FORM OF WARRANT AGREEMENT
PARTIES:
Buffalo Wild Wings, Inc. ("Company")
1919 Interchange Tower
000 Xxxxx Xxxxxxx 000
Xxxxxxxxxxx, XX 00000
Norwest Bank Minnesota, N.A. ("Warrant Agent")
Shareholder Services
000 Xxxxx Xxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxx Xx. Xxxx, XX 00000-0000
DATE:________________, 1998
RECITALS:
A. The Company proposes to issue up to 1,725,000 Common Stock Purchase
Warrants (the "Warrants") evidencing the right to purchase an aggregate of up to
1,725,000 authorized but previously unissued shares of Common Stock, no par
value, of the Company (the "Common Stock"). The Warrants would be issued in
connection with the issuance by the Company of up to 1,725,000 Units, each Unit
consisting of one share of Common Stock and one Warrant to purchase one share of
Common Stock, in connection with the Company's Registration Statement on Form
SB-2.
B. The Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent desires so to act, in connection with the issuance,
registration, transfer, exchange and exercise of the Warrants.
AGREEMENT:
The Company and the Warrant Agent, each intending to be legally bound,
hereby covenant and agree as follows:
ARTICLE I.
APPOINTMENT OF WARRANT AGENT; ISSUANCE,
FORM AND EXECUTION OF WARRANT CERTIFICATES
SECTION 1.1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints
the Warrant Agent to act as agent for the Company, and the Warrant Agent hereby
accepts the agency established herein and agrees to perform its agency duties in
accordance with the terms and conditions of this Warrant Agreement.
SECTION 1.2. WARRANT CERTIFICATES. The Company shall execute and deliver
to the Warrant Agent certificates which the Company has authorized to represent
the Warrants ("Warrant Certificates"). The Warrant Certificates shall be
substantially as set forth in Exhibit A hereto and may have such legends,
summaries or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Warrant Agreement, or as may be required to comply with any law or with any
rule or regulation relating to the listing of the Warrants on the Nasdaq
National Market, the Nasdaq SmallCap Market or any stock exchange or
over-the-counter market, or to conform to usage. The Warrant Certificates shall
be dated with the date of their issuance.
SECTION 1.3 EXECUTION OF WARRANT CERTIFICATES. The Warrant Certificates
shall be executed on behalf of the Company by a duly authorized officer of the
Company, either manually or by facsimile signature printed thereon. The Warrant
Certificates shall be manually countersigned by the Warrant Agent and shall not
be valid for any purpose unless so countersigned. Any Warrant Certificate may
be signed on behalf of the Company by the person who at the actual date of the
signing of such Warrant Certificate shall have been the proper officer of the
Company, although at the date of issuance of such Warrant Certificate any such
person shall not be such officer of the Company.
ARTICLE II.
EXERCISE OF WARRANTS
SECTION 2.1. EXERCISE. Any or all of the Warrants represented by each
Warrant Certificate may be exercised by the holder thereof on or before _______
p.m., Minneapolis time, on ________________, 2002, by surrender of the Warrant
Certificate with the Exercise Form (which is printed on the reverse thereof) or
a reasonable facsimile thereof duly executed by such holder, to the Warrant
Agent at its principal office in Minneapolis, Minnesota, accompanied by payment,
in cash or by certified or official bank check payable to the order of the
Company, in an amount equal to the product of the number of shares of Common
Stock issuable upon exercise of the Warrant represented by such Warrant
Certificate, as adjusted pursuant to the provisions of Article III hereof,
multiplied by the exercise price of $8.00, as adjusted pursuant to the
provisions of Article III hereof (such price as so adjusted from time to time
being herein called the "Exercise Price"), and such holder shall be entitled to
receive such number of fully paid and nonassessable shares of Common Stock, as
so adjusted, at the time of such exercise.
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SECTION 2.2. TIME OF EXERCISE. Each exercise of Warrants shall be
deemed to have been effective immediately prior to the close of business on the
business day on which the Warrant Certificate relating to such Warrants shall
have been surrendered to the Warrant Agent as provided in Section 2.1, and at
such time the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such exercise as
provided in Section 2.3, shall be deemed to have become the holder or holders of
record thereof.
