Exhibit 10.2
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND THEY MAY NOT
BE TRANSFERRED IN VIOLATION OF SUCH ACT OR LAWS, THE RULES AND
REGULATIONS THEREUNDER OR THE PROVISIONS OF THIS
WARRANT.
No. of Common Shares:
4,281,775
WARRANT
To Purchase Common Shares
of
BUCA, INC.
THIS IS TO CERTIFY THAT BUCA
Financing, LLC, or its permitted assigns, is entitled at any time
prior to the Expiration Date (as hereinafter defined), to purchase
from BUCA, Inc., a Minnesota corporation (the “
Company ”), 4,281,775 shares of Common Stock (as
hereinafter defined) in whole or in part, including fractional
parts, at a purchase price of $0.01 per share, all on the terms and
conditions and pursuant to the provisions hereinafter set forth.
This Warrant has been issued by the Company to BUCA Financing, LLC,
in connection with the bridge financing that Planet Hollywood
International, Inc. has provided to the Company for approximately
U.S. $3,500,000 net of legal expenses.
NOW THEREFORE, in consideration of
the mutual promises, representations, warranties, covenants and
conditions set further herein, the parties mutually agree as
follows:
ARTICLE I
Defined
Terms
SECTION 1.1 Definitions . The
following terms shall have the following meanings:
“ Common Stock ”
means the common stock, par value $0.01 per share, of the Company
and any securities issued in respect thereof, or in substitution
therefor, in connection with any stock split, dividend, spin-off or
combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization or business
combination.
“ Exercise Price
” means, at any date herein, the price at which a share of
Common Stock may be purchased pursuant to this Warrant. On the date
of the original issuance of this Warrant, the Exercise Price is
$0.01 per share of Common Stock.
“
Expiration Date ” means the tenth (10
th
) anniversary
of August 5, 2008.
“ Group ” shall
have the meaning assigned to it in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended.
“ Holder ” means
the duly registered holder of this Warrant under the terms hereof,
being BUCA Financing, LLC, and including assignees
thereof.
“ Merger Agreement
” means the Agreement and Plan of Merger by and among Planet
Hollywood International, Inc., BUCA Financing, LLC and BUCA, Inc.
dated August 5, 2008.
“ SEC ” means the
U.S. Securities and Exchange Commission.
“ Warrant Shares
” means the shares of Common Stock received, or issued, as
the case may be, upon exercise of the Warrants.
“ Warrants ”
means this Warrant and all warrants issued upon transfer, division
or combination of, or in substitution for, any thereof. All
Warrants shall at all times be identical as to terms and conditions
and date, except as to the number of shares of Common Stock for
which they may be exercised.
ARTICLE II
Exercise
Terms
SECTION 2.1 Exercise Periods
. The Holder may exercise this Warrant on any Business Day at any
time following the earlier of (i) the termination of the
Merger Agreement, or (ii) a Change of Control Event, for all
or any part of the number of shares of Common Stock purchasable
hereunder at any time from and after the date of this Warrant and
until 5:00 p.m., New York City time, on the Expiration
Date.
SECTION 2.2 Manner of
Exercise . (a) In order to exercise this Warrant, in whole
or in part, Holder shall deliver to the Company at its principal
office at 1300 Nicollet Mall, Suite 5003, Minneapolis, MN 55403 or
at the office or agency designated by the Company pursuant to
Article VI: (i) a written notice of Holder’s
election to exercise this Warrant, which notice shall specify the
number of Warrant Shares to be purchased and shall be substantially
in the form of the subscription form appearing at the end of this
Warrant as Exhibit A, (ii) subject to the succeeding
paragraph, payment of the Exercise Price for the number of Warrant
Shares in respect of which such Warrant is then exercised, and
(iii) this Warrant. Payment of the Exercise Price shall be
made in cash or by certified or official bank check payable to the
order of the Company or by wire transfer of funds to an account
designated by the Company for such purpose.
(b) In lieu of exercising this
Warrant for cash, the Holder may elect to receive shares equal to
the value of this Warrant (or the portion thereof being exercised)
by surrender of this Warrant at the principal office of the Company
together with notice of such election (“Net Exercise”).
The Company shall issue to a holder who Net Exercises a number of
Shares computed using the following formula:
X = Y(A - B)
A
Where
X = The number of Shares to be
issued to the Holder.
Y = The number of Shares purchasable
under this Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being cancelled (at the date
of such calculation).
A = The fair market value of one
(1) Share (at the date of such calculation).
B = The Warrant Price (as adjusted
to the date of such calculation (the “Determination
Date”)).
For purposes of this
Section 2.2(b), the fair market value of a Warrant Share shall
mean: the Volume Weighted Average Price (VWAP) of the
Company’s common stock for the 10 consecutive Trading Days
ending on the date immediately preceding the date of the Exercise
Notice, or if the VWAP cannot be calculated for a security on a
particular date, the fair market value shall be mutually determined
by the Company and the Holder.
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All such determinations to be appropriately
adjusted for any stock dividend, stock split, stock combination or
other similar transaction during the applicable calculation
period.
“VWAP” means, for any
security as of any date, an average price calculated by adding up
the dollars traded for every transaction (price multiplied by
number of shares traded) and then dividing by the total shares
traded for the day for such security on the NASDAQ Global Market,
as reported by Bloomberg, or, if the NASDAQ Global Market begins to
operate on an extended hours basis and does not designate the
closing bid price or the closing trade price, as the case may be,
then the last bid price or the last trade price, respectively, of
such security prior to 4:00 p.m., New York time, as reported by
Bloomberg, or, if the NASDAQ Global Market is not the principal
securities exchange or trading market for such security, the VWAP
of such security on the principal securities exchange or trading
market where such security is listed or traded as reported by
Bloomberg, or if the foregoing do not apply, the VWAP, of such
security in the over-the-counter market on the electronic bulletin
board for such security as reported by Bloomberg, or, if no price
is reported for such security by Bloomberg, the average of the bid
prices, or the ask prices, respectively, of any market makers for
such security as reported in the “pink sheets” by Pink
Sheets LLC (formerly the National Quotation Bureau,
Inc.).
