NOBLE ROMAN’S, INC. REDEEMABLE COMMON STOCK PURCHASE CLASS A WARRANT
EXHIBIT
10.21
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
NOBLE ROMAN’S, INC.
REDEEMABLE COMMON STOCK PURCHASE CLASS A WARRANT
_______________,
2016
THIS
COMMON STOCK PURCHASE CLASS A WARRANT (this “Warrant”) of Noble
Roman’s, Inc., a corporation duly organized and validly
existing under the laws of Indiana (the “Company”), is issued to
the Holder (as defined below). This Warrant is part of a series of
Class A Warrants (the "Class A Warrants"), all with
the same terms and conditions as those set forth herein, which may
be issued by the Company exercisable for up to an aggregate
1,600,000 shares of Common Stock, as defined below, subject to
adjustment pursuant to the anti dilution provisions herein. It is
being issued as part of a unit purchased by the Holder, as defined
below, from the Company pursuant to which the Holder is also
purchasing a subordinated convertible note (the “Note”) from the
Company.
FOR
VALUE RECEIVED, the Company hereby certifies that the registered
holder hereof ___________,
with an address at ____________ (the “Holder”), and the
Holder’s successors and assigns, is entitled to purchase from
the Company _________ duly authorized,
validly issued, fully paid and nonassessable common shares of the
Company, no par value (the “Common Stock”), at a
purchase price equal to $1.00 per share, as may be adjusted
pursuant to the anti-dilution provisions set forth herein (the
“Warrant
Price”). The Person, as defined in Section 3.2 below, in whose
name this Warrant (or one or more predecessor Warrants) is
registered on the records of the Company regarding registration and
transfers of the Class A Warrants (the “Warrant Register”) is the
owner and holder thereof for all purposes, except as described in
Section 13
hereof.
1.
Vesting of Warrant. This
Warrant shall vest and become exercisable as of the date that the
Company shall have effected the Share Authorizarion defined in
Section 3.7
below.
2.
Expiration of Warrant. This
Warrant shall expire on _________, 2019 unless further
extended pursuant the terms of Section 3,7 below (the
“Expiration
Date”).
3.
Exercise of Warrant. This
Warrant shall be exercisable pursuant to the terms of Section 1 and this Section 3 hereof.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 2
3.1 Manner of
Exercise.
(a)
This Warrant may only be exercised by the Holder hereof, in
accordance with the terms and conditions hereof, in whole or in
part with respect to any portion of this Warrant, into shares of
Common Stock (the “Warrant Shares”), during
normal business hours on any day other than a Saturday or a Sunday
or a day on which commercial banking institutions in New York, New
York are authorized by law to be closed (a “Business Day”) on or
prior to the Expiration Date with respect to such portion of this
Warrant, by surrender of this Warrant to the Company at its office
maintained pursuant to Section 13.2(a) hereof,
accompanied by an exercise notice (the “Exercise Notice”) in
substantially the form attached to this Warrant as Exhibit A (or a reasonable
facsimile thereof) duly executed by the Holder, together with the
payment of the Warrant Price.
(b)
Cashless Exercise. If at any time commencing one hundred and eighty
(180) days after the issuance date of this Warrant, there is no
effective Registration Statement registering, or no current
prospectus available for the resale of all of the Warrant Shares
that may be acquired pursuant to this Warrant by the Holder, then
this Warrant may also be exercised at the Holder’s election,
in whole or in part, at such time by means of a “cashless
exercise” in which the Holder shall be entitled to receive a
number of Warrant Shares equal to the quotient obtained by dividing
[(A-B) (X)] by (A), where:
(A) =
the closing price of the Company’s Common Stock on the
Business Day immediately preceding the date on which Holder elects
to exercise this Warrant by means of a “cashless
exercise,” as set forth in the applicable Exercise
Notice;
(B) =
the Exercise Price of this Warrant, as adjusted hereunder;
and
(X) =
the number of Warrant Shares that would be issuable upon exercise
of this Warrant in accordance with the terms of this Warrant if
such exercise were by means of a cash exercise rather than a
cashless exercise.
Notwithstanding
anything herein to the contrary, on the Expiration Date, unless the
Holder notifies the Company otherwise, if there is no effective
Registration Statement registering, or no current prospectus
available for, the resale of the Warrant Shares by the Holder, then
this Warrant shall be automatically exercised via cashless exercise
pursuant to this Section 3.1(b).
