UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of
1934
Report for Event: April 6, 1999
GOOD TIMES RESTAURANTS INC.
(Exact name of registrant as specified in its charter)
Nevada 0-18590 84-1133368
(State or other (Commission (IRS Employer
jurisdiction of File No.) Identification No.)
incorporation)
601 Corporate Circle, Golden, CO 80401
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(303) 384-1400
Not applicable
(Former name and address)
Item 1. Changes in Control of Registrant
Not applicable.
Item 2. Acquisition or Disposition of Assets
Not applicable.
Item 3. Bankruptcy or Receivership
Not applicable.
Item 4. Changes in Registrant's Certifying Accountant
Not applicable.
Item 5. Other Events
On April 6, 1999, the Board of Directors of the Registrant resolved to extend
the expiration date of its Series A Warrants and Series B Warrants (as
described below), from April 12, 1999 to June 30, 1999 and to reduce the
exercise price of its Series A Warrants and Series B Warrants to $3.00 per
share.
The Series A Warrants consist in the aggregate of 215,003 Warrants which were
issued by the Registrant in connection with a Form S-3 Registration Statement
in 1993 and public offerings in 1992, 1990 and 1989.
The Form S-3 Registration Statement, as thereafter amended (Registration No.
33-73062) was filed with the Securities and Exchange Commission on December
20, 1993 and covered 17,503 warrants (the "S-3 Warrants") for the purchase of
up to an aggregate of 17,503 shares of the Registrant's common stock, par
value $.001 per share (the "Common Shares").
The 1992 public offering consisted of up to 165,600 units, with each unit
consisting of two Common Shares and one redeemable warrant to purchase one
Common Share (a "1992 Warrant"). The Registrant issued 144,000 1992 Warrants
to purchase up to an aggregate of 144,000 Common Shares in connection with
such 1992 public offering.
The Registrant's 1990 public offering consisted of up to 46,000 units, with
each unit consisting of one Common Share and one redeemable warrant to
purchase one Common Share (a "1990 Warrant"). The Registrant issued 46,000
1990 Warrants to purchase up to an aggregate of 46,000 Common Shares in
connection with such 1990 public offering.
The remaining 7,500 Series A Warrants were issued in connection with a public
offering by the Registrant in 1989.
The Series B Warrants were issued by the Registrant in connection with a
public offering in 1994 of up to 321,600 units, with each unit consisting of
two Common Shares and one redeemable warrant to purchase one Common Share
("Series B Warrant"). The Registrant issued 321,600 Series B Warrants to
purchase up to an aggregate of 321,600 Common Shares in connection with such
1994 public offering.
Item 6. Resignations of Registrant's Directors
Not applicable.
Item 7. Financial Statements and Exhibits.
Exhibits
7.1 Press Release dated April 6, 1999.
7.2 Fourth Amended and Restated Warrant Agreement made effective as
of February 10, 1999 between the Registrant and American
Securities Transfer, Inc. with regard to the Series A Warrants.
7.3 Second Amended and Restated Warrant Agreement made effective as
of February 10, 1999 between the Registrant and American
Securities Transfer, Inc. with regard to the Series B Warrants.
Item 8. Change in Fiscal Year
Not applicable.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
GOOD TIMES RESTAURANTS INC.
Date: April 6, 1999 By: /s/ Boyd E. Hoback
Boyd E. Hoback
Its: Chief Executive
Officer and President
EXHIBIT 7.1
FOR IMMEDIATE RELEASE: N E W S
April 6, 1999 Nasdaq-GTIM
GOOD TIMES RESTAURANTS INC.
EXTENDS AND REPRICES PUBLIC WARRANTS
GOLDEN, Colorado - Good Times Restaurants Inc. (Nasdaq-GTIM), parent company
of Good Times Drive Thru Inc., announced today that its Board of Directors has
approved an extension and repricing of the Company's publicly held Series A
and Series B warrants. The expiration date of the Series A and Series B
warrants has been extended to June 30, 1999, and the exercise price of the
Series A and Series B warrants has been reduced to $3.00 per share.
Boyd Hoback, President and Chief Executive Officer, stated, " The warrants
have been outstanding for quite some time and we feel it is in the best
interest of the Company to allow the warrant holders an opportunity to
exercise the warrants at the same price as in the recently completed private
sale of common stock. If any warrants are not exercised they will expire on
June 30, 1999 and not be an overhang on the Company's capital structure. We
hope to access additional equity capital from the warrants to help support
continued growth in Company-owned restaurants."
Good Times recently reported completing an agreement for the private sale of
350,000 shares of restricted common stock at $3.00 per share. Hoback added
"The significant improvement in our sales and profitability combined with an
expanded capital base allows us to increase our development plans toward our
goal of 50 restaurants in Colorado. We will continue to strengthen our
position in the Colorado market as the leader in quality, taste, speed of
service and overall value and the development will allow us to access a much
wider customer base."
# # #
INVESTOR RELATIONS CONTACTS:
Good Times Restaurants Inc.
Boyd E. Hoback, President & CEO, 303/384-1411
Certain statements in this release that are not historical facts may be
"forward-looking statements." There are a number of important factors
involving risks and uncertainties beyond the control of the Company that could
cause actual events to differ materially from those expressed or implied by
such statements. A description of risks and uncertainties attendant to Good
Times Restaurants Inc. and its industry and other factors which could affect
the Company's financial results are included in the Company's Securities and
Exchange Commission filings.
EXHIBIT 7.2
FOURTH AMENDED AND RESTATED WARRANT AGREEMENT
THIS FOURTH AMENDED AND RESTATED WARRANT AGREEMENT (this "Agreement"),
dated effective as of February 10, 1999, is between GOOD TIMES RESTAURANTS
INC., a Nevada corporation (the "Company") and AMERICAN SECURITIES TRANSFER &
TRUST, INCORPORATED, an independent stock transfer company (called, as well as
any successor acting as warrant agent under this Agreement, the "Warrant
Agent"),
RECITALS:
A. This Agreement supersedes the Warrant Agreement made effective
June 21, 1990, the Amended and Restated Warrant Agreement made effective June
15, 1992, the Second Amended and Restated Warrant Agreement dated as of March
8, 1994 and the Third Amended and Restated Warrant Agreement dated effective
as of February 10, 1997, between the Company and the Warrant Agent.
