EXHIBIT 4.5
ELEPHANT & CASTLE GROUP INC.
NOTEHOLDER'S EXCHANGE WARRANT
NO. DATED AS OF DECEMBER 3, 1999
Elephant & Castle Group, Inc., a corporation organized under the Province of
British Columbia (the "Company"), hereby agrees that, for value received,
_____________________. or its assigns, is entitled, subject to the terms set
forth below, to purchase from the Company, at any time after the date hereof and
prior to January 31, 2001, _____________________ (_____________) shares of the
$0.1 par value Common stock of the Company (the "Common Stock"), at an exercise
price of $2.00 per share and prior to January 31, 2003 at an exercise price of
$3.00, which exercise prices are subject to adjustment as provided herein. Terms
not otherwise defined herein shall have the meaning ascribed in that certain
Agency Agreement by and between Delphi Financial Corporation and the Company
dated as of February 1, 1999.
1. EXERCISE OF WARRANT. The purchase rights granted by this Warrant shall
be exercised by surrendering this Warrant with the form of exercise
attached hereto duly executed by such holder, to the Company at its
principal office, accompanied by payment, in cash or by cashier's check
payable to the order of the Company or by cashless exercise pursuant to
Section 2 hereof, of the purchase price payable in respect of the
Common Stock being purchased. If less exercise, execute and deliver to
the holder hereof a new Warrant (dated the date hereof) evidencing the
number of shares of common Stock not so purchased. As soon as practical
after the exercise of this Warrant and payment of the purchase price,
the Company will cause to be issued in the name of and delivered to the
holder hereof or as such holder may direct, a certificate or
certificates representing the shares purchased upon such exercise.
2. ANTI-DILUTION ADJUSTMENTS. If the Company shall at any time hereafter
subdivide or combine its outstanding shares of Common Stock, or declare
a dividend payable in Common Stock, the exercise price in effect
immediately prior to the subdivision, combination or record date for
such dividend payable in Common Stock shall forthwith be
proportionately
ELEPHANT & CASTLE INTERNATIONAL, INC. 5 GTM/LEH/JAW 042199
ALAMO GRILL FRANCHISE AGREEMENT 475250.5
increased, in the case of combination, or proportionately decreased,
in the case of subdivision or declaration of a dividend payable in
Common Stock, and each share of Common Stock purchasable upon
exercise of this Warrant, immediately preceding such event, shall be
changed to the number determined by dividing the then current
exercise price by the exercise price as adjusted after such
subdivision, combination or dividend payable in Common Stock.
No fractional shares of Common Stock are to be issue upon the exercise of the
Warrant, but the Company shall pay a cash adjustment in respect of any fraction
of a share which would otherwise be issuable in an amount equal to the same
fraction of the market price per share of Common Stock on the day of exercise as
determined in good faith by the Company.
In case of any capital reorganization or any reclassification of the
shares of Common Stock of the Company, or in the case of any consolidation with
or merger of the Company into or with another corporation, or the sale of all or
substantially all of its assets to another corporation, which is effected in
such a manner that the holders of Common Stock shall be entitled to receive
stock, securities or assets with respect to or in exchange for Common Stock,
then, as part of such reorganization, reclassification, consolidation, merger or
sale, as the case may be, lawful provision shall be made so that the holder of
the Warrant shall have the right thereafter to receive, upon the exercise
hereof, the kind and amount of shares of stock or other securities or property
which the holder would have been entitled to receive if, immediately prior to
such reorganization, reclassification, consolidation, merger or sale, the holder
had held the number of shares of Common Stock which were then purchasable upon
the exercise of the Warrant. In any such case, appropriate adjustment (as
determined in good faith by the Board of Directors of the Company) shall be made
in the application of the provisions set forth herein with respect to the rights
and interest thereafter of the holder of the Warrant, to the end that the
provisions set forth herein (including provisions with respect to adjustments of
the exercise price) shall thereafter be applicable, as nearly as reasonably may
be, in relation to any shares of stock or other property thereafter deliverable
upon the exercise of the Warrant.
When any adjustment is required to be made in the exercise price,
initial or adjusted, the Company shall forthwith determine the new exercise
price, and
ELEPHANT & CASTLE INTERNATIONAL, INC. 5 GTM/LEH/JAW 042199
ALAMO GRILL FRANCHISE AGREEMENT 475250.5
(a) prepare and retain on file a statement describing in
reasonable detail the method used in arriving at the new
exercise price; and
(b) cause a copy of such statement to be mailed to the holder of
the Warrant as of a date within (10) days after the date when
the circumstances giving rise to the adjustment occurred.
3. TRANSFERABILITY. Prior to making any transfer of the Warrant or of any
Common Stock purchased upon the exercise of the Warrant, the holder
will give written notice to the Company describing briefly the manner
of any such proposed transfer. The holder will not make any such
transfer until (i) the Company has notified it that, in the opinion of
its counsel, registration under the Act is not required with respect to
such transfer, or (ii) a registration statement covering the proposed
distribution has been filed by the Company and has become effective.
The holder will then make any disposition only pursuant to the
conditions of such opinion or registration. The Company agrees that,
upon receipt of written notice from the holder hereof with respect to
such proposed distribution, it will use its best efforts, in
consultation with the holder's counsel, to ascertain as promptly as
possible whether or not registration is required, and will advise the
holder promptly with respect thereto, and the holder will cooperate in
providing the Company with information necessary to make such
determination.
ELEPHANT & CASTLE INTERNATIONAL, INC. 5 GTM/LEH/JAW 042199
ALAMO GRILL FRANCHISE AGREEMENT 475250.5
4. REGISTRATION RIGHTS.
(a) REGISTRATION. The Company shall register the shares of Common Stock
issuable upon exercise of the Warrants in the registration statement on
Form S-3 (or its equivalent) when the Company registers the shares of
Common Stock issuable upon conversion of the securities sold in the
First Private Placement.
(b) "PIGGYBACK" REGISTRATION RIGHTS. If, at any time after the date hereof
and prior to the expiration of one (1) year from the date hereof, the
Company shall propose to file any registration statement under the
Securities Act of 1933, as amended, covering a public offering of the
Company's Common Stock and permitting the inclusion of shares of
selling shareholders, it will notify the holder hereof at least thirty
(30) days prior to each such filing and will include in the
registration statement (to the extent permitted by applicable
regulation) the Common Stock purchased by the holder or purchasable by
the holder upon the exercise of the Warrant to the extent requested by
the holder hereof. Notwithstanding the foregoing, the number of shares
of the holders of the Warrants proposed to be registered shall thereby
be reduced pro rata with any other selling shareholder (other than the
Company) upon the request of the managing underwriting of such offering
subject to the prior rights of any other selling shareholders that give
it first priority in any such registration. If the registration
statement or offering statement filed pursuant to such forty-five (45)
day notice has not become effective within six months following the
date such notice is given to the holder hereof, the Company must again
notify such holder in the manner provided above.
(c) OTHER.
(i) All expenses of any such registrations referred to in this
Section 4, except the fees of counsel to such holders and
underwriting commissions or discount, shall be borne by the
Company
(ii) The Company will mail to the holder hereof, at the last known
post office address, written notice of any exercise of the
rights granted under this Section 4, by certified or
registered mail, return receipt requested, and each holder
shall have thirty (30) days from the day of deposit of such
notice in the U.S. Mail to
ELEPHANT & CASTLE INTERNATIONAL, INC. 5 GTM/LEH/JAW 042199
ALAMO GRILL FRANCHISE AGREEMENT 475250.5
notify the Company in writing whether such holder wishes to
join in such exercise.
(iii) The Company will furnish the holder hereof with a reasonable
number of copies of any prospectus included in such filings
and will amend or supplement the same as required during the
period of required use thereof. The Company will maintain the
effectiveness of any shelf registration statement or the
offering statement filed by the Company, whether or not at the
request of the holder hereof, for at least six (6) months
following the effective date thereof.
(iv) In the case of the filing of any registration statement, and
to the extent permissible under the Act and controlling
precedent thereunder, the Company and the holder hereof shall
provide cross indemnification agreements to each other in
customary scope covering the accuracy and completeness of the
information furnished.
(v) The holder of the Warrant agrees to cooperate with the Company
in the preparation and filing of any registration statement or
offering statement, and in the furnishing of information
concerning the holder for inclusion therein, or in any efforts
by the Company to establish that the proposed sale is exempt
under the Act as to any proposed distribution.
(vi) The Company shall have no obligation under this Section 4 to
register any of the shares of the holders if in accordance
with the Rule 144, promulgated under the Securities Act of
1933, as amended, the holder may sell all his shares of common
stock obtained upon an exercise of this Warrant within ninety
(90) days immediately following the request for registration.
5. NOTICES. The Company shall mail to the registered holder of the
Warrant, at its last known post office address appearing on the books
of the Company, not less than fifteen (15) days prior to the date on
which (a) a record will be taken for the purpose of determining the
holders of Common Stock entitled to dividends (other than cash
dividends) or subscription rights, or (b) a record will be taken (or in
lieu thereof the transfer books will be closed) for the
ELEPHANT & CASTLE INTERNATIONAL, INC. 5 GTM/LEH/JAW 042199
ALAMO GRILL FRANCHISE AGREEMENT 475250.5
purpose of determining the holders of Common Stock entitled to
notice of and to vote at a meeting of stockholders at which any
capital reorganization, reclassification of shares of Common Stock,
consolidation, merger, dissolution, liquidation, winding up or sale
of substantially all of the Company's assets, shall be considered
and acted upon.
6. RESERVATION OF COMMON STOCK. A number of shares of Common Stock
sufficient to provide for the exercise of the Warrant upon the basis
herein set forth shall at all times be reserved for the exercise
thereof.
7. MISCELLANEOUS. Whenever reference is made herein to the issue or sale
of shares of Common Stock, the term "Common Stock" shall include any
stock of any class of the Company other than preferred stock with a
fixed limit on dividends and a fixed amount payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Company.
Upon written request of the holder of this Warrant, the Company will
promptly provide such holder with a then current written list of the names and
addresses of all holders of warrants originally issued under the terms of, and
concurrent with, this Warrant.
The representations, warranties and agreements herein contained
shall survive the exercise of this Warrant. References to the "holder of"
include the immediate holder of shares purchased on the exercise of this
Warrant, and the word "holder" shall include the plural thereof. This Warrant
shall be interpreted under the laws of the STATE OF MINNESOTA.
All shares of Common Stock or other securities issued upon the exercise
of this Warrant shall be validly issued, fully paid and non-assessable, and the
Company will pay all taxes in respect of the issuer thereof.
Notwithstanding anything contained herein to the contrary, the Holder
of this Warrant shall not be deemed a stockholder (including, no right to vote
on any matters coming, before the shareholders) of the Company for any purpose
whatsoever until and unless this Warrant is duly exercised.
IN WITNESS WHEREOF, this Warrant has been duly executed by Elephant &
Castle Group, Inc., this ____ day of December, 1999.
ELEPHANT & CASTLE INTERNATIONAL, INC. 5 GTM/LEH/JAW 042199
ALAMO GRILL FRANCHISE AGREEMENT 475250.5
ELEPHANT & CASTLE GROUP, INC.
By:_______________________
Title:______________________
ELEPHANT & CASTLE INTERNATIONAL, INC. 5 GTM/LEH/JAW 042199
ALAMO GRILL FRANCHISE AGREEMENT 475250.5
