Exhibit 4.15
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.
WARRANT CERTIFICATE TO PURCHASE
SHARES OF COMMON STOCK
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Date of Issuance: December 5, 1997 Certificate -AT&T-1
FOR VALUE RECEIVED, Boston Chicken, Inc., a Delaware corporation (the
"Company"), hereby grants to AT&T Commerical Finance Corporation, a Delaware
corporation, or its permitted registered assigns ("AT&T," or the "Registered
Holder") the right to purchase from the Company 45,290 shares of the Company's
common stock, $.01 par value (the "Common Stock"), at a price per share of
$7.03125 (as adjusted from time to time in accordance herewith, the "Exercise
Price").
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 the third annual anniversary of the Date of Issuance
(the "Exercise Period,"). In the event that the Company exercises its rights
pursuant to Section 2.1 or Section 2.2 of that certain Registration Rights
Agreement of even date herewith between the Company and AT&T (the "Registration
Agreement"), such that the Company has not filed a Resale Registration (as
defined in the Registration Agreement) under the Securities Act prior to the end
of the 18-month period immediately following the Closing Date (as defined in the
Registration Agreement), the Company hereby agrees that the Exercise Period
shall be extended one day for each such day after the 18-month period
immediately following the Closing Date for which the Company has not filed a
Resale Registration under the Securities Act. In the event that pursuant to
Section 2.5 of the Registration Agreement the Company requires the Selling
Stockholder (as defined in the Registration Agreement) not to make any sale of
Eligible Securities (as defined in the Registration Agreement) pursuant to the
Resale Registration at any time within the 30-day period prior to the expiration
of the Exercise Period, and this Warrant has not previously been exercised
in full, the Exercise Period will be extended until such time as the Selling
Stockholder is again entitled to sell Eligible Securities pursuant to the Resale
Registration and for 30 continuous days thereafter.
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) if this Warrant is not registered in the name of the Purchaser, an
Assignment or Assignments in the form set forth in Exhibit I hereto
evidencing the permitted assignment of this Warrant to the Purchaser, in
which case the Registered Holder shall have complied with the provisions
set forth in Section 5 hereof; and
(d) 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 the 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, but in any event, within
ten (10) business days 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, but in
any event, within ten (10) business days after the Exercise Time, 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
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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 of Common Stock issuable
upon the exercise of this Warrant. 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 2.B. 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 legends:
"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 II 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
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registered, the Exercise Agreement shall also state the name of the person to
whom the shares of Common Stock are to be issued, and if the number of shares of
Common Stock to be issued does not include all the shares of Common Stock
purchasable hereunder, it shall also state the name of the permitted person to
whom a new Warrant for the unexercised portion of the rights hereunder is to be
delivered. 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.
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.
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Section 4. Transferability. This Warrant and all rights hereunder are not
transferable, in whole or in part, without the prior written consent of the
Company in its sole discretion; provided, however, that notwithstanding the
foregoing, AT&T shall be entitled to transfer this Warrant or any rights
hereunder, in whole or in part, without the consent of, or prior notice to, the
Company (it being agreed that AT&T shall give written notice to the Company of
any such transfer within a reasonable time after such transfer): (i) in
connection with or as part of any portfolio sale or any sale of all or
substantially all of the assets of AT&T, or (ii) in connection with or as part
of any merger, consolidation or similar transaction involving AT&T.
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, 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 at
00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000, Attn: General Counsel, 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, one business day 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. Any party may change
the address to which notices hereunder are to be sent to it by giving written
notice of such change of address in the manner herein provided for giving
notice.
Section 8. Amendment and Waiver. Except as otherwise provided herein, the
provisions of this Warrant 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 this Warrant representing a
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majority of the shares of Common Stock obtainable upon exercise of this Warrant;
provided that no such action may change the Exercise Price of this Warrant or
the number or class of shares of Common Stock obtainable upon exercise of this
Warrant without the written consent of all of the Registered Holders of this
Warrant.
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.
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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.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Its: Senior Vice President
[Corporate Seal]
Attest:
/s/ J. Xxxxxx Xxxxxx
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Assistant Secretary
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ASSIGNMENT
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FOR VALUE RECEIVED, _________________________________ hereby sells, assigns
and transfers without recourse, representation or warranty all of the rights of
the undersigned under the attached Warrant (Certificate No. _____________) with
respect to the number of shares of Common Stock covered thereby set forth below,
unto:
Names of Assignee Address Number of Shares
----------------- ------- ----------------
Dated: Signature ______________________________
Witness ________________________________
EXERCISE AGREEMENT
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To: Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. ___________), 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 ________________________________
