Exhibit 4.2
The Securities represented hereby have been acquired for
investment, have not
been registered under the Securities Act of 1933 or state
securities laws, and
may not be sold, exchanged or transferred in any manner, except in
compliance
with applicable law and Section 4 hereof
Warrant Certificate No. ________
Warrants for ________ Shares
Original Issue Date: ___________
Purchase Price $____ Per Share
WARRANT TO PURCHASE COMMON STOCK
OF
NOBLE ROMAN'S, INC.
<PAGE>
TABLE OF CONTENTS
Page
1. The
Warrants.............................................................1
2. Exercise
................................................................1
2.1
Partial Exercise
....................................................2
2.2 Net
Issue Exercise
..................................................2
3. Payment of Taxes
........................................................3
4. Transfer and
Exchange ...................................................4
4.1
Exchanges
...........................................................4
5. Adjustments
.............................................................4
5.1
Adjustments for
Additional Issue or Sale of Common Stock ...........4
5.2
Reorganization,
Consolidation, Merger ..............................9
5.3
No Dilution or
Impairment .........................................10
5.4
Certificate as to
Adjustments .....................................10
5.5
Notices of Record Date
............................................10
6. Loss or Mutilation
.....................................................11
7. Reservation of
Common Stock ............................................11
8. Registration .
.........................................................11
8.1
Authorized Transfers .....................................12
8.2
Demand Registration ......................................12
8.3
Optional Registration ....................................13
8.4 Other
Registrations ......................................13
8.5
Exchange Listing .........................................13
8.6
Registration Obligations .................................14
8.7
Expenses .................................................14
8.8
Indemnity to Holders .....................................14
8.9
Indemnity to Company .....................................14
8.10
Termination of Reparation Obligations ....................15
8.11 No
Warrant Registration ..................................15
8.12 Rule
144 Information .....................................15
9. Information
............................................................15
10. Notices
................................................................15
11. Change, Waiver
.........................................................16
12. Headings
...............................................................16
13. Law Governing
........................................................ 16
<PAGE>
The Securities represented hereby have been acquired for
investment, have not
been registered under the Securities Act of 1993 or state
securities laws, and
may not be sold, exchanged or transferred in any manner in
compliance with
applicable law and Section 4 hereof.
Warrant Certificate No. ________
Warrants for ________ Shares
Original Issue Date: ___________
Purchase Price $____ Per Share
WARRANT TO PURCHASE COMMON STOCK
OF
NOBLE ROMAN'S, INC.
This
certifies that ___________________________, or permitted assigns
under
Section 4, is entitled, subject to the terms set forth below, at
any time from
and after the Original Issue Date set forth above until 5:00 P.M.,
Eastern time,
on the ____ day of __________________________, 20__, to purchase
from NOBLE
ROMAN'S, INC., (the "Company"), and Indiana corporation, up to
fully paid and
non-assessable shares of the Company's Common Stock upon surrender
hereof, at
the principal office of the Company, with the subscription form
annexed hereto
duly executed, and simultaneous payment therefore, at the purchase
price per
share of $______ as such price may be adjusted pursuant to this
warrant (the
"Purchase Price"). The number and character of such shares of
Common Stock are
subject to adjustment as provided below, and the term "Common
Stock" shall mean,
unless the context otherwise requires, the stock and other
securities and
property at the time receivable upon the exercise of this
Warrant.
1.
The Warrants. The term "Warrants" as used herein shall include
all
Warrants issued pursuant hereto and also any warrants delivered in
substitution
or exchange therefore as provided herein. This Warrant does not
entitle the
holder to any rights as a stockholder of the Company.
2.
Exercise. Subject to compliance with the provisions of Section 8
below,
this Warrant may be exercised, during the period of exercise
specified above, at
any time or from time to time, on any business day, for the full
number of
shares of Common Stock called for hereby, by surrendering it at the
principal
office of the Company, One Virginia Avenue, Suite 800,
Indianapolis, Indiana
46204 with the subscription form fully executed, together with
payment in cash
or immediately available funds of the sum obtained by multiplying
(a) the number
of shares of Common Stock called for on the face of this Warrant
(without giving
effect to any adjustment therein) by (b) the Purchase Price
(without giving
effect of any adjustment therein).
All
or any part of such payment may be made by the surrender by such
holder
to the Company, at the aforesaid office of any instrument
evidencing
indebtedness of the Company, which at the date of issue thereof had
a maturity
of one year or more. All indebtedness so surrendered shall be
credited against
such purchase price in an amount equal to the outstanding principal
amount
thereof plus accrued interest to the date of surrender.
<PAGE>
-2-
The
exercise price may also be paid by surrendering the right to a
number
of shares issuable upon exercise of the Warrant that have a fair
market value
equal to or greater than the required exercise price. The fair
market value
shall be the last reported sale price of the Common Stock on the
prior business
day or, in case no such reported sales take place on such day, the
average of
the last reported bid and asked price of the Common Stock on such
day, in either
case on the principal national securities exchange on which the
Common Stock is
admitted to trading or listed, or if not so admitted or listed, the
average of
the closing bid and asked price of the Common Stock as reported by
NASDAQ or if
not so available as reasonably determined by the Board of Directors
of the
Company.
If
the Warrant is exercised at a time when the Common Stock issuable
upon
such exercise has not been registered under the Securities Act of
1933 and
applicable state securities laws, the Common Stock issued upon such
exercise
shall contain a legend to that effect and shall refer to Section 8
of this
Agreement.
A Warrant shall be deemed to have been exercised immediately prior
to
the close of business on the date of its surrender for exercise as
provided
above, and the person entitled to receive the shares of Common
Stock issuable
upon such exercise shall be treated for all purposes as the holder
of such
shares of record as of the close of business on such date. As soon
as
practicable on or after such date, but in any event within ten (10)
business
days thereafter, the Company shall issue and deliver to the person
or persons
entitled to receive the same certificate or certificates for the
number of full
shares of Common Stock issuable upon such exercise, together with
cash, in lieu
of any fraction of a share, equal to such fraction of the then
current market
value of one full share.
2.1 Partial Exercise.
This Warrant may be exercised for less than the full
number of shares of Common Stock at any time called for hereby from
time to time
in the manner set forth in Section 2. Upon any partial exercise,
the number of
shares receivable upon the exercise of this Warrant as a whole, add
the sum
payable upon the exercise of this Warrant as a whole, shall be
proportionately
reduced. Upon such partial exercise, this Warrant shall be
surrendered and a new
Warrant of the same tenor and for the purchase of the number of
such shares not
purchased upon such exercise shall be issued by the Company to the
registered
holder hereof.
2.2
Net Issue Exercise. Notwithstanding any provisions herein to
the
contrary, if the Market Price (as defined below) for one share of
Common Stock
is greater than the Purchase Price (on the date of exercise of all
or a part of
this Warrant), in lieu of exercising this Warrant for cask the
Holder may, elect
to receive Common Stock equal to the value (as determined below) of
this Warrant
(or the portion thereof being exercised) by surrender of this
Warrant at the
principal office of the Company, together with the form of Election
to Exercise
attached hereto fully executed, in which event the Company shall
issue to the
Holder that number of Shares of Common Stock computed using the
following
formula:
X = Y x (A-B) /
A
Where Y = the
aggregate number of Shares of Common Stock purchasable
under this Warrant or, if only a portion of this Warrant is
being exercised, the number
<PAGE>
- 3 -
of Shares of Common Stock for which this Warrant is being
exercised (at the date of such calculation)
A = Market Price of one Share of Common Stock (at the date
of such calculation)
B = Purchase Price (as adjusted to the date of such
calculation).