B. The Company has previously issued warrants for the purchase of
shares of Common Stock, for which the Warrant Agent presently serves as
registrar and warrant agent, as follows:
1. 17,503 warrants (the "S-3 Warrants") for the purchase of up
to an aggregate of 17,503 shares of the Company's common stock, par value
$.001 per share (the "Common Stock") pursuant to a Form S-3 Registration
Statement, as thereafter amended (Registration No. 33-73062), filed with
the Securities and Exchange Commission on December 20, 1993;
2. 144,000 warrants (the "1992 Warrants") for the purchase of up
to an aggregate of 144,000 shares of Common Stock issued pursuant to the
Company's public offering of its securities in June 1992;
3. 46,000 warrants (the "1990 Warrants") for the purchase of up
to an aggregate of 46,000 shares of Common Stock issued pursuant to the
Company's public offering of its securities in 1990; and
4. 7,500 warrants (the "1989 Warrants") for the purchase of up
to an aggregate of 7,500 shares of Common Stock issued pursuant to the
Company's public offering of its securities in 1989.
The S-3 Warrants, 1992 Warrants, 1990 Warrants and 1989 Warrants may be
collectively referred to herein as a "Warrant" or the "Warrants".
C. The Company desires to enter into this Agreement to establish the
terms and conditions of the Warrants, to set forth the rights of the
registered holders of the Warrants (the "Warrant Holders"), and to provide for
the issuance, transfer and exercise of the Warrants and other matters; and
D. The Company desires the Warrant Agent to act on behalf of the
Company and the Warrant Agent is willing so to act under the terms of this
Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual agreements stated in this
Agreement, the Company and the Warrant Agent agree:
Section 1. Warrants. Subject to the provisions of this Agreement,
Warrant shall entitle the Warrant Holder by exercising such Warrant to
purchase from the Company one share of Common Stock at a price of $3.00 per
Share for each Warrant (called the "Exercise Price"). The Warrants will be
exercisable at any time and will expire at 3:00 p.m., Denver, Colorado time,
on June 30, 1999 (the actual time of expiration of the Warrants being called
the "Expiration Date"). At the time of expiration of the Warrants, any
unexercised Warrants will become void and all rights of the Warrant Holders
under the terms of the Warrant Certificates, this Agreement and otherwise
shall cease.
Section 2. Warrant Certificates. The Warrant Certificates shall be in
registered form only. The text of the Warrant Certificates, including the
forms of exercise and assignment to be printed on the reverse side of the
Warrant Certificate, shall be substantially in the form set forth in Exhibit A
attached to this Agreement. Warrant Certificates shall be signed by, or shall
bear the facsimile signatures of the President or a Vice President of the
Company and the Secretary or an Assistant Secretary of the Company, and shall
bear a facsimile of the Company's seal. If any person whose facsimile
signature has been placed upon any Warrant Certificates as the signature of an
officer of the Company shall have ceased to be such officer before such
Warrant Certificate is countersigned, issued and delivered, such Warrant
Certificate may be countersigned, issued and delivered with the same effect as
if such person had not ceased to be such officer. Any Warrant Certificate may
be signed by, or may bear the facsimile signature of, any person who at the
actual date of the preparation of such Warrant Certificate shall be a proper
officer of the Company to sign such Warrant Certificate even though such
person was not such an officer upon the date of this Agreement.
Warrant Certificates shall be manually countersigned by the Warrant Agent
and shall not be valid for any purpose unless so countersigned. The Warrant
Agent is hereby authorized to countersign and deliver to, or in accordance
with the instructions of, any Warrant Holder any Warrant Certificate which is
properly issued under the terms of this Agreement.
Section 3. Registration of Transfers and Exchanges.
a. The Warrant Agent shall from time to time register the
transfer of any outstanding Warrant Certificate upon records to be maintained
by the Warrant Agent for such purpose upon surrender of such Warrant
Certificate to the Warrant Agent for transfer, accompanied by appropriate
instruments of transfer in form satisfactory to the Company and the Warrant
Agent and duly executed by the Warrant Holder or a duly authorized attorney.
Upon any such registration of transfer, a new Warrant Certificate shall be
issued in the name of and to the transferee and the surrendered Warrant
Certificate shall be canceled.
b. Any outstanding Warrant Certificate may be surrendered
by the Warrant Holder to the Warrant Agent in exchange for other Warrant
Certificates of like tenor and representing in the aggregate the same number
of Warrants. Warrant Certificates so surrendered for exchange shall be
canceled.
Section 4. Exercise of Warrants.
a. Warrants may be exercised at any time on or before the
Expiration Date. Warrants shall be exercised by the Warrant Holder by
surrendering to the Warrant Agent the Warrant Certificate evidencing such
Warrants with the exercise form on the reverse of such Warrant Certificate
duly completed and executed and paying to the Warrant Agent, in lawful money
of the United States of America in cash or by good check (either certified or
a bank cashier's check) payable to the order of the Company, the Exercise
Price for the Shares to be purchased. In order for the exercise of a Warrant
to be valid, a properly executed Warrant with the appropriate payment must be
received by the Warrant Agent prior to the Expiration Date.
b. Upon receipt of a Warrant Certificate with the exercise
form thereon duly executed together with payment in full of the Exercise Price
for the Shares for which Warrants are then being exercised, the Warrant Agent
shall requisition from any transfer agent for the Shares, and upon receipt
shall make delivery of, certificates evidencing the total number of whole
Shares for which Warrants are then being exercised in such names and
denomination as are required for delivery to, or in accordance with the
instructions of, the Warrant Holder. The Warrant Agent shall promptly deliver
to the Company cash or checks received in payment of the Exercise price, and
shall establish such procedures as the Company reasonably requests to assure
collection of such payments before delivering such certificates. Such
certificates for the Shares shall be deemed to be issued, and the person to
whom such Shares are issued of record shall be deemed to have become a holder,
of record of such Shares, as of the date of the surrender of such Warrant
Certificate and payment of the Exercise Price, whichever shall last occur,
provided that if the books of the Company with respect to the Shares shall be
closed as of such date, the certificates for such Shares shall be deemed to be
issued, and the person to whom such Shares are issued of record shall be
deemed to have become a holder of record of such Shares, as of the date on
which such books shall next be open (whether before, on or after the
Expiration Date).