SECTION 2.3. ISSUANCE OF SHARES OF COMMON STOCK; NO FRACTIONAL SHARES. As
soon as practicable after the exercise of any Warrant, and in any event within
ten (10) days after receipt by the Company of the notice of exercise under
Section 2.1, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
the holder thereof or as such holder (upon payment by such holder of any
applicable transfer taxes) may direct,
(a) a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such holder shall be entitled
upon such exercise plus, in lieu of any fractional share to which such
holder would otherwise be entitled, an amount in cash equal to such
fraction multiplied by the then current value of a share of Common Stock,
such current value to be determined as follows:
(i) if the Common Stock shall be listed or admitted to unlisted
trading privileges on any national securities exchange, or listed on
the Nasdaq National Market or Nasdaq SmallCap Market then such current
value shall be computed on the basis of the last reported sale price
of the Common Stock on such exchange or market on the last business
day prior to the date of the exercise of such Warrant upon which a
sale shall have been effected, or in the event such last reported sale
is unavailable, the average of the closing bid and asked prices on the
last business day prior to the date of exercise of such Warrant; or
(ii) if the Common Stock shall not be so listed or admitted to
unlisted trading privileges and bid and asked prices therefor in the
over-the-counter market shall be reported by a recognized reporting
agency, then such current value shall be computed on the basis of the
average mean of such bid and asked prices on the last business day
prior to the date of the exercise of such Warrant as so reported; or
(iii) if the Common Stock shall be listed or admitted to unlisted
trading privileges on more than one national securities exchange or
Nasdaq market or in the over-the-counter market, then such current
value shall, if different as a result of calculation under the
applicable method(s) described above in this Section, be deemed to be
the higher number calculated in connection therewith; or
(iv) if the Common Stock shall not be so listed or admitted to
unlisted trading privileges and such bid and asked prices shall not be
so reported, then such current value shall be computed on the basis of
the book value of Common Stock as of the close of business on the last
day of the month immediately preceding the date upon which such
Warrant was exercised, as determined by the Company, and
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(b) in case such exercise includes only part of the Warrants
represented by any Warrant Certificate, a new Warrant Certificate or
Warrant Certificates of like tenor, calling in the aggregate on the face or
faces thereof for the number of shares of Common Stock equal (without
giving effect to any adjustment therein) to the number of such shares
called for on the face of such Warrant Certificate minus the number of such
shares designated by the holder for such exercise as provided in Section
2.1. Warrants, represented by a properly assigned Warrant Certificate, may
be exercised by a new holder without first having a new Warrant Certificate
issued.
SECTION 2.4. EXTENSION OF EXERCISE PERIOD; CHANGE OF EXERCISE PRICE. The
Company may, upon notice given to the Warrant Agent, and without the consent of
the holders of the Warrant Certificates, (i) reduce the Exercise Price during
the originally stated exercise period or (ii) extend the period over which the
Warrants are exercisable beyond ___________________, 2002 and decrease, increase
or retain the Exercise Price for any period the Warrant exercise period is
extended. In the case of the extension of the exercise period or a change in
the Exercise Price, the Company must provide the Warrant Agent and the
Warrantholders of record notice of such change a reasonably time prior to the
date such extension or new Exercise Price is to take effect. Such reasonable
time shall be commercially reasonable and consistent with applicable securities
laws and regulations. The notice shall specify, as the case may be, the time to
which such exercise period is extended or the new Exercise Price and the periods
for which such new Exercise Price is in effect.
ARTICLE III.
ANTIDILUTION PROVISIONS
SECTION 3.1. ADJUSTMENT OF EXERCISE PRICE.
(a) The Exercise Price shall be subject to the following adjustments.
In the event that:
(i) any dividends on any class of stock of the Company payable
in Common Stock or securities convertible into Common Stock shall be
paid by the Company;
(ii) the Company shall subdivide its then outstanding shares of
Common Stock into a greater number of shares; or
(iii) the Company shall combine outstanding shares of Common
Stock, by reclassification or otherwise;
then, in any such event, the Exercise Price in effect immediately prior to
such event shall (until adjusted again pursuant hereto) be adjusted
immediately after such event to a price (calculated to the nearest full
cent) determined by dividing (a) the number of shares of Common Stock
outstanding immediately prior to such event, multiplied by the then
existing Exercise Price, by (b) the total number of shares of Common Stock
outstanding
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immediately after such event (including the maximum number of shares of
Common Stock issuable in respect of any securities convertible into Common
Stock), and the resulting quotient shall be the adjusted Exercise Price per
share.
(b) No adjustment of the Exercise Price shall be made if the amount
of such adjustments shall be less than $0.01 per share, but in such case
any adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time and together with the next
subsequent adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to not less than $.05 per share.
SECTION 3.1. ADJUSTMENT OF NUMBER OF SHARES PURCHASABLE ON EXERCISE OF
WARRANTS. Upon each adjustment of the Exercise Price pursuant to Section 3.1
above, the registered holder of each Warrant shall thereafter (until another
such adjustment) be entitled to purchase at the adjusted Exercise Price the
number of shares, calculated to the nearest full share, obtained by multiplying
the number of shares specified in such Warrant (as adjusted as a result of all
adjustments in the Exercise Price in effect prior to such adjustment) by the
Exercise Price in effect prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
SECTION 3.3. NOTICE AS TO ADJUSTMENT. Upon any adjustment of the Exercise
Price and an increase or decrease in the number of shares of Common Stock
purchasable upon the exercise of the Warrants, then, and in each such case, the
Company shall within ten (10) days after the effective date of such adjustment
give written notice thereof, by first class mail, postage prepaid, addressed to
each registered Warrantholder at the address of such Warrantholder as shown on
the books of the Company, which notice shall state the adjusted Exercise Price
and the increased or decreased number of shares purchasable upon the exercise of
the Warrants, setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
SECTION 3.4. EFFECT OF REORGANIZATION, RECLASSIFICATION, MERGER, ETC. If
at any time while any Warrant is outstanding there should be any capital
reorganization or reclassification of the capital stock of the Company (other
than the issue of any shares of Common Stock in subdivision of outstanding
shares of Common Stock by reclassification or otherwise and other than a
combination of shares provided for in Section 3.1 hereof) or any consolidation
or merger of the Company with another corporation or any sale, conveyance, lease
or other transfer by the Company of all or substantially all of its property to
any other corporation, the holder of any Warrant shall thereafter be entitled to
receive the number of shares of stock or other securities or property of the
Company, or of the successor corporation resulting from such consolidation or
merger or of the corporation to which the property of the Company has been sold,
conveyed, leased or otherwise transferred, as the case may be, to which the
Common Stock (and any other securities and property) of the Company, deliverable
upon the exercise of such Warrant, would have been entitled upon such capital
reorganization, reclassification of capital stock, consolidation, merger, sale,
conveyance, lease or other transfer if such Warrant had been exercised
immediately prior to such capital reorganization, reclassification of capital
stock, consolidation, merger, sale, conveyance, lease or other transfer; and, in
any such case, appropriate adjustment (as determined by the Board of Directors
of the Company) shall be made in the application of the provisions set forth in
this Warrant Agreement with respect to the rights and interests thereafter of
the Warrantholders to the end that the provisions set forth in this Warrant
Agreement (including the adjustment of the
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Exercise Price and the number of shares issuable upon the exercise of the
Warrants) shall thereafter be applicable, as near as reasonably may be, in
relation to any shares or other property thereafter deliverable upon the
exercise of the Warrants as if the Warrants had been exercised immediately prior
to such capital reorganization, reclassification of capital stock, such
consolidation, merger, sale, conveyance, lease or other transfer and the
Warrantholders had carried out the terms of the exchange as provided for by such
capital reorganization, reclassification, consolidation or merger. The Company
shall not effect any such capital reorganization, consolidation, merger or
transfer unless, upon or prior to the consummation thereof, the successor
corporation or the corporation to which the property of the Company has been
sold, conveyed, leased or otherwise transferred shall assume by written
instrument the obligation to deliver to the holder of each Warrant such shares
of stock, securities, cash or property as in accordance with the foregoing
provisions such holder shall be entitled to purchase.
SECTION 3.5. PRIOR NOTICE AS TO CERTAIN EVENTS. In case at any time:
(a) The Company shall pay any dividend upon its Common Stock payable
in stock or make any distribution (other than cash dividends) to the
holders of its Common Stock; or
(b) The Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or any
other rights; or
(c) There shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with, or sale, conveyance, lease or other transfer of all or substantially
all of its assets to, another corporation; or
(d) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then in any one or more of such cases, the Company shall give prior written
notice, by first class mail, postage prepaid, addressed to each registered
Warrantholder at the address of such Warrantholder as shown on the books of the
Company, of the date on which (a) the books of the Company shall close or a
record shall be taken for such stock dividend, distribution or subscription
rights or (b) such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up shall take place, as the case may
be. Such notice shall also specify the date as of which the holders of the
Common Stock of record shall participate in said dividend, distribution or
subscription rights or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up, as the case may be. Such written notice shall be given at least
twenty (20) days prior to the action in question and not less than twenty (20)
days prior to the record date or the date on which the Company's transfer books
are closed in respect thereto.
SECTION 3.6. CERTAIN OBLIGATIONS OF THE COMPANY. The Company will not, by
amendment of its Articles of Incorporation or through any reorganization,
transfer of assets, consolidation,
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merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant Agreement or the Warrant Certificate, but will at all times in good
faith assist in the carrying out of all such terms. Without limiting the
generality of the foregoing, the Company (a) will not establish a par value for
the shares of any stock which are at the time issuable upon exercise of any
Warrant above the then prevailing Exercise Price and before taking any action
which would cause an adjustment of the Exercise Price below the then par value
of the shares of any stock issuable upon exercise of any Warrant, will take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of such stock upon
the exercise of all Warrants from time to time outstanding, and (b) will not (i)
transfer all or substantially all of its properties and assets to any other
person or entity, or (ii) consolidate with or merge into any other entity where
the Company is not the continuing or surviving entity, or (iii) permit any other
entity to consolidate with or merge into the Company where the Company is the
continuing or surviving entity but, in connection with such consolidation or
merger, the Common Stock then issuable upon the exercise of the Warrants shall
be changed into or exchanged for shares or other securities or property of any
other entity unless, in any such case, the other entity acquiring such
properties and assets, continuing or surviving after such consolidation or
merger or issuing or distributing such shares or other securities or property,
as the case may be, shall expressly assume in writing and be bound by all the
terms of this Warrant Agreement and the Warrant Certificates.
SECTION 3.7. RESERVATION AND LISTING OF COMMON STOCK. The Company will at
all times reserve and keep available, solely for issuance and delivery upon the
exercise of the Warrants, all shares of Common Stock from time to time issuable
upon such exercise. All such shares shall be authorized and, when issued upon
such exercise, shall be validly issued, fully paid and nonassessable with no
liability on the part of the holder thereof. The Company, at its expense, will
list on each national securities exchange on which any Common Stock may at any
time be listed, subject to official notice of issuance, and will maintain such
listing of, the shares of Common Stock from time to time issuable upon the
exercise of the Warrants.
SECTION 3.8. REGISTRATION OR EXEMPTION FOR COMMON STOCK. The Company
will use its best efforts to, at all times the Warrants are exercisable, (i)
maintain an effective registration statement under the Securities Act of
1933, as amended (the "Act"), covering Common Stock issuable upon exercise of
the Warrants, or shall qualify for exemption from the registration
requirements of the Act the Common Stock issuable upon exercise of the
Warrants, and (ii) maintain exemptions or qualifications, in those
jurisdictions in which the Units were initially sold, to permit the exercise
of the Warrants and the issuance of the Common Stock pursuant to such
exercise. The Warrant Agent shall have no responsibility for the maintenance
of such exemptions or qualifications or for liabilities arising from the
exercise or attempted exercise of Warrants in jurisdictions where exemptions
or qualifications have not been maintained or are otherwise unavailable.
ARTICLE IV.
REDEMPTION OF WARRANTS
SECTION 4.1. REDEMPTION PRICE. The Warrants may be redeemed at the option
of the Company as a whole or in part at any time 90 days after the date hereof
following a period of 20
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consecutive trading days where the closing bid price of the Common Stock exceeds
$9.25, on notice given not more than 15 trading days following such period, as
set forth in Section 4.2. The redemption price shall equal $0.01 per Warrant.
For purposes of this Section, the closing bid price of the Common Stock shall be
determined by the closing bid price as reported by Nasdaq so long as the Common
Stock is quoted on Nasdaq and, if the Common Stock is listed on a national
securities exchange, shall be determined by the last reported sale price on the
primary exchange on which the Common Stock is traded.
SECTION 4.2. NOTICE OF REDEMPTION. In the case of any redemption of
Warrants, the Company or, at its request, the Warrant Agent in the name of and
at the expense of the Company shall give notice of such redemption to the
holders of the Warrants to be redeemed as hereinafter provided in this
Section 4.2. Notice of redemption to the holders of Warrants shall be given by
mailing by first-class mail a notice of such redemption not less than 30 days
prior to the date fixed for redemption. Any notice which is given in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the holder receives the notice. In any case, failure duly to give such
notice, or any defect in such notice, to the holder of any Warrant Certificate
shall not affect the validity of the proceedings for the redemption of Warrants
represented by any other Warrant Certificate. Each such notice shall specify
the date fixed for redemption, the place of redemption and the redemption price
of $0.01 at which each Warrant is to be redeemed, and shall state that payment
of the redemption price of the Warrants will be made on surrender of the
Warrants at said place of redemption, and that after said date, the exercise
rights of the Warrants identified for redemption shall expire. Such notice
shall also state the current Exercise Price and the date on which the right to
exercise the Warrants will expire unless extended by the Company.
SECTION 4.3. PAYMENT OF WARRANTS ON REDEMPTION; DEPOSIT OF REDEMPTION
PRICE. If notice of redemption shall have been given as provided in Section
4.2, the redemption price of $0.01 per Warrant shall, unless the Warrant is
theretofore exercised pursuant to the terms hereof, become due and payable on
the date and at the place stated in such notice. On and after such date of
redemption, provided that cash sufficient for the redemption thereof shall then
be deposited by the Company with the Warrant Agent for that purpose, the
exercise rights of the Warrants identified for redemption shall expire. On
presentation and surrender of Warrant Certificates at said place of payment in
said notice specified, the Warrants identified for redemption shall be paid and
redeemed at the redemption price of $0.01 per Warrant. Prior to the date fixed
for redemption, the Company shall deposit with the Warrant Agent an amount of
money sufficient to pay the redemption price of all the Warrants identified for
redemption. Any moneys which shall have been deposited with the Warrant Agent
for redemption of Warrants and which are not required for that purpose by reason
of exercise of Warrants shall be repaid to the Company upon delivery to the
Warrant Agent of evidence satisfactory to it of such exercise.
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ARTICLE V.
CERTAIN OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
SECTION 5.1. NO RIGHTS OF SHAREHOLDERS. The Warrant Certificates shall be
issued in registered form only. No Warrant Certificate shall entitle the holder
thereof to any of the rights of a holder of shares of Common Stock of the
Company, including, without limitation, the right to vote, to receive dividends
and other distributions, or to receive any notice of, or to attend, meetings of
holders of Common Stock or any other proceedings of the Company.
SECTION 5.2. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
CERTIFICATES. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to the Warrant Agent of the loss, theft, destruction or mutilation
of any Warrant Certificate, and (i) in the case of any such loss, theft, or
destruction, upon delivery to the Warrant Agent of an indemnity bond in form and
amount, and issued by a bonding company, reasonably satisfactory to the Company,
or (ii) in the case of any such mutilation, upon surrender to and cancellation
by the Warrant Agent of such Warrant Certificate, the Company at its expense
will execute and cause the Warrant Agent to countersign and deliver, in lieu
thereof, a new Warrant Certificate of like tenor.
SECTION 5.3. TRANSFER AGENT; CANCELLATION OF WARRANT CERTIFICATES;
UNEXERCISED WARRANTS. Norwest Bank Minnesota, N.A. (and any successor), as
transfer agent (the "Transfer Agent"), is hereby irrevocably authorized and
directed at all times to reserve such number of authorized and unissued shares
of Common Stock as shall be sufficient to permit the exercise in full of all
Warrants from time to time outstanding. The Company will keep a copy of this
Agreement on file with the Transfer Agent. The Warrant Agent, and any successor
thereto, is hereby irrevocably authorized to requisition from time to time from
the Transfer Agent certificates for shares of Common Stock required for exercise
of Warrants. The Company will supply the Transfer Agent with duly executed
certificates for shares of Common Stock for such purpose and will make available
any cash required in settlement of fractional share interests. All Warrant
Certificates surrendered upon the exercise or redemption of Warrants shall be
cancelled by the Warrant Agent and shall thereafter be delivered to the Company;
such cancelled Warrant Certificates, with the Exercise Form on the reverse
thereof duly filled in and signed, shall constitute conclusive evidence as
between the parties hereto of the numbers of shares of Common Stock which shall
have been issued upon exercises of Warrants. Promptly after the last day on
which the Warrants are exercisable (set forth in Section 2.1 above), the Warrant
Agent shall certify to the Company the aggregate number of Warrants then
outstanding and unexercised. No shares of Common Stock shall be subject to
reservation with respect to Warrants not exercised prior to the time and date
identified in Section 2.1 above as the last time and date at which Warrants may
be exercised.
ARTICLE VI.
TRANSFER AND EXCHANGE OF WARRANT CERTIFICATES
SECTION 6.1. WARRANT REGISTER; TRANSFER OR EXCHANGE OF WARRANT
CERTIFICATES. The Warrant Agent shall cause to be kept at the principal office
of the Warrant Agent a register (the "Warrant
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Register") in which, subject to such reasonable regulations as the Company may
prescribe, provisions shall be made for the registration of transfers and
exchanges of Warrant Certificates. Upon surrender for transfer or exchange of
any Warrant Certificates, properly endorsed, to the Warrant Agent, the Warrant
Agent at the Company's expense will issue and deliver to or upon the order of
the holder thereof a new Warrant Certificate or Warrant Certificates of like
tenor, in the name of such holder or as such holder (upon payment by such holder
of any applicable transfer taxes) may direct, calling in the aggregate on the
face or faces thereof for the number of shares of Common Stock called for on the
face of the Warrant Certificate so surrendered. Any Warrant Certificate
surrendered for transfer or exchange shall be cancelled by the Warrant Agent and
shall thereafter be delivered to the Company.
SECTION 6.2. IDENTITY OF WARRANTHOLDERS. Until a Warrant Certificate is
transferred in the Warrant Register, the Company and the Warrant Agent may treat
the person in whose name the Warrant Certificate is registered as the absolute
owner thereof and of the Warrants represented thereby for all purposes,
notwithstanding any notice to the contrary, except that, if and when any Warrant
Certificate is properly assigned in blank, the Company and the Warrant Agent may
(but shall not be obligated to) treat the bearer thereof as the absolute owner
of the Warrant Certificate and of the Warrants represented thereby for all
purposes, notwithstanding any notice to the contrary.
ARTICLE VII.
CONCERNING THE WARRANT AGENT
SECTION 7.1. TAXES. The Company will, from time to time, promptly pay to
the Warrant Agent, or make provision satisfactory to the Warrant Agent for the
payment of, all taxes and charges that may be imposed by the United States or
any State upon the Company or the Warrant Agent upon the transfer or delivery
of shares of Common Stock upon the exercise of Warrants, but the Company shall
not be obligated to pay any tax imposed in connection with any transfer involved
in the delivery of a certificate for shares of Common Stock in any name other
than that of the registered holder of the Warrant Certificate surrendered in
connection with the purchase thereof.
SECTION 7.2. REPLACEMENT OF WARRANT AGENT IN CERTAIN CIRCUMSTANCES.
(a) The Warrant Agent may resign its duties and be discharged from
all further duties and liabilities hereunder after giving 30 days notice in
writing to the Company, except that such shorter notice may be given as the
Company shall, in writing, accept as sufficient. The Company may discharge
the Warrant Agent at any time with or without reason, effective upon 30
days written notice to the Warrant Agent or such shorter period as the
Warrant Agent shall, in writing, accept as sufficient. If the office of
Warrant Agent becomes vacant by resignation, discharge, incapacity to act
or otherwise, the Company shall appoint in writing a new 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 the holder of a Warrant
Certificate, then the holder of any Warrant Certificate may apply to any
court of competent jurisdiction for the appointment of a new Warrant Agent.
Any new Warrant
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Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United and
good standing under the laws of its state of incorporation and is
authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by Federal or State authority. Any
new Warrant Agent appointed hereunder shall execute, acknowledge and
deliver to the Company an instrument accepting such appointment hereunder
and thereupon such new Warrant Agent without any further act or deed shall
become vested with all the rights, powers, duties and responsibilities of
the Warrant Agent hereunder with like effect as if it had been named as the
Warrant Agent; but if for any reason it becomes necessary or expedient to
have the former Warrant Agent execute and deliver any further assurance,
conveyance, act or deed, the same shall be done and shall be legally and
validly executed and delivered by the former Warrant Agent. Not later than
the effective date of any such appointment the Company shall file notice
thereof with the former Warrant Agent. The Company shall promptly give
notice of any such appointment to the holders of the Warrant Certificates
by mail to their addresses as shown in the Warrant Register. Failure to
file or give such notice, or any defect therein, shall not affect the
legality or validity of the appointment of the successor Warrant Agent.
(b) Any company into which the Warrant Agent or any new Warrant Agent
may be merged or converted or with which it may be consolidated or any
company resulting from any merger, conversion or consolidation to which the
Warrant Agent or any new Warrant Agent shall be a party shall be the
successor Warrant Agent under this Warrant Agreement without any further
act; provided that if such company would not be eligible for appointment as
a successor Warrant Agent under the provisions of paragraph (a) of this
Section 7.2 the Company shall forthwith appoint a new Warrant Agent in
accordance with such provisions. Any such successor Warrant Agent may
adopt the prior countersignature of any predecessor Warrant Agent and
deliver Warrant Certificates countersigned and not delivered by such
predecessor Warrant Agent or may countersign Warrant Certificates either in
the name of any predecessor Warrant Agent or the name of the successor
Warrant Agent.
SECTION 7.3. REMUNERATION OF WARRANT AGENT. The Company will pay the
Warrant Agent reasonable remuneration for its services as Warrant Agent
hereunder and will reimburse the Warrant Agent upon demand for all expenditures
that the Warrant Agent may reasonably incur in the execution of its duties
hereunder.
SECTION 7 4. FURTHER ASSURANCES. The Company will perform, exercise,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
by the Warrant Agent of the provisions of this Warrant Agreement.
SECTION 7.5. LIMITATIONS ON LIABILITIES OF THE WARRANT AGENT.
(a) The Warrant Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be
full and complete
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authorization and protection of the Warrant Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion.
(b) Whenever, in the performance of its duties under this Warrant
Agreement, the Warrant Agent shall deem it necessary or desirable that any
matter be proved or established, or that any instructions with respect to
the performance of its duties hereunder be given, by the Company prior to
taking or suffering any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established, or such instructions may
be given, by a certificate or instrument signed by an officer of the
Company and delivered to the Warrant Agent; and such certificate or
instrument shall be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this Warrant
Agreement in reliance upon such certificate or instrument; but in its
discretion the Warrant Agent may in lieu thereof accept other evidence of
such matter or may require such further or additional evidence as it may
deem reasonable.
(c) The Warrant Agent shall be liable hereunder only for its own
negligence or willful misconduct. The Warrant Agent shall act hereunder
solely as agent, and its duties shall be determined solely by the
provisions hereof. The Company agrees 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 Warrant Agreement except as a result of the
Warrant Agent's negligence or willful misconduct.
(d) The Warrant Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Warrant Agreement or
in the Warrant Certificates (except its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Company only.
(e) The Warrant Agent shall not be under any responsibility in
respect to the validity or execution of any Warrant Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Warrant
Agreement or in any Warrant Certificate; nor shall it be responsible for
the making of any adjustment in the Exercise Price, or number of shares
issuable upon exercise of the Warrant Certificates or responsible for the
manner, method or amount of any such adjustment or the facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization or reservation
of any shares of Common Stock to be issued pursuant to this Warrant
Agreement or any Warrant Certificate or as to whether any shares of Common
Stock or other securities are or will be validly authorized and issued and
fully paid and nonassessable.
