Exhibit 4.12
This Warrant has not been registered under the
Securities Act of 1933, as amended (the
"Securities Act") or under any applicable state
securities law, and in the absence of such
registration may not be sold or transferred
unless the issuer of this Warrant has received an
opinion of its counsel, or of counsel reasonably
satisfactory to it, that the proposed sale or
transfer will not violate the registration
requirements of the Securities Act or any
applicable state securities law
BOSTON CHICKEN, INC.
AMENDED AND RESTATED
WARRANT CERTIFICATE TO PURCHASE
SHARES OF COMMON STOCK
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Date of Issuance: December 29, 1997 Certificate W-GE-2
FOR VALUE RECEIVED, Boston Chicken, Inc., a Delaware corporation (the
"Company"), hereby grants to General Electric Capital Corporation (the
"Registered Holder") the right to purchase from the Company 69,600 shares of the
Company's Common Stock, $.01 par value, at a price per share of $10.5625 (as
adjusted from time to time in accordance herewith, the "Exercise Price"). This
Amended and Restated Warrant Certificate to Purchase Shares of Common Stock
hereby amends, restates and replaces in its entirety that certain Warrant
Certificate to Purchase Shares of Common Stock dated December 12, 1996 from the
Company in favor of the Registered Holder.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
1A. Exercise Period. The Registered Holder may exercise, in whole or in
part, the purchase rights represented by this Warrant at any time and from time
to time during the period commencing on Date of Issuance of this Warrant set
forth above and ending on December 12, 2001 (the "Exercise Period").
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised when the
Company has received all of the following items (the "Exercise Time"):
(a) a completed Exercise Agreement, as described in paragraph 1C
below, executed by the person exercising all or part of the purchase rights
represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) cash (payable by wire transfer of same day funds or a
certified or bank cashier's check) in an amount equal to the product of the
Exercise Price multiplied by the number of shares of Company Common Stock
being purchased upon such exercise (the "Aggregate Exercise Price").
(ii) Certificates for shares of Common Stock, if any, purchased upon
exercise of this Warrant shall be delivered by the Company to the Purchaser as
soon as reasonably practicable after the Exercise Time. Unless this Warrant has
expired or all of the purchase rights represented hereby have been exercised,
the Company shall prepare a new Warrant, substantially identical hereto,
representing the rights formerly represented by this Warrant which have not
expired or been exercised and shall, as soon as reasonably practicable, deliver
such new Warrant to the person designated for delivery in the Exercise
Agreement.
(iii) The shares of Common Stock issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the Exercise
Time, and the Purchaser shall be deemed for all purposes to have become the
record holder of such shares of Common Stock at the Exercise Time irrespective
of the date of delivery of certificates for shares of Common Stock.
(iv) The issuance of certificates for shares of Common Stock, if any,
upon exercise of this Warrant shall be made without charge to the Registered
Holder or the Purchaser for any issuance tax in respect thereof or other cost
incurred by the Company in connection with such exercise and the related
issuance of shares of Common Stock (other than the Aggregate Exercise Price).
Each share of Common Stock issuable upon exercise of this Warrant shall, when
issued, be duly and validly issued and free from all taxes, liens and charges.
(v) The Company shall reasonably assist and cooperate with the
Registered Holder or Purchaser required to make any governmental filings or
obtain any governmental approvals prior to or in connection with any exercise of
this Warrant (including, without limitation, making any reasonable filings
required to be made by the Company), provided, however, that the Company will
not be required to (A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subparagraph
(v), (B) subject itself to taxation in any such jurisdiction, (C) consent to
general service of process in any such jurisdiction, or (D) incur costs or fees
which are inordinate to the value of the securities sought to be sold in such
jurisdiction.
(vi) The Company shall at all times reserve and keep available out of
its authorized but unissued Common Stock solely for the purpose of issuance upon
the exercise of this Warrant the maximum number of shares issuable upon the
exercise of this Warrant. All shares which are so issuable shall, when issued
in accordance herewith upon the payment of the Exercise Price, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges. The Company shall take all such actions as may be reasonably necessary
to assure that all such shares of Common Stock may be so issued without
violation of any
applicable law or governmental regulation or any requirements of any domestic
securities exchange upon which shares of Common Stock of the Company or their
equivalents may be listed (except for official notice of issuance which shall be
immediately delivered by the Company upon such issuance).