c. If less than all of the Warrants evidenced by a Warrant
Certificate are exercised upon a single occasion, a new Warrant Certificate
for the balance of the Warrants not so exercised shall be issued and delivered
to, or in accordance with transfer instructions properly given by, the Warrant
Holder.
d. The Company may, in whole or in part and at any time
and from time to time, on not less than 60 days' written notice, call the
Warrants for redemption at a price of $.05 per share covered thereby at any
time after the closing high bid price of the Common Stock (if then traded on
the over-the-counter market other than on the National Market System of
NASDAQ) or the closing price of the Common Stock (if then traded on the
National Market System of NASDAQ or on a national securities exchange) exceeds
120% of the Exercise Price for a period of 20 consecutive trading days prior
to such call for redemption. Notice of any redemption will be mailed to the
Warrant Holders at their addresses of record. The Warrants may be exercised
any time prior to the specified redemption date set forth in such notice;
provided, however, that in the event exercise of the Warrants is not made
prior to the redemption date, then the right to purchase the shares of Common
Stock underlying such Warrants shall be forfeited.
e. All Warrant Certificates surrendered upon exercise of
Warrants shall be canceled.
Section 5. Reduction of Exercise Price and/or Extension of Expiration
Date. At any time prior to the Expiration Date, the Company may reduce the
Exercise Price and/or extend the Expiration Date effective on thirty days'
prior written notice to the Warrant Holders. A copy of the resolution of the
Board of Directors of the Company authorizing such extension shall be made
available by the Company for inspection by the Warrant Holders and the Warrant
Agent during such 30-day notice period.
Section 6. Payment of Taxes. The Company will pay all taxes
attributable to the initial issuance of Warrant Stock upon exercise of
Warrants. The Company shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issue of any Warrant
Certificates or in the issue of any certificates for Warrant Stock in a name
other than that of the Warrant Holder upon the exercise of any Warrant.
Section 7. Mutilated or Missing Warrant Certificates. If any Warrant
Certificate is mutilated, lost, stolen, or destroyed, the Company and the
Warrant Agent may, on such terms as to indemnity or otherwise as they may in
their discretion impose (which shall, in the case of a mutilated Warrant
Certificate, include the surrender thereof), and upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction, issue a substitute Warrant Certificate of like denomination and
tenor as the Warrant Certificate so mutilated, lost, stolen or destroyed.
Applicants for such substitute Warrant Certificate shall also comply with such
other reasonable regulations and pay any reasonable charges as the Company or
the Warrant Agent may prescribe. If any Warrant Certificate is mutilated,
lost, stolen or destroyed, and the Warrant Holder desires to exercise any
Warrants evidenced thereby, the Company and the Warrant Agent may authorize
such exercise upon receipt of such evidence and indemnity in lieu of issuing
any substitute Warrant Certificate to evidence the Warrants so exercised.
Section 8. Reservation of Shares.
a. The Company will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued shares of Common Stock, for the purpose of enabling it to satisfy
any obligation to issue Warrant Stock upon exercise of Warrants, the full
number of shares issuable upon the exercise of all outstanding Warrants.
b. The Company covenants that all Warrant Stock which may
be issued upon exercise of Warrants will upon issue be fully paid and
nonassessable by the Company and free from all taxes, liens, charges and
security interests with respect to the issue thereof.
Section 9. Obtaining of Governmental Approvals and Stock Exchange
Listings. If any Warrant Stock issuable upon the exercise of Warrants require
registration or approval of any governmental authority or the taking of any
other action under the laws of the United States of America, any state or any
political subdivision thereof before such Warrant Stock may be validly and
lawfully issued, the Company will in good faith and as expeditiously as
possible after surrender of the Warrant Certificates to the Warrant Agent for
exercise of Warrants evidenced thereby endeavor to secure such registration or
approval or to take such other action, provided that in no event shall such
Warrant Stock be issued, and the Company shall have the authority to suspend
the exercise of all Warrants, until such registration or approval shall have
been obtained or such other action shall have been taken, but all Warrants the
exercise of which is requested during any such suspension shall be exercisable
at the Exercise Price and upon the other conditions in effect on the date of
surrender of the Warrant Certificate and payment of the Exercise Price. If
the Company is unable to obtain such registration or approval within a
reasonable time, the Company may direct the Warrant Agent to return the
Warrant to the Warrant Holder and inform him that such Warrant may not be
exercised in such jurisdiction, and the Warrant Agent shall comply with such
directions.
Section 10. Adjustments of Exercise Price and Either Shares Purchasable
or Number of Warrants. The Exercise Price and either the number of Shares
purchasable upon exercise of each Warrant or the number of Warrants
outstanding shall be subject to adjustment from time to time as provided
herein.
a. Adjustment of Number of Shares. In case the Company
shall at any time issue shares of Common Stock by way of dividend or other
distribution to the holders of the outstanding shares of Common Stock of the
Company or subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall be proportionately decreased in the case of such issuance
(on the day following the date fixed for determining shareholders entitled to
receive such dividend or other distribution) or decreased in the case of such
subdivision or increased in the case of such combination (on the date that
such subdivision or combination shall become effective).
b. No Adjustment for Small Amounts. The Company shall
not be required to give effect to any adjustment in the Exercise Price unless
and until the net effect of one or more adjustments, determined as above
provided, shall have required a change of the Exercise Price by at least one
cent, but when the cumulative net effect of more than one adjustment so
determined shall be to change the actual Exercise Price by at least one cent,
such change in the Exercise Price shall thereupon be given effect.
c. Number of Shares Adjusted. Upon any adjustment of the
Exercise Price, the holder of this Warrant shall thereafter (until another
such adjustment) be entitled to purchase, at the new Exercise Price, the
number of Shares of Common Stock, calculated to the nearest full share,
obtained by multiplying the number of Shares initially issuable upon exercise
of this Warrant by the Exercise Price in effect on the date hereof and
dividing the product so obtained by the new Exercise Price.
d. Officer's Certificate. Whenever the Exercise Price
shall be adjusted as required herein, the Company shall forthwith file in the
custody of its Secretary or an Assistant Secretary at its principal office,
and with its Warrant Agent, an officer's certificate showing the adjusted
Exercise Price determined as herein provided and setting forth in reasonable
detail the facts requiring such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Holder
and the Company shall, forthwith after each such adjustment, give notice
thereof to the Holder. Such certificate shall be conclusive as to the
correctness of such adjustment.
