EXHIBIT 4.2
THIS SECURITY HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF
1933 (THE "ACT") OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED OR
SOLD UNLESS REGISTERED AND QUALIFIED PURSUANT TO THE APPLICABLE PROVISIONS OF
FEDERAL AND STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION
OR QUALIFICATION APPLIES. THEREFORE, NO SALE OR TRANSFER OF THIS SECURITY SHALL
BE MADE, NO ATTEMPTED SALE OR TRANSFER SHALL BE VALID, AND THE ISSUER SHALL NOT
BE REQUIRED TO GIVE ANY EFFECT TO ANY SUCH TRANSACTION UNLESS (A) SUCH
TRANSACTION HAS BEEN DULY REGISTERED UNDER THE ACT AND QUALIFIED OR APPROVED
UNDER APPROPRIATE STATE SECURITIES LAWS, OR (B) THE ISSUER HAS FIRST RECEIVED AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH REGISTRATION,
QUALIFICATION OR APPROVAL IS NOT REQUIRED.
WARRANT
For the Purchase of Shares of Common Stock of
CREATIVE HOST SERVICES, INC.
Void After 5 P.M. May 9, 2001
No. 1 Date: May 9, 2000
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Warrant to Purchase Ninety Thousand (90,000) Shares of Common Stock
THIS IS TO CERTIFY, that, for value received, Generation Capital Associates, or
registered assigns (the "Holder"), is entitled, subject to the terms and
conditions hereinafter set forth, on or after the date hereof, and at any time
prior to 5 P.M., Pacific Standard Time ("PST"), on May 9, 2001 but not
thereafter, to purchase such number of shares of Common Stock, no par value
("Common Stock" or the "Shares"), of Creative Host Services, Inc. (the
"Company"), from the Company as set forth above and upon payment to the Company
of an amount per Share of $16.00 (the "Purchase Price"), if and to the extent
this Warrant is exercised, in whole or in part, during the period this Warrant
remains in force, subject in all cases to adjustment as provided in Section 2
hereof, and to receive a certificate or certificates representing the Shares so
purchased, upon presentation and surrender to the Company of this Warrant, with
the form of Subscription Agreement attached hereto, including changes thereto
reasonably requested by the Company, duly executed and accompanied by payment of
the Purchase Price of each Share.
SECTION 1.
TERMS OF THIS WARRANT
1.1 TIME OF EXERCISE. This Warrant may be exercised at any time and
from time to time after 9:00 A.M., PST, on the date hereof (the "Exercise
Commencement Date"), but no
later than 5:00 P.M., May 9, 2001 (the "Expiration Time") at which time this
Warrant shall become void and all rights hereunder shall cease.
1.2 MANNER OF EXERCISE.
1.2.1 The Holder may exercise this Warrant, in whole or in
part, upon surrender of this Warrant, with the form of Subscription Agreement
attached hereto duly executed, to the Company at its corporate office in San
Diego, California, and upon payment to the Company of the full Purchase Price
for each Share to be purchased in lawful money of the United States, or by
certified or cashier's check, or wired funds, and upon compliance with and
subject to the conditions set forth herein.
1.2.2 Upon receipt of this Warrant with the form of
Subscription Agreement duly executed and accompanied by payment of the aggregate
Purchase Price for the Shares for which this Warrant is then being exercised,
the Company shall cause to be issued certificates for the total number of whole
Shares for which this Warrant is being exercised in such denominations as are
required for delivery to the Holder, and the Company shall thereupon deliver
such certificates to the Holder or its nominee.
1.2.3 In case the Holder shall exercise this Warrant with
respect to less than all of the Shares that may be purchased under this Warrant,
the Company shall execute a new Warrant for the balance of the Shares that may
be purchased upon exercise of this Warrant and deliver such new Warrant to the
Holder.
1.2.4 The Company covenants and agrees that it will pay when
due and payable any and all taxes which may be payable in respect of the issue
of this Warrant, or the issue of any Shares upon the exercise of this Warrant.
The Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issuance or delivery of this Warrant
or of the Shares in a name other than that of the Holder at the time of
surrender, and until the payment of such tax the Company shall not be required
to issue such Shares.
1.3 EXCHANGE OF WARRANT. This Warrant may be divided
into, combined with or exchanged for another Warrant or Warrants of like tenor
to purchase a like aggregate number of Shares. If the Holder desires to divide,
combine or exchange this Warrant, he shall make such request in writing
delivered to the Company at its corporate office and shall surrender this
Warrant and any other Warrants to be so divided, combined or exchanged. The
Company shall execute and deliver to the person entitled thereto a Warrant or
Warrants, as the case may be, as so requested. The Company shall not be required
to effect any division, combination or exchange which will result in the
issuance of a Warrant entitling the Holder to purchase upon exercise a fraction
of a Share. The Company may require the Holder to pay a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
division, combination or exchange of Warrants.