(vii) Notwithstanding any other provision hereof, if an exercise of
any portion of this Warrant is to be made in connection with a registered public
offering of the Company or any event described in Section 2B hereof, the
exercise of any portion of this Warrant may, at the election of the Registered
Holder hereof, be conditioned upon the consummation of the public offering or
the event described in Section 2B, in which case such exercise shall not be
deemed to be effective until the consummation of such transaction.
(viii) Unless the shares of Common Stock to be issued upon exercise
of this Warrant have been registered under the Securities Act of 1933, as
amended, the certificates for such shares shall contain the following legend:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended ("Securities Act"), or under any
applicable state securities law, and may not be resold or transferred unless
registered under the Securities Act or unless the Company has received an
opinion of its counsel, or of counsel reasonably satisfactory to it, that the
proposed transfer will not violate the registration requirements of the
Securities Act or any applicable state securities law."
1C. Exercise Agreement. Upon any exercise of this Warrant, the Exercise
Agreement shall be substantially in the form set forth in Exhibit I hereto,
except that if the shares of Common Stock are not to be issued in the name of
the person in whose name this Warrant is registered, the Exercise Agreement
shall also state the name of the person to whom the shares of Common Stock are
to be issued. Such Exercise Agreement shall be dated the actual date of
execution thereof.
Section 2. Adjustment of Exercise Price and Number of Shares. The
Exercise Price and the number of shares of Common Stock (or other securities)
obtainable upon exercise of this Warrant shall be subject to adjustment from
time to time as provided in this Section 2.
2A. Subdivision or Combination of Shares of Common Stock. If the Company
at any time subdivides (by any split, dividend, recapitalization or otherwise)
one or more classes of its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Common
Stock obtainable upon exercise of this Warrant shall be proportionately
increased. If the Company at any time combines (by reverse split or otherwise)
one or more classes of its outstanding shares of Common Stock into a smaller
number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of shares of
Common Stock obtainable upon exercise of this Warrant shall be proportionately
decreased.
2B. Reorganization, Reclassification, Consolidation or Merger. The shares
of Common Stock issuable upon exercise of this Warrant shall be adjusted as
follows: (a) in the event of any merger, consolidation or reorganization of the
Company with any other corporation or corporations, there shall be substituted,
on an equitable basis, for each such share of Common Stock the number and kind
of shares of stock or other securities to which the holders of each share of
Common Stock of the Company will be entitled pursuant to the transaction; and
(b) in the event of any other substantially similar change in the capitalization
of the Company (other than cash dividends in the ordinary course of business),
an equitable adjustment shall be provided in the number of shares of Common
Stock. In the event of any such adjustment the purchase price per share shall
be proportionately adjusted.
2C. Notice of Adjustment. Promptly upon any adjustment of the
Exercise Price or the number of shares of Common Stock issuable upon exercise of
this Warrant, the Company shall give written notice thereof to the Registered
Holder, setting forth in reasonable detail and certifying the calculation of
such adjustment.
2D. Other Notices. The Company shall give the Registered Holder
prompt prior notice of all record dates relating to the Common Stock.
Section 3. No Voting Rights; Limitations of Liability. This Warrant shall
not entitle the holder hereof to any voting rights or other rights as a holder
of shares of Common Stock in the Company. No provision hereof, in the absence
of affirmative action by the Registered Holder to purchase shares of Common
Stock, and no enumeration herein of the rights or privileges of the Registered
Holder shall give rise to any liability of such holder for the Exercise Price of
Shares of Common Stock acquirable by exercise hereof or as a holder of shares of
Common Stock in the Company.
Section 4. Transferability. Except as provided in this Section 4, this
Warrant and all rights hereunder are not transferable without the prior written
consent of the Company in its sole discretion. The restrictions on transfer of
this Warrant shall continue during the entire term of this Warrant. Subject to
the transfer conditions referred to in the legend endorsed hereon and the
provisions of this Section 4, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant with properly
executed Assignment (in the form of Exhibit II hereto) at the principal office
of the Company; provided that no transfer of all or any part of this Warrant may
be made if such transfer would cause the aggregate number of holders of warrants
derived from this Warrant to be held by more than seven persons; and provided,
further, each such transferee must be an "accredited investor" within the
meaning of Regulation D of the Securities Act. The Company shall not impose any
fee or charge for such transfer. No such transferee receiving this Warrant or
any warrant derived herefrom may transfer such warrant or any of its rights
without the prior written consent of the Company in its sole discretion. Shares
issued pursuant to this Warrant or any warrant derived herefrom shall be subject
to the same transfer restrictions as set forth herein for this Warrant, provided
that the restrictions on transferability of shares issuable upon exercise of any
such warrant shall only apply until (i) such securities shall have been
registered under the Securities Act of 1933, as amended (the "Securities Act")
and disposed of in accordance with a registration statement covering such
securities, or (ii) such time as, in the reasonable opinion of counsel for the
Company, or upon the written opinion of counsel for the holder thereof
reasonably acceptable to the Company, such restrictions are not required in
order to comply with the Securities Act of 1933. Whenever such restrictions
shall terminate as to any shares issued upon exercise of any such warrant, the
holder thereof shall be entitled to receive from the Company, without expense,
new certificates of like tenor not bearing the restrictive legends required
hereby.