Section 11. Notices to Warrant Holders. So long as this Warrant shall
be outstanding and unexercised (i) if the Company shall pay any dividend or
make any distribution upon the Common Stock; or (ii) if the Company shall
offer to the holders of Common Stock for subscription or purchase by them any
shares of stock of any class or any other rights; or (iii) if any capital
reorganization of the Company; reclassification of the capital stock of the
Company; or voluntary or involuntary dissolution, liquidation or winding up of
the Company shall be effected, then, in any such case, the Company shall cause
to be given to the Holder, at least ten calendar days prior to the date
specified in (x) or (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date on which (x) a record
is to be taken for the purpose of such dividend, distribution or rights, or
(y) such reclassification, reorganization, consolidation, dissolution,
liquidation or winding up is to take place and the date, if any is to be
fixed, as of which the holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up.
Section 12. Reclassification, Reorganization or Merger. In case of (i)
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock of the Company (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of an issuance of Common Stock by way of dividend or other distribution
or of a subdivision or combination); or (ii) in case the Company should spin-
off a subsidiary by distributing to the shareholders of the Company, as a
dividend or otherwise, the capital stock of the subsidiary, the Company shall
cause effective provision to be made so that the Holder shall have the right
thereafter, by exercising this Warrant prior to the Expiration Date, to
purchase or acquire the kind and amount of shares of stock and other
securities and property receivable upon such reclassification, capital
reorganization or other change, consolidation, as if the Holder had exercised
this Warrant prior to such transaction. Any such provision shall include
provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. The foregoing
provisions of this Section shall similarly apply to successive
reclassification, capital reorganizations and changes of shares of Common
Stock and to successive consolidations, mergers, sales or conveyances.
Section 13. Merger or Sale. In case of (i) any consolidation or merger
of the Company with or into another corporation (other than a merger with a
subsidiary in which merger the Company is the continuing corporation) or (ii)
any sale, lease, exchange or other disposition of all or substantially all of
the property and assets of the Company not in the usual and regular course of
the Company's business and in a transaction or series of transactions
requiring shareholder approval under the laws of the State of Colorado, the
Company shall cause notice thereof to be given to the Holder at least 30
calendar days prior to the anticipated date of closing of such transaction
and, notwithstanding any other provisions of this Agreement, the Warrant shall
expire upon the completion of such transaction to the extent not exercised
prior to such transaction closing.
Section 14. No Fractional Shares. No fractional shares or scrip
representing fractional shares will be issued upon exercise of this Warrant.
With respect to any fraction of a share called for upon exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the then current fair market value per Share determined by the
Company.
Section 15. Notice to Warrant Holders. Any notice required to be given
to the Holder shall be deemed to have been given if in writing and upon
deposit in the United States mail, with postage fully prepaid, and addressed
to the Holder at the registered address maintained on the books of the Company
or the Warrant Agent. Any notice or other communication to the Company shall
be deemed to have been given or to be effective for any purpose only upon
actual receipt thereof by the Company at its principal office or by the
Warrant Agent, as the case may be.
The form of Warrant Certificate need not be changed because of any
adjustment in the Exercise Price, the number of Shares purchasable upon the
exercise of a Warrant or the number of Warrants outstanding and Warrant
Certificates issued after any such adjustment may state the same Exercise
Price, the same number of Warrants and the same number of Shares purchasable
upon exercise of a Warrant as are stated in the Warrant Certificates issued
before such adjustment as if such adjustment had not occurred. However, the
Company may at any time with the approval of the Warrant Agent make any change
in the form of Warrant Certificate that it may deem appropriate and that does
not affect the substance thereof and any Warrant Certificates thereafter
issued or countersigned, whether in exchange or substitution for an
outstanding Warrant Certificate or otherwise, may be in the form as so
changed.
Section 16. Rights of Warrant Holders.
a. No Warrant Holder, as such, shall have any rights of a
stockholder of the Company, either at law or equity, and the rights of the
Warrant Holders, as such, are limited to those rights expressly provided in
this Agreement or in the Warrant Certificates.
b. The Company and the Warrant Agent may treat the
registered Warrant Holder in respect of any Warrant Certificate as the
absolute owner thereof for all purposes notwithstanding any notice to the
contrary.
Section 17. Warrant Agent.
a. The Company hereby appoints the Warrant Agent to act
as the agent of the Company in accordance with this Agreement and the Warrant
Agent hereby accepts such appointment.
b. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions
by all of which the Company and every Warrant Holder, by acceptance of any
Warrants, shall be bound:
(1) The statements contained in this Agreement and
in the Warrant Certificates shall be taken as statements of the Company and
the Warrant Agent assumes no responsibility for the correctness of any of the
same except such as describe the Warrant Agent or action taken or to be taken
by it.
(2) The Warrant Agent shall not be responsible for
any failure of the Company to comply with any of the covenants contained in
this Agreement or in the Warrant Certificates to be complied with by the
Company.
(3) The Warrant Agent may consult at any time with
counsel satisfactory to it (who may be counsel for the Company) and the
Warrant Agent shall incur no liability or responsibility to the Company or to
any Warrant Holder in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of
such counsel, provided the Warrant Agent shall have exercised reasonable care
in the selection and continued employment of such counsel.
(4) The Warrant Agent shall incur no liability or
responsibility to the Company or to any Warrant Holder for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(5) The Company agrees to pay to the Warrant Agent
reasonable compensation for all services rendered by the Warrant Agent in the
execution of this Agreement including fees for exercise of the Warrants, to
reimburse the Warrant Agent for all expenses, taxes and governmental charges
and other charges of any kind and nature incurred by the Warrant Agent in the
execution of this Agreement and to indemnify the Warrant Agent and save it
harmless against any and all liabilities, including judgments, costs and
counsel fees, for anything done or omitted by the Warrant Agent in the
execution of this Agreement except as a result of the Warrant Agent's
negligence, bad faith or willful misconduct.
(6) The Warrant Agent shall be under no obligation
to institute any action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more Warrant Holders
shall furnish the Warrant Agent with reasonable security and indemnity for any
costs and expenses which may be incurred, but this provision shall not affect
the power of the Warrant Agent to take such action as the Warrant Agent may
consider proper, whether with or without any such security or indemnity. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Warrant Agent shall be brought in its name as Warrant Agent, and any recovery
of judgment shall be for the ratable benefit of the Warrant Holders as their
respective rights or interests may appear.
(7) The Warrant Agent and any stockholder, director,
officer or employee of the Warrant Agent may buy, sell or deal in any of the
Warrants or other securities of the Company or become pecuniarily interested
in any transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise as fully and freely as though it were
not Warrant Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any
other legal entity.
(8) The Warrant Agent shall act hereunder solely as
agent for the Company, and its duties shall be determined solely by the
provisions hereof.
Section 18. Merger, Consolidation or Change of Name of Warrant Agent.
a. Any corporation into which the Warrant Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Warrant
Agent shall be a party, or any corporation succeeding to the transfer agency
business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on
the part of the parties hereto, except that the prior written consent thereto
of the Company shall first be obtained. In case at the time such successor to
the Warrant Agent shall succeed to the agency created by this Agreement, and
in case at that time any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the original Warrant Agent; and in case at that
time any of the Warrant Certificates shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrant Certificates
either in the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrant Certificates shall
have the full force provided in the Warrant Certificates and in this
Agreement.
b. In case at any time the name of the Warrant Agent
shall be changed and at such time any of the Warrant Certificates shall have
been countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name; and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
Section 19. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company
notice in writing, and by giving notice in writing to each Warrant Holder at
his address appearing in the Warrant register, specifying a date when such
resignation shall take affect, which notice shall be sent at least 30 days
prior to the date so specified and which notice shall be paid for by the
Company. If the Warrant Agent shall resign or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Warrant
Agent. If the Company shall fail to make such appointment within a period of
30 days after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by any Warrant
Holder, then any Warrant Holder may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent. Pending
appointment of a successor to the Warrant Agent, either by the Company or by
such court, the duties of the Warrant Agent shall be carried out by the
Company. Any successor Warrant Agent, whether appointed by the Company or by
such a court, shall be a transfer agent registered pursuant to Section 17A(c)
of the Securities Exchange Act of 1934, as amended. After appointment the
successor Warrant Agent shall be vested with the same powers, rights, duties
and responsibilities as if it had been originally named as Warrant Agent
without further act or deed and the former Warrant Agent shall deliver and
transfer to the successor Warrant Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for the purpose. Failure to give any notice provided for in
this Section, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of the successor Warrant Agent, as the case may be.
Section 20. Notices. Any notice or demand authorized by this Agreement
to be given or made by the Warrant Agent or by any Warrant Holder to or on the
Company shall be sufficiently given or made only if in writing and upon actual
receipt at the following address (until another address is filed in writing by
the Company with the Warrant Agent):
Good Times Restaurants Inc.
601 Corporate Circle
Golden, CO 80401
Attention: Boyd E. Hoback, President
Any notice or demand authorized by this Agreement to be given or made by any
Warrant Holder or by the Company to or on the Warrant Agent shall be
sufficiently given or made if sent by mail, certified or registered, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company), as follows:
American Securities Transfer & Trust, Incorporated
938 Quail Street, Suite 101
Lakewood, CO 80215
Attention:_____________________
Any distribution, notice or demand required or authorized by this Agreement to
be given or made by the Company or the Warrant Agent to or on the Warrant
Holders shall be sufficiently given or made if in writing and upon deposit in
the United States mail, first-class or registered, postage prepaid, addressed
to the Warrant Holders at their last known addresses as they shall appear on
the registration books for the Warrant Certificates maintained by the Warrant
Agent.
Section 21. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any Warrant Holders in order to cure any ambiguity or to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other change
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not adversely affect the interests of the Warrant Holders.
Section 22. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 23. Termination. This Agreement shall terminate at the close
of business on the Expiration Date or such earlier date upon which all
Warrants have been exercised. The provisions of Section 11 shall survive such
terminations.
Section 24. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Colorado and for all purposes shall be construed in accordance with
the laws of said State.
Section 25. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Warrant Agent and the Warrant Holders any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for
the sole and exclusive benefit of the Company, the Warrant Agent and the
Warrant Holders.
Section 26. Agreement Available to Warrant Holders. A copy of this
Agreement shall be available at all reasonable times at the office of the
Warrant Agent for inspection by any Warrant Holder. As a condition of such
inspection, the Warrant Agent may require any Warrant Holder to submit his
Warrant Certificate for inspection.
Section 27. Counterparts. This Agreement may be executed in any number
of counterparts, each of such counterparts shall for all purposes be deemed to
be an original and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
GOOD TIMES RESTAURANTS INC.,
[seal] a Nevada corporation
By:_______________________________
Boyd E. Hoback, President
ATTEST:
__________________________,
Secretary
AMERICAN SECURITIES TRANSFER & TRUST,
INCORPORATED, an independent stock
transfer company
[seal]
By:_______________________________
Gregory D. Tubbs, Vice President
ATTEST:
___________________________,
Secretary
EXHIBIT 7.3
SECOND AMENDED AND RESTATED SERIES B WARRANT AGREEMENT
THIS SECOND AMENDED AND RESTATED SERIES B WARRANT AGREEMENT (this
"Agreement"), dated effective as of February 10, 1999, is between GOOD TIMES
RESTAURANTS INC., a Nevada corporation (the "Company") and AMERICAN SECURITIES
TRANSFER & TRUST, INCORPORATED, an independent stock transfer company (called,
as well as any successor acting as warrant agent under this Agreement, the
"Warrant Agent"),
RECITALS:
A. This Agreement amends and restates the Series B Warrant Agreement
dated as of February 10, 1994, as amended by the First Amended and Restated
Series B Warrant Agreement dated effective as of February 10, 1997, between
the Company and the Warrant Agent.
B. In connection with a public offering by the Company in 1994, the
Company issued 321,600 Series B Redeemable Common Stock Purchase Warrants (the
"Warrants") to purchase in the aggregate up to 321,600 shares of common stock,
par value $.001 per share ("Common Stock") (all shares to be purchased upon
the exercise of the Warrants being called the "Warrant Stock").
C. The Common Stock and Warrants were issued in units (the "Units"),
each Unit consisting of two shares of Common Stock and one Warrant, with each
Warrant being exercisable for the purchase of one share of Common Stock. The
Units were offered and sold pursuant to a Registration Statement on Form SB-2,
as amended (Registration No. 33-72052), filed with the Securities and Exchange
Commission on November 23, 1993.