1.4 HOLDER AS OWNER. Prior to surrender of this
Warrant in accordance with Section 1.5 for registration of assignment, the
Company may deem and treat the Holder as the absolute owner of this Warrant
(notwithstanding any notation of
ownership or other writing hereon) for the purpose of any exercise hereof and
for all other purposes, and the Company shall not be affected by any notice to
the contrary.
1.5 METHOD OF ASSIGNMENT. Any assignment or transfer
of any portion or all of this Warrant shall be made by surrender of this Warrant
to the Company at its principal office with the form of assignment attached
hereto duly executed and accompanied by funds sufficient to pay any transfer
tax. In such event, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be canceled.
1.6 RIGHTS OF HOLDER. Nothing contained in this
Warrant shall be construed as conferring upon the Holder the right to vote,
consent or receive notice as a shareholder in respect of any meetings of
shareholders for the election of directors or any other matter, or as having any
rights whatsoever as a shareholder of the Company.
1.7 LOST CERTIFICATES. If this Warrant is lost,
stolen, mutilated or destroyed, the Company shall, on such reasonable terms as
to indemnity or otherwise as it may impose (which shall, in the case of a
mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as, and in substitution for, this Warrant, which shall
thereupon become void. Any such new Warrant shall constitute an additional
contractual obligation of the Company, whether or not the Warrant so lost,
stolen, destroyed or mutilated shall be at any time enforceable by anyone.
1.8 COVENANTS OF THE COMPANY. The Company covenants
and agrees as follows:
1.8.1 At all times the Company shall reserve
and keep available for the exercise of this Warrant such number of authorized
shares of Common Stock as are sufficient to permit the exercise in full of this
Warrant.
1.8.2 The Company covenants that all Shares
when issued upon the exercise of this Warrant will be validly issued, fully
paid, nonassessable and free of preemptive rights.
SECTION 2.
ADJUSTMENT OF PURCHASE PRICE
AND NUMBER OF SHARES PURCHASABLE UPON EXERCISE
2.1 STOCK SPLITS. If the Company at any time or from
time to time after the issuance date of this Warrant effects a subdivision of
the outstanding Common Stock, the Purchase Price then in effect immediately
before that subdivision shall be proportionately decreased, and conversely, if
the Company at any time or from time to time after the issuance date of this
Warrant combines the outstanding shares of Common Stock, the Purchase Price then
in effect immediately before the combination shall be proportionately
increased. Any adjustment under this subsection 2.1 shall become effective at
the close of business on the date the subdivision or combination becomes
effective.
2.2 DIVIDENDS AND DISTRIBUTIONS. In the event the
Company at any time, or from time to time after the issuance date of this
Warrant makes, or fixes a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect shall be decreased as of the time of such issuance or, in
the event such a record date is fixed, as of the close of business on such
record date, by multiplying the Purchase Price then in effect by a fraction (i)
the numerator of which is the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (ii) the denominator of which shall be the
total number of shares of Common Stock issued and outstanding immediately prior
to the time of such issuance or the close of business on such record date plus
the number of shares of Common Stock issuable in payment of such dividend or
distribution; provided, however, that if such record date is fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Purchase Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Purchase Price shall be
adjusted pursuant to this subsection 2.2 as of the time of actual payment of
such dividends or distributions.
2.3 RECAPITALIZATION OR RECLASSIFICATION. If the
Shares issuable upon the exercise of the Warrant are changed into the same or a
different number of shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than a subdivision or
combination of shares or stock dividend or a reorganization, merger,
consolidation or sale of assets, provided for elsewhere in this Section 2),
then, and in any such event, the Holder shall thereafter be entitled to receive
upon exercise of this Warrant such number and kind of stock or other securities
or property of the Company to which a holder of Shares deliverable upon exercise
of this Warrant would have been entitled on such reclassification or other
change, subject to further adjustment as provided herein.
SECTION 3.
NO REGISTRATION UNDER THE SECURITIES ACT OF 1933
This Warrant and the Shares issuable upon exercise of this Warrant have not been
registered under the Securities Act of 1933, as amended ("the Act"). Upon
exercise, in whole or in part, of this Warrant, the certificates representing
the Shares shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF
1933 ("ACT") OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED OR SOLD
UNLESS REGISTERED AND QUALIFIED PURSUANT TO THE APPLICABLE PROVISIONS OF FEDERAL
AND STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION OR
QUALIFICATION APPLIES. THEREFORE, NO SALE OR TRANSFER OF THIS SECURITY SHALL BE
MADE, NO ATTEMPTED SALE OR TRANSFER SHALL BE VALID, AND THE ISSUER SHALL NOT BE
REQUIRED TO GIVE ANY EFFECT TO
ANY SUCH TRANSACTION UNLESS (A) SUCH TRANSACTION HAS BEEN DULY REGISTERED UNDER
THE ACT AND QUALIFIED OR APPROVED UNDER APPROPRIATE STATE SECURITIES LAWS, OR
(B) THE ISSUER HAS FIRST RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO IT THAT
SUCH REGISTRATION, QUALIFICATION OR APPROVAL IS NOT REQUIRED.