"Market Price" shall mean, if the Common Stock is traded on a
national
securities exchange, the NASDAQ National Market System or the
over-the-counter
market, the last reported sale price on the business date prior to
valuation of
the Common Stock on the NASDAQ National Market System or if no sale
took place
the average of the bid and asked prices on the over-the-counter
market on such
date. If the Common Stock is not so traded, "Market Price" shall be
the value of
one share of Common Stock as reasonably determined by the board of
directors of
the Company-, provided, however, that if Holder objects to such
determination by
the Board of Directors, then such value shall be determined by
appraisal by an
independent investment banking firm selected by the Company and
acceptable to
the Holder, provided, further, that if the Holder and the Company
cannot agree
on such investment banking firm, such appraised value shall be
determined by
averaging the appraised values calculated by (a) an independent
investment
banking firm selected by the Company; (b) an independent investment
banking firm
selected by the Holder-, and (c) an independent investment banking
firm selected
by the investment banking firm's selected by the Company and the
Holder. Each
such appraisal shall be at the Company's expense if the ultimate
price per share
is determined to be 25% or more greater than the price per share
determined by
the Board of Directors and in all other cases at the Holder's
expense.
3.
Payment of Taxes. All shares of Common Stock issued upon the
exercise of
a Warrant shall be validly issued, fully paid and non-assessable
and free of
claims of pre-emptive rights, and the Company shall pay all
issuance taxes and
similar governmental charges that may be imposed in respect of the
issue or
delivery thereof, but in no event shall the Company pay a tax on or
measured by
the net income or gain attributable to such exercise. The Company
shall not be
required, however, to pay any tax or other charge imposed in
connection with any
transfer of a Warrant or any transfer involved in the issue of any
certificate
for shares of Common Stock in any name other than that of the
registered holder
of the Warrant surrendered in connection with the purchase of such
shares, and
in such case the Company shall not be required to issue or deliver
any stock
certificate until such tax or other charge has been paid or it has
been
established to the Company's satisfaction that no tax or other
charge is due.
4.
Transfer and Exchange. This Warrant shall be transferable in whole
or in
part only to "accredited investors" or "qualified institutional
buyers" in each
case as defined in the Securities Act of 1933, as amended, and the
rules and
regulations promulgated thereunder, except the holder hereof
represents that it
is acquiring the Warrants for its own account and for the purpose
of investment
and not with a view to any distribution or resale thereof within
the meaning of
the Securities Act of 1933. The holder further agrees that it will
not sell,
assign or transfer any of the Warrants so acquired in violation of
the
Securities Act of 1933 or any applicable state securities law and
that no such
transfer will be made until the Company shall have received from
counsel for the
<PAGE>
-4-
holder reasonably satisfactory to the Company an opinion to the
effect that the
proposed sale or other transfer of the Warrants by the holder may
be effected
without such violation. The holder acknowledges that, in taking
unregistered
Warrants, it must continue to bear the economic risk of its
investment for an
indefinite period of time because of the fact that such Warrants
have not so
been registered and further realizes that such Warrants cannot be
sold unless
they are subsequently registered under the Securities Act of 1933
and applicable
state securities laws or an exception from such registration
requirements is
available. The holder also acknowledges that the Company is not
obligated to and
does not intend to register the Warrants and that appropriate
legends reflecting
the status of the Warrants under securities laws may be placed on
the face of
the Warrant certificates both at the time of their original issue
and any
transfer and delivery to the holder hereof. The transfer of shares
issuable upon
exercise of this Warrant is governed by Section 8 hereof.
4.1
Exchanges. This Warrant is exchangeable at the principal office of
the
Company for Warrants for the same aggregate number of shares of
Common Stock,
each new Warrant to represent the right to purchase such number of
shares as the
holder shall designate at the time of such exchange.
5.
Adjustments.
5.1
Adjustments for Additional Issue or Sale of Common Stock. In case
at
any time or from time to time on or after the Original Issue Date,
the Company
shall issue or sell shares of its Common Stock (other than those
excepted by
Section 5.1.7) for a consideration per share less than the Market
Price, then
and in each such case the holder of this Warrant, upon the exercise
hereof as
provided in Section 2, shall be entitled to receive, in lieu of the
shares of
Common Stock theretofore receivable upon the exercise of this
Warrant a number
of shares of Common Stock determined by (a) dividing the Purchase
Price by an
Adjusted Purchase Price to be computed as provided below in this
Section 5.1,
and (b) multiplying the resulting quotient by the number of shares
of Common
Stock called for on the face of this Warrant. Such Adjusted
Purchase Price shall
be computed (to the nearest cent, a half cent or more being
considered a full
cent) by dividing:
(i) the sum of (x) the result obtained by multiplying the number
of
shares of Common Stock of the Company outstanding immediately prior
to such
issue or sale by the Purchase Price (or, if an Adjusted Purchase
Price
shall be in effect by reason of a previous adjustment under this
Section
5.1,
by such Adjusted Purchase Price), and (y) the consideration, if
any,
received by the Company upon such issue or sale; by
(ii) the number of shares of Common Stock of the Company
outstanding
immediately after such issue or sale.
No adjustment of the Purchase Price, or Adjusted Purchase Price if
in effect,
however, shaft be made in an amount less than $.01 per share, but
any such
lesser adjustment shall be carried forward and shall be made at the
time and
together with the next subsequent adjustment which together with
any adjustments
as so carried forward shall amount to $.01 per share or more. For
the purpose of
this Section 5.1, the following Sections 5.1.1 to 5.1.7 shall be
applicable;
<PAGE>
-5-
5.1.1 (a) Dividends in Common Stock or Convertible Securities. In
case at
any time on or after the Original Issue Date, the Company shall
declare any
dividend or order any other distribution, upon any stock of the
Company of any
class payable in Common Stock, or In any stock or other securities
directly or
indirectly convertible into or exchangeable for Common Stock (any
such stock or
other securities being hereinafter called "Convertible
Securities"), such
declaration or distribution shall be deemed to be an issue and sale
(as of the
record date), without consideration, of such Common Stock or the
Common Stock
covered by such Convertible Securities, as the case may be.
(b)
Dividends in Other Stock, Securities or Property. In case at any
time
on or after the Original Issue Date, the Company shall declare any
dividend or
order any other distribution; upon any class of stock of the
Company payable in
stock of the Company of a different class (other than Common Stock
or
Convertible Securities covered by Section 5.1.1 (a)), other
securities of the
Company or other property of the Company (other than cash), such
declaration or
distribution shad be deemed an issue and sale, without
consideration, of shares
of Common Stock in an amount determined as follows:
(i) the value of such distributed stock, securities, or property
shall
be
determined in good faith by the Board of Directors of the Company
as of
the
record date of the dividend or distribution;
(ii) the value of a share of the Common Stock shall be determined
in
good
faith by the Board of Directors of the Company as of the record
date
of
the aforesaid dividend or distribution;
(iii) the amount determined under clause (i) shall be divided by
the
amount determined under clause (ii) and the quotient to the next
higher
full
number shall be deemed the number of shares of Common Stock of
the
Company issued, without consideration, by reason of said dividend
or
distribution.
Provided, however, that in the event of a distribution to
shareholders of
stock of a subsidiary or securities convertible into or exercisable
for such
stock, the holder of this Warrant, upon the exercise hereof as
provided in
Section 2, at any time after such distribution, shall be entitled
to receive the
stock or other securities to which such holder would have been
entitled if such
holder had exercised this Warrant immediately prior thereto, all
subject to
further adjustment as provided in Section 5.1, and no Common Stock
shall have
been deemed to have been issued.
(c)
Dividends in Cash Out of Capital or Surplus. In case at any time on
or
after the Original Issue Date, the Company shall declare any
dividend of order
any other distribution upon any stock of the Company, in cash paid
or payable
out of stated capital or paid-in surplus or surplus created as a
result of a
re-evaluation of property (determined in each case on a
consolidated basis) then
to the extent that the amount so paid or payable shall exceed the
earned surplus
on a consolidated basis, such excess shall be deemed an issue
and
<PAGE>
-6-
sale (as of the record date), without consideration, of shares of
Common Stock
in an amount determined as follows:
(i) the value of a share of Common Stock, as of the record date,
shall
be
determined in good faith by the Board of Directors of the
Company;
(ii) amount of said excess shall be divided by the value
determined
under clause (i) and the quotient so determined to the next higher
whole
number shall be deemed the number of shares of Common Stock issued
and sold
without consideration.
(d)
Reclassification. in case at any time on or after the Original
Issue
Date, the Company shall order any distribution of any stock of the
Company
(including Common Stock) or other securities of the Company
(including
Convertible Securities) or property (including cash) by way of
stock split,
spin-off, split-up, reclassification,
