to the Warrant Agent, either by the
Company or by such court, the duties of the Warrant Agent shall be
carried out by the Company. Any successor Warrant Agent, whether
appointed by the Company or by such a court, shall be a transfer
agent registered pursuant to Section 17A(c) of the Securities
Exchange Act of 1934, as amended. After appointment the successor
Warrant Agent shall be vested with the same powers, rights, duties
and responsibilities as if it had been originally named as Warrant
Agent without further act or deed and the former Warrant Agent
shall deliver and transfer to the successor Warrant Agent any
property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the
purpose. Failure to give any notice provided for in this Section,
however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the
appointment of the successor Warrant Agent, as the case may be.
Section 20. Notices. Any notice or demand authorized by
this Agreement to be given or made by the Warrant Agent or by any
Warrant Holder to or on the Company shall be sufficiently given or
made only if in writing and upon actual receipt at the following
address (until another address is filed in writing by the Company
with the Warrant Agent):
Good Times Restaurants Inc.
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention:____________________
Any notice or demand authorized by this Agreement to be given or
made by any Warrant Holder or by the Company to or on the Warrant
Agent shall be sufficiently given or made if sent by mail,
certified or registered, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company),
as follows:
American Securities Transfer & Trust, Incorporated
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention:_____________________
Any distribution, notice or demand required or authorized by this
Agreement to be given or made by the Company or the Warrant Agent
to or on the Warrant Holders shall be sufficiently given or made if
in writing and upon deposit in the United States mail, first-class
or registered, postage prepaid, addressed to the Warrant Holders at
their last known addresses as they shall appear on the registration
books for the Warrant Certificates maintained by the Warrant Agent.
Section 21. Supplements and Amendments. The Company and
the Warrant Agent may from time to time supplement or amend this
Agreement without the approval of any Warrant Holders in order to
cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provision herein, or to make any other change which the
Company and the Warrant Agent may deem necessary or desirable and
which shall not adversely affect the interests of the Warrant
Holders.
Section 22. 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 hereunder.
Section 23. Termination. This Agreement shall terminate at
the close of business on the Expiration Date or such earlier date
upon which all Warrants have been exercised. The provisions of
Section 11 shall survive such terminations.
Section 24. Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Colorado and for all purposes shall
be construed in accordance with the laws of said State.
Section 25. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation
other than the Company, the Warrant Agent and the Warrant Holders
any legal or equitable right, remedy or claim under this Agreement;
but this Agreement shall be for the sole and exclusive benefit of
the Company, the Warrant Agent and the Warrant Holders.
Section 26. Agreement Available to Warrant Holders. A copy
of this Agreement shall be available at all reasonable times at the
office of the Warrant Agent for inspection by any Warrant Holder.
As a condition of such inspection, the Warrant Agent may require
any Warrant Holder to submit his Warrant Certificate for
inspection.
Section 27. Counterparts. This Agreement may be executed
in any number of counterparts, 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first
above written.
GOOD TIMES RESTAURANTS INC.,
[seal] a Nevada corporation
By: /s/ Xxxx X. Xxxxxx, President
Xxxx X. Xxxxxx, President
ATTEST:
/s/ Xxx Xxxxxxx ,
Secretary
AMERICAN SECURITIES TRANSFER &
TRUST, INCORPORATED, an independent
stock transfer company
[seal]
By:/s/ Xxxxxxx X. Xxxxx, Vice
President
Xxxxxxx X. Xxxxx, Vice President
ATTEST:
/s/ Xxxx X. Xxxxxxxxx ,
Assistant Secretary