SECTION 4.
OTHER MATTERS
4.1 BINDING EFFECT. All the covenants and provisions
of this Warrant by or for the benefit of the Company shall bind and inure to the
benefit of its successors and assigns hereunder.
4.2 NOTICES. Notices or demands pursuant to this
Warrant to be given or made by the Holder to or on the Company shall be
sufficiently given or made if sent by certified or registered mail, return
receipt requested, postage prepaid, or facsimile and addressed, until another
address is designated in writing by the Company, as follows:
Creative Host Services, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx X & X
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxx, President
Notices to the Holder provided for in this Warrant shall be deemed given or made
by the Company if sent by certified or registered mail, return receipt
requested, postage prepaid, and addressed to the Holder at his last known
address as it shall appear on the books of the Company.
4.3 GOVERNING LAW. The validity, interpretation and
performance of this Warrant shall be governed by the laws of the State of
California. The venue for any legal proceedings under this Warrant will be in
the appropriate forum in the County of San Diego, State of California.
4.4 PARTIES BOUND AND BENEFITED. Nothing in this
Warrant 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 Company and the Holder any right, remedy or
claim under any promise or agreement hereof, and all covenants, conditions,
stipulations, promises and agreements contained in this Warrant shall be for the
sole and exclusive benefit of the Company and its successors and of the Holder,
its successors and permitted assigns.
4.5 HEADINGS. The Section headings herein are for
convenience only and are not part of this Warrant and shall not affect the
interpretation thereof.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company as of May
9, 2000.
CREATIVE HOST SERVICES, INC.
By:
----------------------
Xxxxx Xxx, President
ASSIGNMENT OF WARRANT
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and
transfers unto _____________________________ the within Warrant and the rights
represented thereby, and does hereby irrevocably constitute and appoint
_______________________________ Attorney, to transfer said Warrant on the books
of the Company, with full power of substitution.
Dated:
Signed:
Signature guaranteed:
SUBSCRIPTION AGREEMENT
FOR THE EXERCISE OF WARRANTS
The undersigned hereby irrevocably subscribes for the purchase of _____________
Shares pursuant to and in accordance with the terms and conditions of this
Warrant, which Shares should be delivered to the undersigned at the address
stated below. If said number of Shares are not all of the Shares purchasable
hereunder, a new Warrant of like tenor for the balance of the remaining Shares
purchasable hereunder should be delivered to the undersigned at the address
stated below.
The undersigned elects to pay the aggregate Purchase Price for such Shares in
the following manner:
/ / by the enclosed cash or check made payable to the Company in the amount of
$________;
/ / by wire transfer of United States funds to the account of the Company in the
amount of $____________, which transfer has been made before or simultaneously
with the delivery of this Notice pursuant to the instructions of the Company; or
The undersigned agrees that: (1) the undersigned will not offer, sell, transfer
or otherwise dispose of any Shares unless either (a) a registration statement,
or post-effective amendment thereto, covering the Shares has been filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Act"), such sale, transfer or other disposition is accompanied by
a prospectus meeting the requirements of Section 10 of the Act forming a part of
such registration statement, or post-effective amendment thereto, which is in
effect under the Act covering the Shares to be so sold, transferred or otherwise
disposed of, and all applicable state securities laws have been complied with,
or (b) counsel reasonably satisfactory to Creative Host Services, Inc. has
rendered an opinion in writing and addressed to Creative Host Services, Inc.
that such proposed offer, sale, transfer or other disposition of the Shares is
exempt from the provisions of Section 5 of the Act in view of the circumstances
of such proposed offer, sale, transfer or other disposition; (2) Creative Host
Services, Inc. may notify the transfer agent for the Shares that the
certificates for the Shares acquired by the undersigned are not to be
transferred unless the transfer agent receives advice from Creative Host
Services, Inc. that one or both of the conditions referred to in (1)(a) and
(1)(b) above have been satisfied; and (3) Creative Host Services, Inc. may affix
the legend set forth in Section 3.1 of this Warrant to the certificates for the
Shares hereby subscribed for, if such legend is applicable.
Dated:
Signed:
Signature guaranteed:
Address:
