Exhibit 10.2
[FORM OF WARRANT TO PURCHASE
COMMON STOCK]
THIS WARRANT
AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“1933 ACT”), OR APPLICABLE STATE SECURITIES LAWS AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR SUCH SECURITIES UNDER THE 1933 ACT, OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE ISSUER HEREOF, TO THE EFFECT THAT REGISTRATION
IS NOT REQUIRED UNDER THE 1933 ACT AS SOME OTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT AND APPLICABLE LAWS IS
AVAILABLE.
WARRANT TO PURCHASE
COMMON STOCK OF
RICK’S CABARET INTERNATIONAL,
INC.
|
Date of
Issuance: August 5, 2009
|
Warrant
No. __________
|
This certifies that, for value received,
RICK’S CABARET INTERNATIONAL, INC., a Texas corporation (the
“Company”), grants _____________ , a
_____________________ [corporation/limited liability
company/limited partnership/individual] or its registered assigns
(the “Registered Holder”), the right to subscribe for
and purchase from the Company, at the Exercise Price (as defined
herein), from and after 9:00 a.m. Texas time on August 5, 2009 (the
“Exercise Date”) and to and including 5:00 p.m., Texas
time on the third anniversary of the Exercise Date , being August
5, 2012 (the “Expiration Date”), _____________
(______________) shares, as such number of shares may be adjusted
from time to time as described herein (the “Warrant
Shares”), of the Company’s common stock, par value $.01
per share (the “Common Stock”), subject to the
provisions and upon the terms and conditions herein set
forth. The “Exercise Price” per share of
Common Stock shall be $8.75 per share.
This Warrant is issued in connection with the
transactions described in that certain Subscription Agreement
between the Company and the Registered Holder dated as of August 5,
2009 (the “Subscription Agreement”). The
Registered Holder of this Warrant is subject to certain
restrictions set forth in the Subscription Agreement and shall be
entitled to certain rights and privileges set forth in the
Subscription Agreement.
Section
1. Registration.
The Company shall register this
Warrant, upon records to be maintained by the Company for that
purpose (the “Warrant Records”), in the name of the
Registered Holder. The Company may deem and treat the
Registered Holder as the absolute owner of this Warrant for the
purpose of any exercise hereof or any distribution to the
Registered Holder.
Section
2.
Registration of Transfers and Exchanges.
(a) Subject
to Section 9 hereof, the Company shall register the transfer of
this Warrant, in whole or in part, upon records to be maintained by
the Company for that purpose, upon surrender of this Warrant, with
the Form of Assignment attached hereto completed and duly endorsed
by the Registered Holder, to the Company at the office specified in
or pursuant to Section 3(b). Upon any such registration
of transfer, a new Warrant, in substantially the form of this
Warrant, evidencing the Common Stock purchase rights so transferred
shall be issued to the transferee and a new Warrant, in similar
form, evidencing the remaining Common Stock purchase rights not so
transferred, if any, shall be issued to the Registered
Holder.
(b) This
Warrant is exchangeable, upon the surrender hereof by the
Registered Holder at the office of the Company specified in or
pursuant to Section 3(b) hereof, for new Warrants, in substantially
the form of this Warrant evidencing, in the aggregate, the right to
purchase the number of Warrant Shares which may then be purchased
hereunder, each of such new Warrants to be dated the date of such
exchange and to represent the right to purchase such number of
Warrant Shares as shall be designated by the Registered Holder at
the time of such surrender.
Section
3.
Duration and Exercise of this Warrant.
(a) This
Warrant shall be exercisable by the Registered Holder as to the
Warrant Shares at any time during the period commencing on the
Exercise Date and ending on the Expiration Date. At 5:00 p.m.,
Texas time, on the Expiration Date, this Warrant, to the extent not
previously exercised, shall become void and of no further force or
effect.
(b) Subject
to Sections 4, and 7 hereof, upon exercise or surrender of this
Warrant, with the Form of Election to Purchase attached hereto
completed and duly endorsed by the Registered Holder, to the
Company at 10959 Cutten Road, Houston, Texas 77066, Attention:
President, or at such other address as the Company may specify in
writing to the Registered Holder, and upon payment of the Exercise
Price multiplied by the number of Warrant Shares then issuable upon
exercise of this Warrant in lawful money of the United States of
America, all as specified by the Registered Holder in the Form of
Election to Purchase, the Company shall promptly issue and cause to
be delivered to or upon the written order of the Registered Holder,
and in such name or names as the Registered Holder may designate, a
certificate for the Warrant Shares issued upon such
exercise. Any person so designated in the Form of
Election to Purchase, duly endorsed by the Registered Holder, as
the person to be named on the certificates for the Warrant Shares,
shall be deemed to have become holder of record of such Warrant
Shares, evidenced by such certificates, as of the Date of Exercise
(as hereinafter defined) of such Warrant.
(c) The
Registered Holder may pay the applicable Exercise Price pursuant to
Section 3(b), at the option of the Registered Holder, either (i) in
cash or by cashier’s or certified bank check payable to the
Company, or (ii) by wire transfer of immediately available funds to
the account which shall be indicated in writing by the Company to
the Registered Holder, in either case, in an amount equal to the
product of the Exercise Price multiplied by the number of Warrant
Shares being purchased upon such exercise (the “Aggregate
Exercise Price”).