3.2
When Exercise
Effective. Each exercise of this Warrant shall be deemed to have
been effected immediately prior to the close of business on the
Business Day on which this Warrant shall have been surrendered to
the Company as provided in Section 3.1 hereof, and, at
such time, the corporation, association, partnership, organization,
business, individual, government or political subdivision thereof
or a governmental agency (a “Person” or the
“Persons”) in whose name
or names any certificate or certificates for shares of Common Stock
shall be issuable upon exercise as provided in Section 3.3 hereof shall be
deemed to have become the holder or holders of record
thereof.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 3
3.3 Delivery
of Certificates Upon Exercise. Certificates for shares purchased
hereunder shall be transmitted by the Company’s transfer
agent (the “Transfer
Agent”) to the Holder by (A) crediting the account of
the Holder’s prime broker with the Depository Trust Company
through its Deposit Withdrawal Agent Commission
(“DWAC”)
system if the Company is then a participant in such system and
there is either (1) an effective Registration Statement, as defined
in Section 6 below,
permitting the issuance of the Warrant Shares to or resale of the
Warrant Shares by the Holder or (2) the Warrant Shares are eligible
for resale by the Holder without volume or manner-of-sale
limitations pursuant to Rule 144 under the Act or (B) if the
Company is not then a participant in the DWAC system and there is
not an effective Registration Statement as aforesaid, by physical
delivery of the certificates, bearing the restrictive legends
required by Section
12.1 hereof if the Underlying Shares are otherwise not
publicly tradable or without such restrictive legends if the
Underlying Shares are otherwise publicly tradable pursuant to Rule
144 under the Act, to the address specified by the Holder in the
Exercise Notice by the date that is three (3) Business Days after
the latest of (i) the delivery to the Company of the Exercise
Notice, (ii) surrender of this Warrant and (iii) payment of the
aggregate Exercise Price as set forth above (such date, the
“Warrant Share
Delivery Date”).
3.4 Rescission
Rights. If the Warrant is exercised pursuant to 3.3 (A)
above, the Company fails to cause the Transfer Agent to transmit
the Warrant Shares to the Holder via the DWAC system by the Warrant
Share Delivery Date, then the Holder will have the right to rescind
such exercise, which will terminate on the earlier of the actual
delivery of the Warrant Shares or three (3) Business Days after the
Warrant Share Delivery Date.
3.5 Partial
Exercise. In case exercise is in part only, a new Warrant of like
tenor, dated the date hereof and calling in the aggregate on the
face thereof for the number of Warrant Shares equal to the number
of Warrant Shares called for on the face of this Warrant minus the
number of Warrant Shares designated by the Holder upon exercise as
provided in Section
3.1 hereof (without giving effect to any adjustment
thereof).
3.6
Company to Reaffirm
Obligations. The Company will, at the time of each exercise of this
Warrant, upon the written request of the Holder hereof, acknowledge
in writing its continuing obligation to afford to the Holder all
rights (including without limitation any rights to registration of
the Warrant Shares issued upon exercise) to which the Holder shall
continue to be entitled after exercise in accordance with the terms
of this Warrant; provided, however, that if the Holder
shall fail to make a request, the failure shall not affect the
continuing obligation of the Company to afford the rights to such
Holder.
3.7
Agreement to Increase Authorization to
Issue Common Stock. As of the date hereof the Company is
authorized to issue up to 25,000,000 shares of Common Stock and
there are 20,783,032 shares of Common Stock currently issued and
outstanding. Total additional shares needed for: currently
exercisable outstanding stock options, the conversion of the Notes
and the exercise of the Class A Warrants are 6,675,091 shares.
Accordingly, the Company will not have a sufficient number of
authorized shares to satisfy the above requirement. The Company
covenants that, within 150 days after the date hereof it will take
whatever action may be required, including obtaining stockholder
approval to amend the Company’s Certificate of Incorporation
to increase the number of shares that the Company is authorized to
issue so it can satisfy this issuance requirement (the “Share
Authorization”). The Company agrees that in the event that it
fails to effect the Share Authorization within 150 days after the
date hereof it will extend the Expiration Date for each day that it
fails to obtain the Share Authorization after the termination of
the aforesaid 150 day period.
4.
Warrant
Adjustments.
The
Warrant Price and the number of shares purchasable upon exercise of
this Warrant shall be subject to adjustment with respect to events
after the date hereof as follows:
(a) Adjustment
for Change in Capital Stock. Except as provided in Paragraph 4 (l) below, if the
Company shall (i) declare a dividend on its outstanding Common
Stock in shares of its capital stock, (ii) subdivide its
outstanding Common Stock, (iii) combine its outstanding Common
Stock into a smaller number of shares, or (iv) issue any shares of
its capital stock by reclassification of its Common Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), then in each such case the Warrant Price in effect
immediately prior to such action shall be adjusted so that if this
Warrant is thereafter exercised, the Holder may receive the number
and kind of shares which the Holder would have owned immediately
following such action if the Holder had exercised this Warrant
immediately prior to such action. Such adjustment shall be made
successively whenever such an event shall occur. The adjustment
shall become effective immediately after the record date in the
case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or
reclassification. If after an adjustment the Holder upon exercise
of this Warrant may receive shares of two or more classes of
capital stock of the Company, the Company's Board of Directors, in
good faith, shall determine the allocation of the adjusted Warrant
Price between the classes of capital stock. After such allocation,
the Warrant Price of each class of capital stock shall thereafter
be subject to adjustment on terms comparable to those applicable to
Common Stock in this Section 4.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 4
(b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to
Section 4(a) above, if at any time the Company grants, issues or
sells any rights to purchase stock, warrants, securities or other
property pro rata to the record holders of any class of shares of
Common Stock (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of
Common Stock acquirable upon complete exercise of this Warrant
(without regard to any limitations on exercise hereof,) immediately
before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken,
the date as of which the record holders of shares of Common Stock
are to be determined for the grant, issue or sale of such Purchase
Rights.