Section 5. Warrant Exchangeable for Different Denominations. This Warrant
is exchangeable, upon the surrender hereof by the Registered Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the purchase rights hereunder, and each of such new Warrants shall
represent such portion of such rights as is designated by the Registered Holder
at the time of such surrender. The date the Company initially issues this
Warrant shall be deemed to be the "Date of Issuance" hereof regardless of the
number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant shall be issued. All Warrants
representing portions of the rights hereunder are referred to herein as the
"Warrants."
Section 6. Replacement. Upon receipt of evidence reasonably satisfactory
to the Company of the ownership and the loss, theft, destruction or mutilation
of any certificate evidencing this Warrant, and in the case of any such loss,
theft or destruction, upon receipt of indemnity reasonably satisfactory to the
Company, or, in the case of any such mutilation upon surrender of such
certificate, the Company shall (at its expense) execute and deliver in lieu of
such certificate a new certificate of like kind representing the same rights
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
Section 7. Notices. Except as otherwise expressly provided herein, all
notices referred to in this Warrant shall be in writing and shall be delivered
personally, sent by reputable overnight courier service (charges prepaid), sent
by fax or sent by registered or certified mail, return receipt requested,
postage prepaid, as follows: (i) if given to the Company, at its principal
executive offices and (ii) if given to the Registered Holder of this Warrant, at
such holder's address as it appears in the records of the Company. Each such
notice shall be deemed to have been given upon the earlier of the receipt of
such notice by the intended recipient thereof, two business days after it is
sent by reliable overnight courier or sent by fax, or five business days after
it is mailed by registered or certified mail, return receipt requested.
Section 8. Amendment and Waiver. Except as otherwise provided herein, the
provisions of the Warrants may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the written consent of the Registered
Holders of Warrants representing a majority of the shares of Common Stock
obtainable upon exercise of the Warrants; provided that no such action may
change the Exercise Price of the Warrants or the number or class of shares of
Common Stock obtainable upon exercise of each Warrant without the written
consent of all of the Registered Holders of Warrants.
Section 9. Descriptive Headings; Governing Law. The descriptive headings
of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The laws of the
State of Delaware shall govern all issues concerning the relative rights of the
Company and the Registered Holder of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and
attested by its duly authorized officers under its corporate seal and to be
dated the Date of Issuance hereof.
BOSTON CHICKEN, INC.
/s/ Xxxx X. Xxxx
By:____________________________________
Name: Xxxx X. Xxxx
Its: Senior Vice President
[Corporate Seal]
Attest:
/s/ Xxxxxxxxxx Xxxxxxx
__________________________________
Secretary
EXHIBIT I
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EXERCISE AGREEMENT
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To: Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. W-___________), hereby agrees to purchase __________
shares of Common Stock covered by such Warrant and makes payment herewith in
full therefor at the price per share provided by such Warrant.
Signature
_______________________________
Address
________________________________
EXHIBIT II
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ASSIGNMENT
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FOR VALUE RECEIVED, ______________________________ hereby sells, assigns
and transfers all of the rights of the undersigned under the attached Warrant
(Certificate No. W-________________) with respect to the number of the shares
covered thereby set forth below, unto:
Name of Assignee: _________________________________
_________________________________
_________________________________
Address: _________________________________
_________________________________
_________________________________
No. of Shares _________________________________
Accompanying this Assignment is a certificate from the proposed transferee
certifying that such assignment and Assignee meet the requirements of Section 4
of the Warrant.
Dated: ______________________ Signature: ___________________________
___________________________
Witness: ___________________________