(d) The
“Date of Exercise” of any Warrant means the date on
which the Company shall have received (i) this Warrant, with the
Form of Election to Purchase attached hereto appropriately
completed and duly endorsed, and (ii) payment of the Aggregate
Exercise Price as provided herein.
(e) This
Warrant shall not be exercisable until the Exercise Date (the
“Exercise Restriction Period”). Subject to
the Exercise Restriction Period, this Warrant shall be exercisable
either in its entirety or, from time to time, for part only of the
number of Warrant Shares which are issuable
hereunder. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the
certificates for the Warrant Shares issued pursuant to such
exercise, deliver to the Registered Holder a new Warrant evidencing
the rights to purchase the remaining Warrant Shares, which Warrant
shall be substantially in the form of this Warrant.
Section
4.
Payment of Taxes and Expenses.
(a) The
Company will pay all expenses and taxes (other than any federal or
state income tax or similar obligations of the Registered Holder)
and other governmental charges attributable to the preparation,
execution, issuance and delivery of this Warrant, any new Warrant
and the Warrant Shares; provided, however , that the Company
shall not be required to pay any tax in respect of the transfer of
this Warrant or the Warrant Shares, or the issuance or delivery of
certificates for Warrant Shares upon the exercise of this Warrant,
to a person or entity other than a Registered Holder or an
Affiliate (as hereinafter defined) of such Registered
Holder.
(b) An
“Affiliate” of any person or entity means any other
person or entity directly or indirectly controlling, controlled by
or under direct or indirect common control with such person or
entity.
Section 5.
Mutilated or Missing Warrant Certificate. If
this Warrant shall be mutilated, lost, stolen or destroyed, upon
request by the Registered Holder, the Company will issue, in
exchange for and upon cancellation of the mutilated Warrant, or in
substitution for the lost, stolen or destroyed Warrant, a
substitute Warrant, in substantially the form of this Warrant, of
like tenor, but, in the case of loss, theft or destruction, only
upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction of this Warrant and, if requested
by the Company, indemnity also reasonably satisfactory to
it.
Section
6.
Reservation, Listing and Issuance of Warrant Shares.
(a) The
Company will at all times have authorized, and reserve and keep
available, free from preemptive rights, for the purpose of enabling
it to satisfy any obligation to issue Warrant Shares upon the
exercise of the rights represented by this Warrant, the number of
Warrant Shares deliverable upon exercise of this
Warrant. The Company will, at its expense, use it best
efforts to cause such shares to be included in or listed on
(subject to issuance or notice of issuance of Warrant Shares) all
markets or stock exchanges in or on which the Common Stock is
included or listed not later than the date on which the Common
Stock is first included or listed on any such market or exchange
and will thereafter maintain such inclusion or listing of all
shares of Common Stock from time to time issuable upon exercise of
this Warrant.
(b) Before
taking any action which could cause an adjustment pursuant to
Section 7 hereof reducing the Exercise Price below the par value of
the Warrant Shares, the Company will take any corporate action
which may be necessary in order that the Company may validly and
legally issue at the Exercise Price, as so adjusted, Warrant Shares
that are fully paid and non-assessable.
(c) The
Company covenants that all Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be (i) duly authorized,
fully paid and nonassessable, and (ii) free from all taxes with
respect to the issuance thereof and from all liens, charges and
security interests.
Section
7.
Adjustment of Number of Warrant Shares.
(a)
The number of Warrant Shares to be purchased upon exercise hereof
is subject to change or adjustment from time to time as hereinafter
provided:
(i)
Stock Dividends; Stock Splits; Reverse Stock Splits;
Reclassifications . In case the Company shall (a)
pay a dividend with respect to its Common Stock in shares of
capital stock, (b) subdivide its outstanding shares of Common
Stock, (c) combine its outstanding shares of Common Stock into a
smaller number of shares of any class of Common Stock or (d) issue
any shares of its capital stock in a reclassification of the Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), other than elimination of par value, a change in par
value, or a change from par value to no par value (any one of which
actions is herein referred to as an “Adjustment
Event”), the number of Warrant Shares purchasable
upon exercise of the Warrant immediately prior to the record date
for such Adjustment Event shall be adjusted so that the Registered
Holder shall thereafter be entitled to receive the number of shares
of Common Stock or other securities of the Company (such other
securities thereafter enjoying the rights of shares of Common Stock
under this Warrant) that such Registered Holder would have owned or
have been entitled to receive after the happening of such
Adjustment Event, had such Warrant been exercised immediately prior
to the happening of such Adjustment Event or any record date with
respect thereto. An adjustment made pursuant to this
Section 7(a)(i) shall become effective immediately after the
effective date of such Adjustment Event retroactive to the record
date, if any, for such Adjustment Event.
(ii)
Adjustment of Exercise Price . Whenever the
number of Warrant Shares purchasable upon the ex
|