(c)
Adjustment Upon
Issuance of Shares of Common Stock. If and whenever on or after the
date hereof, the Company issues or sells, or in accordance with
this section is deemed to have issued or sold, any shares of Common
Stock (including the issuance or sale of shares of Common Stock
owned or held by or for the account of the Company, but excluding
any Exempt Issuance issued or sold or deemed to have been issued or
sold) for a consideration per share (the “New Issuance Price”) less
than a price equal to the Warrant Price in effect immediately prior
to such issue or sale or deemed issuance or sale (such Conversion
Rate then in effect is referred to as the “Applicable Price”) (the
foregoing a “Dilutive Issuance”), then
immediately after such Dilutive Issuance, the Warrant Price then in
effect shall be reduced to the New Issuance Price. For all purposes
of the foregoing (including, without limitation, determining the
adjusted Warrant Price and consideration per share under this
section), the following shall be applicable:
i.
Issuance of Common
Stock Equivalents. If the Company in any manner issues or sells any
securities of the Company or any subsidiary which would entitle the
holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option,
warrant or other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder
thereof to receive, Common Stock (collectively, “Common Stock
Equivalents”) (other than Common Stock Equivalents
that qualify as Exempt Issuances) and the lowest price per share
for which one share of Common Stock is issuable upon the
conversion, exercise or exchange thereof is less than the
Applicable Price, then such share of Common Stock shall be deemed
to be outstanding and to have been issued and sold by the Company
at the time of the issuance or sale of such Common Stock
Equivalents for such price per share. For the purposes of this
section, the “lowest price per share for which one share of
Common Stock is issuable upon the conversion, exercise or exchange
thereof” shall be equal to (1) the lower of (x) the sum of
the lowest amounts of consideration (if any) received or receivable
by the Company with respect to one share of Common Stock upon the
issuance or sale of the Common Stock Equivalent and upon
conversion, exercise or exchange of such Common Stock Equivalent
and (y) the lowest conversion price set forth in such Common Stock
Equivalent for which one share of Common Stock is issuable upon
conversion, exercise or exchange thereof minus (2) the sum of all
amounts paid or payable to the holder of such Common Stock
Equivalent (or any other person) upon the issuance or sale of such
Common Stock Equivalent plus the value of any other consideration
received or receivable by, or benefit conferred on, the holder of
such Common Stock Equivalent (or any other Person). Except as
contemplated below, no further adjustment of the Warrant Price
shall be made upon the actual issuance of such shares of Common
Stock upon conversion, exercise or exchange of such Common Stock
Equivalents.
ii.
Change in Price or
Rate of Conversion. If the purchase or exercise price provided for
in any options, the additional consideration, if any, payable upon
the issue, conversion, exercise or exchange of any Common Stock
Equivalents, or the rate at which any Common Stock Equivalents are
convertible into or exercisable or exchangeable for shares of
Common Stock increases or decreases at any time, the Warrant Price
in effect at the time of such increase or decrease shall be
adjusted to the Warrant Price which would have been in effect at
such time had such options or Common Stock Equivalents provided for
such increased or decreased purchase price, additional
consideration or increased or decreased conversion rate, as the
case may be, at the time initially granted, issued or sold. For
purposes of this section, if the terms of any Common Stock
Equivalent that was outstanding as of the date of issuance of this
Warrant are increased or decreased in the manner described in the
immediately preceding sentence, then such Common Stock Equivalent
and the shares of Common Stock deemed issuable upon exercise,
conversion or exchange thereof shall be deemed to have been issued
as of the date of such increase or decrease. No adjustment pursuant
to this section shall be made if such adjustment would result in an
increase of the Warrant Price then in effect.
iii.
“Exempt Issuance” means
the issuance of (a) shares of Common Stock and options to officers,
employees, or directors of the Company issued pursuant to plans
that have been approved by a majority of the board of directors of
the Company, (b) securities upon the exercise or exchange of or
conversion of any securities issued in the Offering and/or other
securities exercisable or exchangeable for or convertible into
shares of Common Stock issued and outstanding on the date
immediately prior to the initial closing of this Offering, provided
that such securities and any term thereof have not been amended
since such date to increase the number of such securities or to
decrease the issue price, exercise price, exchange price or
conversion price of such securities, (c) full or partial
consideration in connection with a strategic merger, acquisition,
consolidation or purchase of substantially all of the securities or
assets of a corporation or other entity which holders of such
securities or debt are not at any time granted any registration
rights but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or
to an entity whose primary business is investing in securities, and
(d) securities in connection with strategic license agreements and
other partnering arrangements so long as such issuances are not
primarily for the purpose of raising capital and which holders of
such securities or debt are not at any time granted registration
rights.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 5
(d)
Number of Shares.
