Exhibit 10.30
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A
VIEW TO THE DISTRIBUTION THEREOF, AND, EXCEPT AS STATED IN AN
AGREEMENT BETWEEN THE HOLDER OF THIS WARRANT, OR ITS PREDECESSOR IN
INTEREST, AND THE ISSUER CORPORATION, SUCH WARRANT AND UNDERLYING
SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH
WARRANT AND/OR UNDERLYING SECURITIES OR THE ISSUER CORPORATION
RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE ISSUER
CORPORATION) STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH
ACT.
THIS WARRANT AND THE UNDERLYING SECURITIES ARE
SUBJECT TO THE TERMS OF A CERTAIN SHAREHOLDERS’ AGREEMENT,
DATED AS OF OCTOBER 27, 2004, AMONG THE ISSUER OF THIS WARRANT AND
CERTAIN SHAREHOLDERS, AS THE SAME MAY BE FURTHER AMENDED, RESTATED
OR OTHERWISE MODIFIED FROM TIME TO TIME. THE SHAREHOLDERS’
AGREEMENT CONTAINS CERTAIN RESTRICTIVE PROVISIONS AND RIGHTS
RELATING TO THE VOTING OF THE UNDERLYING SECURITIES AND TRANSFER OF
THIS WARRANT AND THE UNDERLYING SECURITIES. NO REGISTRATION OF
TRANSFER OF SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER
UNLESS AND UNTIL SUCH RESTRICTIONS AND RIGHTS SHALL HAVE BEEN
COMPLIED WITH. A COPY OF THE SHAREHOLDERS’ AGREEMENT IS ON
FILE AT THE COMPANY’S PRINCIPAL OFFICES. UPON WRITTEN REQUEST
TO THE COMPANY’S SECRETARY, A COPY OF THE SHAREHOLDERS’
AGREEMENT WILL BE PROVIDED WITHOUT CHARGE TO THE HOLDER OF THIS
WARRANT.
GORDON BIERSCH BREWERY RESTAURANT
GROUP, INC.
FORM OF WARRANT TO PURCHASE
COMMON STOCK
W HEREAS , the
Board of Directors of G ORDON B IERSCH B REWERY R ESTAURANT G ROUP , I NC . , a
Tennessee corporation, with its principal office at 2001 Riverside
Drive, Suite 200, Chattanooga, TN (the “
Company ”), has determined to issue warrants to
purchase shares of Common Stock of the Company in consideration of
the financial accommodation of the Holder made for the benefit of
the Company in connection with a refinancing transaction in
October, 2004.
N OW T HEREFORE , T HIS C ERTIFIES T HAT ,
for value received,
, or assigns (the “ Holder ”), is
entitled to subscribe for and purchase at the Exercise Price
(defined below) from the Company, up to
shares of Common Stock of the Company (the “ Common
Stock ”), as provided herein.
1. D EFINITIONS . As
used herein, the following terms shall have the following
respective meanings:
“ Exercise
Period ” shall mean the time period commencing with
the date of this Warrant and ending one hundred twenty months
later.
“ Exercise Price
” shall mean $50.00 per share, subject to adjustment pursuant
to Section 4.2 below.
“ Exercise
Shares ” shall mean the shares of the Company’s
Common Stock issuable upon exercise of this Warrant, subject to
adjustment pursuant to the terms herein, including but not limited
to adjustment pursuant to Section 4.2 below.
2. E XERCISE OF W ARRANT .
2.1. Optional Exercise . The rights
represented by this Warrant may be exercised in whole or in part at
any time during the Exercise Period (an “ Optional
Exercise ”).
2.2. Exercise Procedure . The Holder shall
exercise this Warrant pursuant to Section 2.1 above by
delivery to the Company at its address set forth above (or at such
other address as it may designate by notice in writing to the
Holder) the following:
(a) An executed Notice of Exercise in the form
attached hereto;
(b) Payment of the Exercise Price either (i) in
cash, by check or by wire transfer, or (ii) by cancellation of
indebtedness;
(c) This Warrant; and
(d) If this Warrant is not registered in the name of
the Holder, an assignment or assignments, in the form of assignment
attached hereto, properly executed and evidencing the assignment of
this Warrant to the Holder, in compliance with the provisions set
forth in Section 7 hereof.
Upon the exercise of the rights
represented by this Warrant, a certificate or certificates for the
Exercise Shares so purchased, registered in the name of the Holder
or persons designated by the Holder, if requested by the Holder,
shall be issued and delivered to the Holder within five
(5) business day after the rights represented by this Warrant
shall have been so exercised.
The person in whose name any
certificate or certificates for Exercise Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the date on which this Warrant
was surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such certificate or
certificates, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on
which the stock transfer books are open.
- 2 -
2.3. Net Exercise . Notwithstanding any
provisions herein to the contrary, if the fair market value of one
share of the Company’s Common Stock is greater than the
Exercise Price (at the date of calculation as set forth below), in
lieu of exercising this Warrant by payment of cash, the Holder may
elect (the “ Conversion Right ”) to
receive shares equal to the value (as determined below) of this
Warrant (or the portion thereof being canceled) by surrender of
this Warrant at the principal office of the Company together with
the properly endorsed Notice of Exercise in which event the Company
shall issue to the Holder a number of shares of Common Stock
computed using the following formula:
Where X = the number of
shares of Common Stock to be issued to the Holder
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Y
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=
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the number of
shares of Common Stock purchasable under the Warrant or, if only a
portion of the Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such calculation)
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A
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=
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the fair market
value of one share of the Company’s Common Stock (at the date
of such calculation)
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B
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=
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Exercise Price
(as adjusted to the date of such calculation)
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For purposes of the above
calculation, the fair market value of one share of Common Stock
shall be the product of (i) the average daily Market Price (as
defined below) during the period of the most recent 10 days, ending
on the last business day before the effective date of exercise of
the Conversion Right, on which the national securities exchanges
were open for trading and (ii) the number of shares of the
Common Stock (as defined herein) into which each Exercise Share is
convertible on such date. If the Common Stock is traded on a
national securities exchange or admitted to unlisted trading
privileges on such an exchange, or is listed on the National Market
System (the “ National Market System ”)
of the Nasdaq, the Market Price as of a specified day shall be the
last reported sale price of Common Stock on such exchange or on the
National Market System on such date or if no such sale is made on
such day, the mean of the closing bid and asked prices for such day
on such exchange or on the National Market System. If the Common
Stock is not so listed or admitted to unlisted trading privileges,
the Market Price as of a specified day shall be the mean of the
last bid and asked prices reported on such date (x) by the
Nasdaq or (y) if reports are unavailable under clause
(x) above, by the National Quotation Bureau Incorporated. If
the Common Stock is not so listed or admitted to unlisted trading
privileges and bid and ask prices are not reported, the Market
Price as of a specified day shall be determined in good faith by
the Board of Directors of the Company.
3. C OVENANTS OF THE C OMPANY .
3.1. Covenants as to Exercise Shares. The
Company covenants and agrees that all Exercise Shares that may
b