“Trading Day” means any
day on which the Common Stock are traded on the Principal Market,
or, if the Principal Market is not the principal trading market for
the Common Stock, then on the principal securities exchange or
securities market on which the Common Stock are then traded;
provided that “Trading Day” shall not include any day
on which the Common Stock are scheduled to trade on such exchange
or market for less than 4.5 hours or any day that the Common Stock
are suspended from trading during the final hour of trading on such
exchange or market (or if such exchange or market does not
designate in advance the closing time of trading on such exchange
or market, then during the hour ending at 4:00:00 p.m., New York
time).
If there is no public market for the
Common Stock, the fair market value shall be the price per Share
that the Company could obtain from a willing buyer for Shares sold
by the Company from authorized but unissued Shares, as such prices
shall be determined in good faith by the Company’s Board of
Directors.
(c) The rights represented by this
Warrant shall be exercisable at the election of the Holder hereof
either in full at any time or in part from time to time and, in the
event that this Warrant is surrendered for exercise in respect of
less than all the Warrant Shares purchasable on such exercise at
any time prior to the Expiration Date, the Company shall, at the
time of delivery of the certified copy of the Company’s share
register evidencing and representing the Warrant Shares, deliver to
the Holder a new Warrant evidencing the rights of the Holder to
purchase the unpurchased shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical
with this Warrant.
SECTION 2.3 Issuance of Warrant
Shares . Upon the surrender of this Warrant and payment of the
per share Exercise Price, as set forth in Section 2.2, the
Company shall, as promptly as practicable, and in any event within
five (5) Business Days thereafter, issue or cause there to be
issued and deliver or cause to be delivered to or upon the written
order of the Holder and in such name or names as the Holder may
designate in the notice provided pursuant to Section 2.2, a
certified copy of the Company’s share register evidencing and
representing the number of full Warrant Shares so purchased upon
the exercise of such Warrants or other securities or property to
which it is entitled, registered or otherwise to the Person or
Persons entitled to receive the same. Such Warrant Shares shall be
deemed to have been issued to any Person so designated by the
Holder and such Person shall be deemed to have become a holder of
record of such Warrant Shares as of the date of the delivery of the
notice provided pursuant to Section 2.2, the surrender of this
Warrant and payment of the per share Exercise Price.
SECTION 2.4 Reservation of
Warrant Shares . The Company shall at all times on and
following August 5, 2008 keep reserved out of its authorized
shares of Common Stock a number of shares of Common Stock
sufficient to provide for the exercise in full of all outstanding
Warrants. The registrar for the Common Stock shall at all times on
and following August 5, 2008 and until the Expiration Date, or
the time at which all Warrants have been exercised or canceled,
reserve such number of authorized shares of Common Stock as
shall
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be required for such purpose. All Warrant Shares
which may be issued upon exercise of this Warrant shall be duly and
validly authorized, validly issued, fully paid, nonassessable, free
of preemptive rights and free from all Encumbrances.
SECTION 2.5 Compliance with
Law . If any shares of Common Stock required to be reserved for
purposes of exercise of Warrants would require, under any other
federal or state law or applicable governing rule or regulation of
any national securities exchange, registration with or approval of
any governmental authority, or listing on any such national
securities exchange before such shares may be issued upon exercise,
the Company will cause such shares to be duly registered or
approved by such governmental authority or listed on the relevant
national securities exchange, at its expense.
SECTION 2.6 Payment of Taxes
. The Company shall pay all expenses in connection with, and all
documentary, stamp or similar issue or transfer taxes, if any, and
all other taxes and other governmental charges that may be imposed
with respect to the issue or delivery of this Warrant and all
shares of Common Stock issuable upon the exercise of this Warrant,
and shall indemnify and hold the Holder and its Affiliates and the
Company’s directors harmless from any taxes, interest and
penalties which may become payable by the Holder or its Affiliates
or any such directors as a result of the failure or delay by the
Company to pay such taxes. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with
any transfer involved in (a) the transfer of the Warrant, or
(b) the issue of any shares of Common Stock issuable upon
exercise of this Warrant in any name other than that of the Holder
or its Affiliates, and in such case the Company shall not be
required to issue or deliver any stock until such tax or other
charge has been paid or it has been established to the satisfaction
of the Company that no such tax or other charge is due.
ARTICLE III
Adjustment
Provisions
SECTION 3.1 Change of Control
Event . The Holder may exercise this Warrant on any Business
Day, for all or any part of the number of shares of Common Stock
purchasable hereunder immediately prior to the consummation of any
of the following transactions with any person(s) other than the
Holder or a subsidiary or other affiliate of the Holder:
(i) the sale, lease, exchange, conveyance or other disposition
of all or substantially all of the Company’s property or
business, or (ii) its merger into or consolidation with any
other corporation, or (iii) any transaction (including a
merger or other reorganization) or series of related transactions,
in which more than 40% of the voting power of the Company is
disposed of (each event described in the foregoing clauses
(i) to (iii) being a “ Change of Control
Event ”), provided that the Company shall give the Holder
reasonable prior written notice of the proposed consummation of
such Change of Control Event to permit the Holder to exercise the
rights under this Warrant. The Compa