Upon each adjustment of the Warrant Price as a result of the
calculations made in Paragraphs 4 (a) and (b) above, this Warrant shall
thereafter evidence the right to purchase, at the adjusted Warrant
Price, that number of shares (calculated to the nearest
one-hundredth) obtained by dividing (i) the product obtained by
multiplying the number of shares issuable upon exercise of this
Warrant prior to adjustment of the number of shares by Warrant
Price in effect prior to adjustment of the Warrant Price by (ii)
the Warrant Price in effect after such adjustment of the Warrant
Price.
(e) Transactions
Not Requiring Adjustments. No adjustment need be made for a
transaction referred to in Paragraphs (a) and (b) of this Section 4 if the Holder is
permitted to participate in the transaction on a basis no less
favorable than any other party and at a level, which would preserve
the Holder’s percentage equity participation in the Common
Stock upon exercise of this Warrant. No adjustment need be made for
sales of Common Stock pursuant to a Company plan for reinvestment
of dividends or interest, the granting of options and/or the
exercise of options outstanding under any of the Company's
currently existing stock option plans, the exercise of currently
existing incentive stock options or incentive stock options which
may be granted in the future, the exercise of any other of the
Company's currently outstanding options, or any currently
authorized warrants, whether or not outstanding. No adjustment need
be made for a change in the par value of the Common Stock, or from
par value to no par value or from no par value to par value. If
this Warrant becomes exercisable solely into cash, no adjustment
need be made thereafter. Interest will not accrue on the
cash.
(f)
Action to Permit
Valid Issuance of Common Stock. Before taking any action which
would cause an adjustment reducing the Warrant Price below the then
par value, if any, of the shares of Common Stock issuable upon
exercise of this Warrant, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue shares of such
Common Stock at such adjusted Warrant Price.
(g)
Minimum Adjustment.
No adjustment in the Warrant Price shall be required if such
adjustment is less than $0.01; provided, however, that any adjustments,
which by reason of this Paragraph 4 (g) are not
required to be made, shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Section 4 shall be
made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. Anything to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the conversion price, in addition to those required
by this Paragraph 4
(g), as it in its discretion shall determine to be advisable
in order that any stock dividends, subdivision of shares,
distribution of rights to purchase stock or securities, or
distribution of securities convertible into or exchangeable for
stock hereafter made by the Company to its stockholders shall not
be taxable.
(h)
Referral of
Adjustment. In any case in which this Section 4 shall require that an
adjustment in the Warrant Price be made effective as of a record
date for a specified event (the “Exercise Event”), if
this Warrant shall have been exercised after such record date, the
Company may elect to defer until the occurrence of the Exercise
Event issuing to the Holder the shares, if any, issuable upon the
Exercise Event over and above the shares, if any, issuable upon
such exercise on the basis of the Warrant Price in effect prior to
such adjustment; provided, however, that the Company shall
deliver to the Holder a due xxxx or other appropriate instrument
evidencing the Holder’ right to receive such additional
shares upon the occurrence of the Exercise Event.
(i)
Number of Shares.
Upon each adjustment of the Warrant Price as a result of the
calculations made in Paragraphs (a) and (b) of this Section 4, this Warrant shall
thereafter evidence the right to purchase, at the adjusted Warrant
Price, that number of shares (calculated to the nearest thousandth)
obtained by dividing (i) the product obtained by multiplying the
number of shares purchasable upon exercise of this Warrant prior to
adjustment of the number of shares by the Warrant Price in effect
prior to adjustment of the Warrant Price by (ii) the Warrant Price
in effect after such adjustment of the Warrant Price.
(j) Voluntary
Reduction. The Company from time to time may reduce the Warrant
Price by any amount for any period of time if the period is at
least 20 days and if the reduction is irrevocable during the
period. Whenever the Warrant Price is reduced, the Company shall
mail to the Holder a notice of the reduction. The Company shall
mail the notice at least 15 days before the date the reduced
Warrant Price takes effect. The notice shall state the reduced
Warrant Price and the period it will be in effect. A reduction of
the Warrant Price does not change or adjust the Warrant Price
otherwise in effect for purposes of Paragraphs 4 (a) and
(b) above. Anything
to the contrary notwithstanding, this Paragraph 4 (j) shall be void
and of no effect if it violates the rules and/or regulations of any
exchange or inter-dealer quotation system on which the Common Stock
is then listed for trading.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 6
(k) Prohibition
against Certain Reductions of Warrant Price. Anything to the
contrary notwithstanding, in no event shall the Warrant Price be
reduced below the par value of the Common Stock.
(l)
Notice of
Adjustments. Whenever the Warrant Price is adjusted, the Company
shall promptly mail to the Holder a notice of the adjustment
together with a certificate from the Company's Chief Financial
Officer briefly stating (i) the facts requiring the adjustment,
(ii) the adjusted Warrant Price and the manner of computing it, and
(iii) the date on which such adjustment becomes effective. The
certificate shall be prima facia evidence that the adjustment is
correct, absent manifest error.