D. The Company desires to enter into this Agreement to establish the
terms and conditions of the Warrants, to set forth the rights of the
registered holders of the Warrants (the "Warrant Holders"), and to provide for
the issuance, transfer and exercise of the Warrants and other matters; and
E. The Company desires the Warrant Agent to act on behalf of the
Company with respect to the Warrants and the Warrant Agent is willing so to
act under the terms of this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual agreements stated in this
Agreement, the Company and the Warrant Agent agree:
Section 1. Warrants. Subject to the provisions of this Agreement, a
Warrant shall entitle the Warrant Holder by exercising such Warrant to
purchase from the Company one share of Common Stock at a price of $3.00 per
Share for each Warrant (called the "Exercise Price"). The Warrants will be
exercisable at any time and will expire at 3:00 p.m., Denver, Colorado time,
on June 30, 1999 (the actual time of expiration of the Warrants being called
the "Expiration Date"). At the time of expiration of the Warrants, any
unexercised Warrants will become void and all rights of the Warrant Holders
under the terms of the Warrant Certificates, this Agreement and otherwise
shall cease.
Section 2. Warrant Certificates. The Warrant Certificates shall be in
registered form only. The text of the Warrant Certificates, including the
forms of exercise and assignment to be printed on the reverse side of the
Warrant Certificate, shall be substantially in the form set forth in Exhibit A
attached to this Agreement. Warrant Certificates shall be signed by, or shall
bear the facsimile signatures of the President or a Vice President of the
Company and the Secretary or an Assistant Secretary of the Company, and shall
bear a facsimile of the Company's seal. If any person whose facsimile
signature has been placed upon any Warrant Certificates as the signature of an
officer of the Company shall have ceased to be such officer before such
Warrant Certificate is countersigned, issued and delivered, such Warrant
Certificate may be countersigned, issued and delivered with the same effect as
if such person had not ceased to be such officer. Any Warrant Certificate may
be signed by, or may bear the facsimile signature of, any person who at the
actual date of the preparation of such Warrant Certificate shall be a proper
officer of the Company to sign such Warrant Certificate even though such
person was not such an officer upon the date of this Agreement.
Warrant Certificates shall be manually countersigned by the Warrant Agent
and shall not be valid for any purpose unless so countersigned. The Warrant
Agent is hereby authorized to countersign and deliver to, or in accordance
with the instructions of, any Warrant Holder any Warrant Certificate which is
properly issued under the terms of this Agreement.
Section 3. Registration of Transfers and Exchanges.
a. The Warrant Agent shall from time to time register the
transfer of any outstanding Warrant Certificate upon records to be maintained
by the Warrant Agent for such purpose upon surrender of such Warrant
Certificate to the Warrant Agent for transfer, accompanied by appropriate
instruments of transfer in form satisfactory to the Company and the Warrant
Agent and duly executed by the Warrant Holder or a duly authorized attorney.
Upon any such registration of transfer, a new Warrant Certificate shall be
issued in the name of and to the transferee and the surrendered Warrant
Certificate shall be canceled.
b. Any outstanding Warrant Certificate may be surrendered
by the Warrant Holder to the Warrant Agent in exchange for other Warrant
Certificates of like tenor and representing in the aggregate the same number
of Warrants. Warrant Certificates so surrendered for exchange shall be
canceled.
Section 4. Exercise of Warrants.
a. Warrants may be exercised at any time on or before the
Expiration Date. Warrants shall be exercised by the Warrant Holder by
surrendering to the Warrant Agent the Warrant Certificate evidencing such
Warrants with the exercise form on the reverse of such Warrant Certificate
duly completed and executed and paying to the Warrant Agent, in lawful money
of the United States of America in cash or by good check (either certified or
a bank cashier's check) payable to the order of the Company, the Exercise
Price for the Shares to be purchased. In order for the exercise of a Warrant
to be valid, a properly executed Warrant with the appropriate payment must be
received by the Warrant Agent prior to the Expiration Date.
b. Upon receipt of a Warrant Certificate with the exercise
form thereon duly executed together with payment in full of the Exercise Price
for the Shares for which Warrants are then being exercised, the Warrant Agent
shall requisition from any transfer agent for the Shares, and upon receipt
shall make delivery of, certificates evidencing the total number of whole
Shares for which Warrants are then being exercised in such names and
denomination as are required for delivery to, or in accordance with the
instructions of, the Warrant Holder. The Warrant Agent shall promptly deliver
to the Company cash or checks received in payment of the Exercise price, and
shall establish such procedures as the Company reasonably requests to assure
collection of such payments before delivering such certificates. Such
certificates for the Shares shall be deemed to be issued, and the person to
whom such Shares are issued of record shall be deemed to have become a holder,
of record of such Shares, as of the date of the surrender of such Warrant
Certificate and payment of the Exercise Price, whichever shall last occur,
provided that if the books of the Company with respect to the Shares shall be
closed as of such date, the certificates for such Shares shall be deemed to be
issued, and the person to whom such Shares are issued of record shall be
deemed to have become a holder of record of such Shares, as of the date on
which such books shall next be open (whether before, on or after the
Expiration Date).
c. If less than all of the Warrants evidenced by a Warrant
Certificate are exercised upon a single occasion, a new Warrant Certificate
for the balance of the Warrants not so exercised shall be issued and delivered
to, or in accordance with transfer instructions properly given by, the Warrant
Holder.
d. The Company may, in whole or in part and at any time
and from time to time, on not less than 45 days' written notice, call the
Warrants for redemption at a price of $.05 per share covered thereby at any
time after the closing high bid price of the Common Stock (if then traded on
the over-the-counter market other than on the National Market System of
NASDAQ) or the closing price of the Common Stock (if then traded on the
National Market System of NASDAQ or on a national securities exchange) exceeds
150% of the Exercise Price for a period of 20 of the 30 consecutive trading
days immediately preceding the date of mailing of the notice of redemption.
Notice of any redemption will be mailed to the Warrant Holders at their
addresses of record. The Warrants may be exercised any time prior to the
specified redemption date set forth in such notice; provided, however, that in
the event exercise of the Warrants is not made prior to the redemption date,
then the right to purchase the shares of Common Stock underlying such Warrants
shall be forfeited.
e. All Warrant Certificates surrendered upon exercise of
Warrants shall be canceled.