SECTION 7.6. AMENDMENT AND MODIFICATION. The Warrant Agent may, without
the consent or concurrence of the holders of the Warrant Certificates, by
supplemental agreement or otherwise, join with the Company in making any changes
or corrections in this Warrant Agreement that they
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shall have been advised by counsel (i) are required to cure any ambiguity or to
correct any defective or inconsistent provision or clerical omission or mistake
or manifest error herein contained, (ii) add to the obligations of the Company
in this Warrant Agreement further obligations thereafter to be observed by it,
or surrender any right or power reserved to or conferred upon the Company in
this Warrant Agreement, or (iii) do not or will not adversely affect, alter or
change the rights, privileges or immunities of the holders of Warrant
Certificates not provided for under this Warrant Agreement; provided, however,
that any term of this Warrant Agreement or any Warrant Certificate may be
changed, waived, discharged or terminated by an instrument in writing signed by
each party against which enforcement of such change, waiver, discharge or
termination is sought, or by which the same is to be performed or observed.
ARTICLE VIII.
OTHER MATTERS
SECTION 8.1. SUCCESSORS AND ASSIGNS. All the covenants and provisions of
this Warrant 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.
SECTION 8.2. NOTICES. Any notice or demand authorized by this Warrant
Agreement to be given or made by the Warrant Agent or by the holder of any
Warrant Certificate to or on the Company shall be sufficiently given or made if
sent by first class or registered mail, postage prepaid, addressed to the
address set forth on the first page hereof (until another address is filed in
writing by the Company with the Warrant Agent).
Any notice or demand authorized by this Warrant Agreement to be given or made by
the holder of any Warrant Certificate or by the Company to or on the Warrant
Agent shall be sufficiently given or made if sent by first class or registered
mail, postage prepaid, addressed to the address set forth on the first page
hereof (until another address is filed in writing by the Warrant Agent with the
Company).
SECTION 8.3. GOVERNING LAW. This Warrant Agreement and the Warrant
Certificates are being delivered in the State of Minnesota and shall be
construed and enforced in accordance with and governed by the laws of such
State.
SECTION 8.4. NO BENEFITS CONFERRED. Nothing in this Warrant Agreement
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, the Warrant Agent, and the holders of the
Warrant Certificates, any right, remedy or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement
herein; and all covenants, conditions, stipulations, promises and agreements in
this Warrant Agreement contained shall be for the sole and exclusive benefit of
the Company, the Warrant Agent, their respective successors and the holders of
the Warrant Certificates.
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SECTION 8.5. HEADINGS. The descriptive headings used in this Warrant
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by the
parties hereto as of the day and year first above written.
BUFFALO WILD WINGS, INC.
By
------------------------------------
Its
-------------------------
NORWEST BANK MINNESOTA, N.A.
By
------------------------------------
Its
-------------------------
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EXHIBIT A
No. __________ Certificate for ______ Warrants
THIS WARRANT CERTIFICATE MAY BE
TRANSFERRED SEPARATELY FROM THE COMMON STOCK CERTIFICATE
WITH WHICH IT IS INITIALLY ISSUED AFTER __________, 1998
EXERCISABLE ON OR BEFORE, AND VOID AFTER,
______ P.M. MINNEAPOLIS TIME _____________________, 2002
WARRANTS TO PURCHASE COMMON STOCK OF
BUFFALO WILD WINGS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MINNESOTA
CUSIP #_____________
THIS CERTIFIES that _________________________________________ or assigns, is the
owner of the number of Warrants set forth above, each of which represents the
right to purchase from Buffalo Wild Wings, Inc., a Minnesota corporation (herein
called the "Company"), at any time on or before ______ p.m., Minneapolis time,
on _______________, 2002, upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement hereinafter referred to, one share
(subject to adjustments referred to below) of the Common Stock, no par value, of
the Company (such shares or other securities or property purchasable upon
exercise of the Warrants being herein called the "Shares"), by surrendering this
Warrant Certificate, with the Purchase Form on the reverse side duly executed,
at the principal office of Norwest Bank Minnesota, N.A., or its successor, as
warrant agent (the "Warrant Agent"), and by paying in full, in cash or by
certified or official bank check payable to the order of the Company, the
exercise price of $8.00 as adjusted from time to time in accordance with the
terms of the Warrant Agreement.
Upon any exercise or redemption of less than all the Warrants evidenced by
this Warrant Certificate, there shall be issued to the holder a new Warrant
Certificate in respect of the Warrants as to which this Warrant Certificate was
not exercised or redeemed.
Upon the surrender for transfer or exchange hereof, properly endorsed, to
the Warrant Agent, the Warrant Agent at the Company's expense will issue and
deliver to the order of the holder hereof, a new Warrant Certificate or Warrant
Certificates of like tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face hereof.