(m)
Reorganization of
Company. If the Company and/or the Holder of Common Stock are
parties to a merger, consolidation or a transaction in which (i)
the Company transfers or leases substantially all of its assets;
(ii) the Company reclassifies or changes its outstanding Common
Stock; or (iii) the Common Stock is exchanged for securities, cash
or other assets; the Person who is the transferee or lessee of such
assets or is obligated to deliver such securities, cash or other
assets shall assume the terms of this Warrant. If the issuer of
securities deliverable upon exercise of this Warrant is an
affiliate of the surviving, transferee or lessee corporation, that
issuer shall join in such assumption. The assumption agreement
shall provide that the Holder may exercise this Warrant into the
kind and amount of securities, cash or other assets which the
Holder would have owned immediately after the consolidation,
merger, transfer, lease or exchange if the Holder had exercised
this Warrant immediately before the effective date of the
transaction. The assumption agreement shall provide for adjustments
that shall be as nearly equivalent as may be practical to the
adjustments provided for in this Section 4. The successor
company shall mail to the Holder a notice briefly describing the
assumption agreement. If this Paragraph applies, Paragraph 4 (a) above does not
apply.
(n)
Dissolution,
Liquidation. In the event of the dissolution or total liquidation
of the Company, then after the effective date thereof, this Warrant
and all rights thereunder shall expire.
(o)
Notices. If (i) the
Company takes any action that would require an adjustment in the
Warrant Price pursuant to this Section 4; or (ii) there is a
liquidation or dissolution of the Company, the Company shall mail
to the Holder a notice stating the proposed record date for a
distribution or effective date of a reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution.
The Company shall mail the notice at least 15 days before such
date. Failure to mail the notice or any defect in it shall not
affect the validity of the transaction.
5.
Fractional Shares. If the
number of Warrant Shares purchasable upon the exercise of this
Warrant is adjusted pursuant to Section 4 hereof, the Company
shall nevertheless not be required to issue fractions of shares
upon exercise of this Warrant or otherwise, or to distribute
certificates that evidence fractional shares. Instead the Company
will round any fractional share to the nearest share so that if the
fraction is less than 0.5 no share shall be issued and if the
fraction is 0.5 or higher the Company shall issue one full
share
6.
Right to Registration. The
Holder has the right to require the Company to register the Warrant
Shares pursuant to a
registration statement (the “Registration
Statement”)
under the Securities Act of 1933 (the “Act”)
with the Securities and Exchange Commission (the
“Commission”)
in accordance with the terms of an agreement (the
“Registration Rights
Agreement”) dated as of the date hereof among the
Company, the Holder and the holders of other Class A Warrants. The
date that the first Registration Statement filed pursuant to the
Registration Rights Agreement is declared effective by the
Commission is herein referred to as the “Effective
Date.”
7.
Redemption.
7.1 Company’s
Right to Redeem this Warrant. On or after the Effective Date, as
long as the Warrant Shares may be sold publicly, on not less than
30 days notice to the Holder, the Company may redeem this Warrant
at a redemption price of $0.001 times the number of Warrant Shares
for which this Warrant can then be exercised (the "Redemption Price"), provided
that daily average
weighted trading price of the Common Stock equals or exceeds
$2.00 per share for a period of 30 consecutive trading days
(commencing after the Effective Date) ending one trading day prior
to the date that the notice of redemption is sent. All unexercised
Class A Warrants must be redeemed if any Class A Warrants are
redeemed.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 7
7.2 Method
of Redemption. In case the Company shall desire to exercise its
right to redeem this Warrant, it shall mail a notice of redemption
to the Holder, first class, postage prepaid, not later than the
30th day before the date fixed for redemption, at the
Holder’s last address as shall appear in the records of the
Company. Any notice mailed in the manner provided herein shall be
conclusively presumed to have been duly given whether or not the
Holder receives such notice.
7.3 Notice
of Redemption. The notice of redemption shall specify (i) the
Redemption Price; (ii) the date fixed for redemption, which may not
be less than 30 days after such notice is delivered (the
“Redemption Date”); (iii) the place where this Warrant
shall be delivered and the Redemption Price paid; and (iv) that the
right to exercise this Warrant shall terminate at 5:00 PM (New York
time) on the Redemption Date.
7.4
Delivery of
Redemption Price and Expiration of Warrant. From and after the
Redemption Date, the Company shall, at the place specified in the
notice of redemption, upon presentation and surrender to the
Company by or on behalf of the Holder of this Warrant to be
redeemed, deliver or cause to be delivered to or upon the written
order of the Holder a sum in cash equal to the Redemption Price of
this Warrant. From and after the Redemption Date and upon the
deposit or setting aside by the Company of a sum sufficient to
redeem all of the Class A Warrants called for redemption, this
Warrant shall expire and become void and all rights hereunder,
except the right to receive payment of the Redemption Price, shall
cease.
8.
No Dilution or
Impairment.
8.1
Actions to Permit
Issuance of Warrant Shares. The Company will not, by amendment of
its certificate of incorporation or through any consolidation,
merger, reorganization, transfer of assets, 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, but will at all times in good faith assist in the carrying
out of all of the terms and in the taking of all actions necessary
or appropriate in order to protect the rights of the Holder.