Section 5. Reduction of Exercise Price and/or Extension of Expiration
Date. At any time prior to the Expiration Date, the Company may reduce the
Exercise Price and/or extend the Expiration Date effective on thirty days'
prior written notice to the Warrant Holders. A copy of the resolution of the
Board of Directors of the Company authorizing such extension shall be made
available by the Company for inspection by the Warrant Holders and the Warrant
Agent during such 30-day notice period.
Section 6. Payment of Taxes. The Company will pay all taxes
attributable to the initial issuance of Warrant Stock upon exercise of
Warrants. The Company shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issue of any Warrant
Certificates or in the issue of any certificates for Warrant Stock in a name
other than that of the Warrant Holder upon the exercise of any Warrant.
Section 7. Mutilated or Missing Warrant Certificates. If any Warrant
Certificate is mutilated, lost, stolen, or destroyed, the Company and the
Warrant Agent may, on such terms as to indemnity or otherwise as they may in
their discretion impose (which shall, in the case of a mutilated Warrant
Certificate, include the surrender thereof), and upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction, issue a substitute Warrant Certificate of like denomination and
tenor as the Warrant Certificate so mutilated, lost, stolen or destroyed.
Applicants for such substitute Warrant Certificate shall also comply with such
other reasonable regulations and pay any reasonable charges as the Company or
the Warrant Agent may prescribe. If any Warrant Certificate is mutilated,
lost, stolen or destroyed, and the Warrant Holder desires to exercise any
Warrants evidenced thereby, the Company and the Warrant Agent may authorize
such exercise upon receipt of such evidence and indemnity in lieu of issuing
any substitute Warrant Certificate to evidence the Warrants so exercised.
Section 8. Reservation of Shares.
a. The Company will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued shares of Common Stock, for the purpose of enabling it to satisfy
any obligation to issue Warrant Stock upon exercise of Warrants, the full
number of shares issuable upon the exercise of all outstanding Warrants.
b. The Company covenants that all Warrant Stock which may
be issued upon exercise of Warrants will upon issue be fully paid and
nonassessable by the Company and free from all taxes, liens, charges and
security interests with respect to the issue thereof.
Section 9. Obtaining of Governmental Approvals and Stock Exchange
Listings. If any Warrant Stock issuable upon the exercise of Warrants require
registration or approval of any governmental authority or the taking of any
other action under the laws of the United States of America, any state or any
political subdivision thereof before such Warrant Stock may be validly and
lawfully issued, the Company will in good faith and as expeditiously as
possible after surrender of the Warrant Certificates to the Warrant Agent for
exercise of Warrants evidenced thereby endeavor to secure such registration or
approval or to take such other action, provided that in no event shall such
Warrant Stock be issued, and the Company shall have the authority to suspend
the exercise of all Warrants, until such registration or approval shall have
been obtained or such other action shall have been taken, but all Warrants the
exercise of which is requested during any such suspension shall be exercisable
at the Exercise Price and upon the other conditions in effect on the date of
surrender of the Warrant Certificate and payment of the Exercise Price. If
the Company is unable to obtain such registration or approval within a
reasonable time, the Company may direct the Warrant Agent to return the
Warrant to the Warrant Holder and inform him that such Warrant may not be
exercised in such jurisdiction, and the Warrant Agent shall comply with such
directions.
Section 10. Adjustments of Exercise Price and Either Shares Purchasable
or Number of Warrants. The Exercise Price and either the number of Shares
purchasable upon exercise of each Warrant or the number of Warrants
outstanding shall be subject to adjustment from time to time as provided
herein.
a. Adjustment of Number of Shares. In case the Company
shall at any time issue shares of Common Stock by way of dividend or other
distribution to the holders of the outstanding shares of Common Stock of the
Company or subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall be proportionately decreased in the case of such issuance
(on the day following the date fixed for determining shareholders entitled to
receive such dividend or other distribution) or decreased in the case of such
subdivision or increased in the case of such combination (on the date that
such subdivision or combination shall become effective).
b. No Adjustment for Small Amounts. The Company shall not
be required to give effect to any adjustment in the Exercise Price unless and
until the net effect of one or more adjustments, determined as above provided,
shall have required a change of the Exercise Price by at least one cent, but
when the cumulative net effect of more than one adjustment so determined shall
be to change the actual Exercise Price by at least one cent, such change in
the Exercise Price shall thereupon be given effect.
c. Number of Shares Adjusted. Upon any adjustment of the
Exercise Price, the holder of this Warrant shall thereafter (until another
such adjustment) be entitled to purchase, at the new Exercise Price, the
number of Shares of Common Stock, calculated to the nearest full share,
obtained by multiplying the number of Shares initially issuable upon exercise
of this Warrant by the Exercise Price in effect on the date hereof and
dividing the product so obtained by the new Exercise Price.
d. Officer's Certificate. Whenever the Exercise Price
shall be adjusted as required herein, the Company shall forthwith file in the
custody of its Secretary or an Assistant Secretary at its principal office,
and with its Warrant Agent, an officer's certificate showing the adjusted
Exercise Price determined as herein provided and setting forth in reasonable
detail the facts requiring such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Holder
and the Company shall, forthwith after each such adjustment, give notice
thereof to the Holder. Such certificate shall be conclusive as to the
correctness of such adjustment.
Section 11. Notices to Warrant Holders. So long as this Warrant shall
be outstanding and unexercised (i) if the Company shall pay any dividend or
make any distribution upon the Common Stock; or (ii) if the Company shall
offer to the holders of Common Stock for subscription or purchase by them any
shares of stock of any class or any other rights; or (iii) if any capital
reorganization of the Company; reclassification of the capital stock of the
Company; or voluntary or involuntary dissolution, liquidation or winding up of
the Company shall be effected, then, in any such case, the Company shall cause
to be given to the Holder, at least ten calendar days prior to the date
specified in (x) or (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date on which (x) a record
is to be taken for the purpose of such dividend, distribution or rights, or
(y) such reclassification, reorganization, consolidation, dissolution,
liquidation or winding up is to take place and the date, if any is to be
fixed, as of which the holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up.