The Warrant Certificates are issued only as registered Warrant
Certificates. Until this Warrant Certificate is transferred in the Warrant
Register, the Company and the Warrant Agent may treat the person in whose name
this Warrant Certificate is registered as the absolute owner
hereof and of the Warrants represented hereby for all purposes, notwithstanding
any notice to the contrary.
This Warrant Certificate is issued under the Warrant Agreement dated as of
___________________, 1998 between the Company and the Warrant Agent and is
subject to the terms and provisions contained in said Warrant Agreement, to all
of which terms and provisions the registered holder of this Warrant Certificate
consents by acceptance hereof. Copies of said Warrant Agreement are on file at
the principal office of the Warrant Agent in Minneapolis, Minnesota, and may be
obtained by writing to the Warrant Agent.
The number of Shares receivable upon the exercise of the Warrants
represented by this Warrant Certificate and the exercise price per share are
subject to adjustment upon the happening of certain events specified in the
Warrant Agreement (which provisions are contained in Article III of the Warrant
Agreement and are hereby incorporated by reference).
No fractional shares of the Company's Common Stock will be issued upon the
exercise of Warrants. As to any final fraction of a share which a holder of
Warrants exercised in the same transaction would otherwise be entitled to
purchase on such exercise, the Company shall pay a cash adjustment in lieu of
any fractional share determined as provided in the Warrant Agreement.
The Warrants may be redeemed, in whole or in part, at the option of the
Company, at any time following a period of 20 consecutive trading days where the
closing bid price of the Common Stock exceeds $9.25, on notice as set forth in
the Warrant Agreement, and at a redemption price equal to $0.01 per Warrant. If
notice of redemption shall have been given as provided in the Warrant Agreement
and cash sufficient for the redemption be deposited by the Company for that
purpose, the exercise rights of the Warrants identified for redemption shall
expire at the close of business on such date of redemption unless extended by
the Company.
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of Common Stock of the Company, including, without
limitation, the right to vote, to receive dividends and other distributions, to
exercise any preemptive right, or to receive any notice of, or to attend
meetings of holders of Common Stock or any other proceedings of the Company.
This Warrant Certificate shall be void and the Warrants and any rights
represented hereby shall cease unless exercised on or before ______ p.m.
Minneapolis time on _______________, 2002.
This Warrant Certificate shall not be valid for any purpose until it shall
have been countersigned by the Warrant Agent.
-2-
WITNESS the facsimile signature of the Company's duly authorized officers.
BUFFALO WILD WINGS, INC.
Dated: By
------------------------------------
Its
-----------------------------------
COUNTERSIGNED AND REGISTERED:
NORWEST BANK MINNESOTA, N.A.
as Warrant Agent
By
------------------------------------
Its
-----------------------------------
-3-
[REVERSE OF WARRANT CERTIFICATE]
TO: Buffalo Wild Wings, Inc.
c/o Norwest Bank Minnesota, N.A.
Warrant Agent
PURCHASE FORM
(To be Executed by the Registered Holder
in Order to Exercise Warrant Certificates)
The undersigned hereby irrevocably elects to exercise ______________* of
the Warrants represented by the Warrant Certificate and to purchase for cash the
Shares issuable upon the exercise of said Warrants and requests that
certificates for such Shares shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR ------------------------------
OTHER IDENTIFYING NUMBER OF REGISTERED
HOLDER OF CERTIFICATE ------------------------------
------------------------------------------
(Print Name)
------------------------------------------
(Address)
------------------------------------------
Dated:
------------------- ------------------------------------------
(Signature)
*Insert here the number of Warrants evidenced on the face of this Warrant
Certificate (or, in the case of a partial exercise, the portion thereof being
exercised), in either case without making any adjustment for additional Common
Stock or any other securities or property or cash which, pursuant to the
adjustment provisions referred to in this Warrant Certificate, may be
deliverable upon exercise.
ASSIGNMENT FORM
(To be Executed by the Registered Holder
in Order to Transfer Warrant Certificates)
PLEASE INSERT SOCIAL SECURITY OR ------------------------------
OTHER IDENTIFYING NUMBER OF
ASSIGNEE ------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
______________________________ of the Warrants represented by this Warrant
Certificate unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
and does hereby irrevocably constitute and appoint
-----------------------------
--------------------------------------------------------------------------------
Attorney to transfer this Warrant Certificate on the records of the Company with
full power of substitution in the premises.
Dated: Signature(s)
------------------------ ---------------------------
Signature(s)
Guaranteed:
----------------------------
----------------------------------
NOTICE
The Signature(s) to the Purchase Form or the Assignment Form must
correspond to the name as within upon the face of this Warrant Certificate in
every particular without alteration or enlargement or any change whatsoever.
Signature(s) should be guaranteed by a commercial bank or trust company, or by a
member firm of any national securities exchange whose signature is known to the
Warrant Agent.