Without limiting the generality of the foregoing, the Company (a)
will not permit the par value of any shares of Common Stock
receivable upon the exercise of this Warrant to exceed the amount
payable therefor upon exercise, (b) will take all actions necessary
or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock on the
exercise of the Warrant, and (c) will not take any action that
results in any adjustment of the Warrant Price if the total number
of shares of Common Stock issuable after the action upon the
exercise of the Warrant would exceed the total number of shares of
Common Stock then authorized by the Company's certificate of
incorporation and available for the purpose of issuance upon
exercise.
8.2
Acknowledgement of
Company’s Obligations. The Company acknowledges that, subject
to the provisions of Section 3.7, its obligation to
issue shares of Common Stock issuable upon exercise of this Warrant
is binding upon it and enforceable regardless of the dilution that
such issuance may have on the ownership interests of other
stockholders.
9.
Chief Financial Officer’s Report
as to Adjustments. In the case of any adjustment or
re-adjustment in the shares of Common Stock issuable upon the
exercise of this Warrant, the Company at its expense will promptly
compute the adjustment or re-adjustment in accordance with the
terms of this Warrant and cause its Chief Financial Officer to
certify the computation (other than any computation of the fair
value of property as determined in good faith by the Board of
Directors of the Company) and prepare a report setting forth the
adjustment or re-adjustment and showing in reasonable detail the
method of calculation thereof and the facts upon which the
adjustment or re-adjustment is based, including a statement of (a)
the number of shares of Common Stock outstanding or deemed to be
outstanding and (b) the Warrant Price in effect immediately prior
to the deemed issuance or sale and as adjusted and re-adjusted (if
required by Section
4 hereof) on account thereof. The Company will forthwith
mail a copy of each report to the Holder and will, upon the written
request at any time of the Holder, furnish to the Holder a like
report setting forth the Warrant Price at the time in effect and
showing in reasonable detail how it was calculated. The Company
will also keep copies of all reports at its office maintained
pursuant to Section
13.2(a) hereof and will cause them to be available for
inspection at the office during normal business hours upon
reasonable notice by the Holder or any prospective purchaser of
this Warrant designated by the Holder.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 8
10.
Reservation of Shares. The
Company shall at all times after the Share Authorization has been
effected reserve and keep available out of its authorized but
unissued shares of Common Stock, free from all taxes, liens and
charges with respect to the issue thereof and not be subject to
preemptive rights or other similar rights of stockholders of the
Company, solely for the purpose of effecting the exercise of this
Warrant, such number of its shares of Common Stock as shall from
time to time be sufficient to effect the exercise thereof, and if
at any time after the Share Authorization has been effected the
number of authorized but unissued shares of Common Stock shall not
be sufficient to effect the exercise of this Warrant, in addition
to such other remedies as shall be available to the Holder, the
Company will take such corporate action as may, in the opinion of
its counsel, be necessary to increase the number of authorized but
unissued shares of Common Stock to such number of shares as shall
be sufficient for such purposes, including without limitation,
using its best efforts to obtain the requisite stockholder approval
necessary to increase the number of authorized shares of the
Company’s Common Stock. After the Share Authorization has
been effected all shares of Common Stock issuable upon exercise of
this Warrant shall be duly authorized and, when issued upon
exercise, shall be validly issued and, in the case of shares, fully
paid and nonassessable and free from all preemptive or similar
rights, taxes, liens and charges with respect to the issue thereof,
and that upon issuance such shares shall be listed on each
securities exchange, if any, on which the other shares of
outstanding Common Stock of the Company are then
listed.
11.
Listing. The Company shall at
all times comply in all respects with the Company’s
reporting, filing and other obligations under the by-laws or rules
of each national securities exchange or inter-dealer quotation
system upon which shares of Common Stock are then listed and shall
list the shares issuable upon the exercise of this Warrant on such
national securities exchange or inter-dealer quotation
system.
12.
Investment Representations:
Restrictions on Transfer.
12.1
Investment
Representations. The Holder acknowledge that this Warrant and the
Warrant Shares have not been and, except as otherwise provided
herein, will not be registered under the Act or qualified under
applicable state securities laws and that the transferability
thereof is restricted by the registration provisions of the Act as
well as such state laws. The Holder represents that the Holder is
acquiring this Warrant and will acquire the Warrant Shares for the
Holder’s own account, for investment purposes only and not
with a view to resale or other distribution thereof, nor with the
intention of selling, transferring or otherwise disposing of all or
any part of such securities for any particular event or
circumstance, except selling, transferring or disposing of them
upon full compliance with all applicable provisions of the Act, the
Securities Exchange Act of 1934, the Rules and Regulations
promulgated by the Commission thereunder, and any applicable state
securities laws. The Holder further understands and agrees that (i)
neither this Warrant nor the Warrant Shares may be sold or
otherwise transferred unless they are subsequently registered under
the Act and qualified under any applicable state securities laws
or, in the opinion of counsel reasonably satisfactory to the
Company, an exemption from such registration and qualification is
available; (ii) any routine sales of the Company's securities made
in reliance upon Rule 144 promulgated by the Commission under the
Act, can be effected only pursuant to the terms and conditions of
that Rule, including applicable holding periods and timely filing
requirements with the Commission for the Company; and (iii) except
as otherwise set forth herein, the Company is under no obligation
to register this Warrant or the Warrant Shares on the
Holder’s behalf or to assist the Holder in complying with any
exemption from registration under the Act. The Holder agrees that
each certificate representing any Warrant Shares for which this
Warrant may be exercised will bear on its face a legend in
substantially the following form:
These
securities have not been registered under the Securities Act of
1933 or qualified under any state securities laws. They may not be
sold, hypothecated or otherwise transferred in the absence of an
effective registration statement under that Act and qualification
under applicable state securities laws without an opinion counsel
reasonably acceptable to the Company that such registration and
qualification are not required.
12.2
Notice of Proposed
Transfer; Opinion of Counsel. Prior to any transfer of any
securities that are not registered under an effective registration
statement under the Act (“Restricted Securities”),
the Holder will give written notice to the Company of the Holder's
intention to affect a transfer and to comply in all other respects
with this Section
12.2. Each notice shall describe the manner and
circumstances of the proposed transfer, and (b) shall designate
counsel for the Holder giving the notice (who may be in-house
counsel for the Holder). The Holder giving notice will submit a
copy thereof to the counsel designated in the notice. The following
provisions shall then apply:
(i) If
in the opinion of counsel for the Holder reasonably satisfactory to
the Company the proposed transfer (i.e. private sale of Restricted
Securities) may be effected without registration of Restricted
Securities under the Act (which opinion shall state the bases for
the legal conclusions reached therein), the Holder shall thereupon
be entitled to transfer the Restricted Securities in accordance
with the terms of the notice delivered by the Holder to the
Company. Each certificate representing the Restricted Securities
issued upon or in connection with any transfer shall bear the
restrictive legends required by Section 12.1
hereof.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 9
(ii) If
the opinion called for in (i) above is not delivered, the Holder
shall not be entitled to transfer the Restricted Securities until
either (x) receipt by the Company of a further notice from such
Holder pursuant to the foregoing provisions of this Section 12.2 and fulfillment of
the provisions of clause (i) above, or (y) such Restricted
Securities have been effectively registered under the
Act.
12.3
Termination of
Restrictions. The restrictions imposed by this Section 12 upon the
transferability of Restricted Securities shall cease and terminate
as to any particular Restricted Securities: (a) which Restricted
Securities shall have been effectively registered under the Act; or
(b) when, in the opinions of both counsel for the holder thereof
and counsel for the Company, which opinion shall not be
unreasonably withheld, such restrictions are no longer required in
order to insure compliance with the Act or Section 12 hereof. Whenever
such restrictions shall cease and terminate as to any Restricted
Securities, the holder thereof shall be entitled to receive from
the Company, without expense (other than applicable transfer taxes,
if any), new securities of like tenor not bearing the applicable
legends required by Section 12.1
hereof.
13.
Ownership, Transfer and Substitution
of Warrant.
13.1
Ownership of
Warrant. The Company may treat the Person in whose name this
Warrant is registered to in the Warrant Register maintained
pursuant to Section
13.2(b) hereof as the owner and holder thereof for all
purposes, notwithstanding any notice to the contrary, except that,
if and when any Class A Warrant is properly assigned by a notice in
substantially the form attached to this Warrant as Exhibit B (or a reasonable
facsimile thereof) duly executed by the holder thereof in blank,
the Company shall treat the bearer thereof as the owner of such
Class A Warrant for all purposes, notwithstanding any notice to the
contrary. Subject to Section 12 hereof, this
Warrant, if properly assigned, may be exercised by a new holder
without a new Warrant first having been issued.
13.2
Office; Transfer and Exchange of Warrant.
(a) The
Company will maintain an office (which may be an agency maintained
at a bank) at 0 Xxxxxxxx
Xxxxxx, Xxxxx 000 , Xxxxxxxxxxxx, Xxxxxxx 00000 (until the
Company notifies the Holder of any change of location of the
office) where notices, presentations and demands in respect of this
Warrant may be made upon it.
(b) The
Company shall cause to be kept at its office maintained pursuant to
Section 13.2(a)
hereof a Warrant Register for the registration and transfer of the
Class A Warrants. The names and addresses of holders of the Class A
Warrants, the transfers thereof and the names and addresses of
transferees of the Class A Warrants shall be registered in such
Warrant Register. The Person in whose name any Class A Warrant
shall be so registered shall be deemed and treated as the owner and
holder thereof for all purposes of such Class A Warrant, and the
Company shall not be affected by any notice or knowledge to the
contrary.
(c)
Upon the surrender of this Warrant, properly endorsed, for
registration of transfer or for exchange at the office of the
Company maintained pursuant to Section 13.2(a) hereof, the
Company at its expense will (subject to compliance with
Section 12 hereof,
if applicable) execute and deliver to or upon the order of the
Holder thereof a new Class A Warrant 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 thereof for the number of shares of Common Stock called
for on the face of the Class A Warrant so surrendered.
13.3
Replacement of
Warrant. Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this
Warrant and, in the case of any such loss, theft or destruction of
this Warrant, upon delivery of indemnity reasonably satisfactory to
the Company in form and amount or, in the case of any mutilation,
upon surrender of this Warrant for cancellation at the office of
the Company maintained pursuant to Section 13.2(a) hereof, the
Company at its expense will execute and deliver, in lieu thereof, a
new Class A Warrant of like tenor and dated the date
hereof.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 10
14.
No Rights or Liabilities as
Stockholder. Except as may
otherwise be provided herein, no Holder shall be entitled to vote
or receive dividends or be deemed the holder of any shares of
Common Stock or any other securities of the Company which may at
any time be issuable on the exercise hereof for any purpose, nor
shall anything contained herein be construed to confer upon the
Holder, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give
or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value, consolidation, merger, conveyance, or
otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until this Warrant
shall have been exercised and the shares of Common Stock
purchasable upon the exercise hereof shall have become deliverable,
as provided herein. The Holder will not be entitled to share in the
assets of the Company in the event of liquidation, dissolution or
the winding up of the Company.
15.
Notices. Any notice or other
communication in connection with this Warrant shall be deemed to be
given if in writing addressed as hereinafter provided and actually
delivered at such address: (a) if to any Holder, at the registered
address of such holder as set forth in the Warrant Register kept at
the office of the Company maintained pursuant to Section 13.2(a) hereof, or (b)
if to the Company, to the attention of its Chief Financial Officer
at its office maintained pursuant to Section 13.2(a) hereof;
provided,
however, that the
exercise of any Warrant shall be effective in the manner provided
in Section 3
hereof.
16.
Payment of Taxes. The Company
will pay all documentary stamp taxes attributable to the issuance
of shares of Common Stock underlying this Warrant upon exercise of
this Warrant; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of
any transfer involved in the registration of any certificate for
shares of Common Stock underlying this Warrant in a name other that
of the Holder. The Holder is responsible for all other tax
liability that may arise as a result of holding or transferring
this Warrant or receiving shares of Common Stock underlying this
Warrant upon exercise hereof.
17.
Warrant Agent. The Company
shall serve as warrant agent under this Warrant. Upon 30 days
notice to the Holder, the Company may appoint a new warrant agent.
Any corporation into which the Company or any new warrant agent may
be merged or any corporation resulting from any consolidation to
which the Company or any new warrant agent shall be a party or any
corporation to which the Company or any new warrant agent transfers
substantially all of its corporate trust or stockholders services
business shall be successor warrant agent under this Warrant
without any further act. Any such successor warrant agent shall
promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the
Holder’s last address as shown on the Warrant
Register.
18.
Miscellaneous. This Warrant and
any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance
with and governed by the laws of Indiana. The section headings in
this Warrant are for purposes of convenience only and shall not
constitute a part hereof. If one or more of the provisions or
portions of this Warrant shall be deemed by any court or
quasi-judicial authority to be invalid, illegal or unenforceable in
any respect, the invalidity, illegality or unenforceability of the
remaining provisions, or portions of provisions contained herein
shall not in any way be affected or impaired thereby. The use
herein of the masculine pronouns or similar terms shall be deemed
to include the feminine and neuter genders as well and vice versa
and the use of the singular pronouns shall be deemed to include the
plural as well and vice versa.
Redeemable Common Stock Purchase Class A Warrant
issued by Noble Roman’s, Inc. to
_________________________
page 11
IN
WITNESS WHEREOF, the Company has caused this Common Stock Purchase
Warrant to be duly executed as of the date first above
written.
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NOBLE
ROMAN’S, INC.
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By:
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/s/
Xxxx X.
Xxxxxx
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Xxxx X.
Xxxxxx
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Executive
Chairman
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EXHIBIT
A
EXERCISE
NOTICE
To Be
Executed by the Holder
in
Order to Exercise Class A Warrants
TO: NOBLE
ROMAN’S, INC.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of
the Company pursuant to the terms of the attached Warrant, and
tenders herewith payment of the exercise price in full, together
with all applicable transfer taxes, if any.
(2) Payment
shall be in lawful money of the United States.
(3) Please
issue a certificate or certificates representing the Warrant Shares
in the name of the undersigned or in such other name as is
specified below:
_________________________________________________________
The
Warrant Shares shall be delivered to the following DWAC Account
Number or by physical delivery of a certificate to:
_________________________________________________________
_________________________________________________________
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Dated:
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X
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Address
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Taxpayer
Identification Number
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Signatures
Guaranteed
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EXHIBIT B
[FORM
OF ASSIGNMENT]
To be
executed by the registered holder if such holder
desires
to transfer the Warrant Certificate.
FOR
VALUE RECEIVED hereby sells, assigns and transfers
unto
(Please
print name and address of transferee)
this
Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
Attorney, to transfer the within Warrant Certificate on the books
of the within-named Company, with full power of
substitution.
Dated:
Signature
(Signature must
conform in all respects to name of holder as specified on the face
of the Warrant Certificate.)
(Insert
Social Security or Other
Identifying Number
of Holder)
Signature
Guaranteed