Section 12. Reclassification, Reorganization or Merger. In case of (i)
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock of the Company (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of an issuance of Common Stock by way of dividend or other distribution
or of a subdivision or combination); or (ii) in case the Company should spin-
off a subsidiary by distributing to the shareholders of the Company, as a
dividend or otherwise, the capital stock of the subsidiary, the Company shall
cause effective provision to be made so that the Holder shall have the right
thereafter, by exercising this Warrant prior to the Expiration Date, to
purchase or acquire the kind and amount of shares of stock and other
securities and property receivable upon such reclassification, capital
reorganization or other change, consolidation, as if the Holder had exercised
this Warrant prior to such transaction. Any such provision shall include
provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. The foregoing
provisions of this Section shall similarly apply to successive
reclassification, capital reorganizations and changes of shares of Common
Stock and to successive consolidations, mergers, sales or conveyances.
Section 13. Merger or Sale. In case of (i) any consolidation or merger
of the Company with or into another corporation (other than a merger with a
subsidiary in which merger the Company is the continuing corporation) or (ii)
any sale, lease, exchange or other disposition of all or substantially all of
the property and assets of the Company not in the usual and regular course of
the Company's business and in a transaction or series of transactions
requiring shareholder approval under the laws of the State of Colorado, the
Company shall cause notice thereof to be given to the Holder at least 30
calendar days prior to the anticipated date of closing of such transaction
and, notwithstanding any other provisions of this Agreement, the Warrant shall
expire upon the completion of such transaction to the extent not exercised
prior to such transaction closing.
Section 14. No Fractional Shares. No fractional shares or scrip
representing fractional shares will be issued upon exercise of this Warrant.
With respect to any fraction of a share called for upon exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the then current fair market value per Share determined by the
Company.
Section 15. Notice to Warrant Holders. Any notice required to be given
to the Holder shall be deemed to have been given if in writing and upon
deposit in the United States mail, with postage fully prepaid, and addressed
to the Holder at the registered address maintained on the books of the Company
or the Warrant Agent. Any notice or other communication to the Company shall
be deemed to have been given or to be effective for any purpose only upon
actual receipt thereof by the Company at its principal office or by the
Warrant Agent, as the case may be.
The form of Warrant Certificate need not be changed because of any
adjustment in the Exercise Price, the number of Shares purchasable upon the
exercise of a Warrant or the number of Warrants outstanding and Warrant
Certificates issued after any such adjustment may state the same Exercise
Price, the same number of Warrants and the same number of Shares purchasable
upon exercise of a Warrant as are stated in the Warrant Certificates issued
before such adjustment as if such adjustment had not occurred. However, the
Company may at any time with the approval of the Warrant Agent make any change
in the form of Warrant Certificate that it may deem appropriate and that does
not affect the substance thereof and any Warrant Certificates thereafter
issued or countersigned, whether in exchange or substitution for an
outstanding Warrant Certificate or otherwise, may be in the form as so
changed.
Section 16. Rights of Warrant Holders.
a. No Warrant Holder, as such, shall have any rights of a
stockholder of the Company, either at law or equity, and the rights of the
Warrant Holders, as such, are limited to those rights expressly provided in
this Agreement or in the Warrant Certificates.
b. The Company and the Warrant Agent may treat the
registered Warrant Holder in respect of any Warrant Certificate as the
absolute owner thereof for all purposes notwithstanding any notice to the
contrary.
Section 17. Warrant Agent.
a. The Company hereby appoints the Warrant Agent to act
as the agent of the Company in accordance with this Agreement and the Warrant
Agent hereby accepts such appointment.
b. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions
by all of which the Company and every Warrant Holder, by acceptance of any
Warrants, shall be bound:
(1) The statements contained in this Agreement and
in the Warrant Certificates shall be taken as statements of the Company and
the Warrant Agent assumes no responsibility for the correctness of any of the
same except such as describe the Warrant Agent or action taken or to be taken
by it.
(2) The Warrant Agent shall not be responsible for
any failure of the Company to comply with any of the covenants contained in
this Agreement or in the Warrant Certificates to be complied with by the
Company.
(3) The Warrant Agent may consult at any time with
counsel satisfactory to it (who may be counsel for the Company) and the
Warrant Agent shall incur no liability or responsibility to the Company or to
any Warrant Holder in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of
such counsel, provided the Warrant Agent shall have exercised reasonable care
in the selection and continued employment of such counsel.
(4) The Warrant Agent shall incur no liability or
responsibility to the Company or to any Warrant Holder for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(5) The Company agrees to pay to the Warrant Agent
reasonable compensation for all services rendered by the Warrant Agent in the
execution of this Agreement including fees for exercise of the Warrants, to
reimburse the Warrant Agent for all expenses, taxes and governmental charges
and other charges of any kind and nature incurred by the Warrant Agent in the
execution of this Agreement and to indemnify the Warrant Agent and save it
harmless against any and all liabilities, including judgments, costs and
counsel fees, for anything done or omitted by the Warrant Agent in the
execution of this Agreement except as a result of the Warrant Agent's
negligence, bad faith or willful misconduct.
(6) The Warrant Agent shall be under no obligation
to institute any action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more Warrant Holders
shall furnish the Warrant Agent with reasonable security and indemnity for any
costs and expenses which may be incurred, but this provision shall not affect
the power of the Warrant Agent to take such action as the Warrant Agent may
consider proper, whether with or without any such security or indemnity. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Warrant Agent shall be brought in its name as Warrant Agent, and any recovery
of judgment shall be for the ratable benefit of the Warrant Holders as their
respective rights or interests may appear.
(7) The Warrant Agent and any stockholder, director,
officer or employee of the Warrant Agent may buy, sell or deal in any of the
Warrants or other securities of the Company or become pecuniarily interested
in any transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise as fully and freely as though it were
not Warrant Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any
other legal entity.
(8) The Warrant Agent shall act hereunder solely as
agent for the Company, and its duties shall be determined solely by the
provisions hereof.
Section 18. Merger, Consolidation or Change of Name of Warrant Agent.
a. Any corporation into which the Warrant Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Warrant
Agent shall be a party, or any corporation succeeding to the transfer agency
business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on
the part of the parties hereto, except that the prior written consent thereto
of the Company shall first be obtained. In case at the time such successor to
the Warrant Agent shall succeed to the agency created by this Agreement, and
in case at that time any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the original Warrant Agent; and in case at that
time any of the Warrant Certificates shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrant Certificates
either in the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrant Certificates shall
have the full force provided in the Warrant Certificates and in this
Agreement.
b. In case at any time the name of the Warrant Agent shall
be changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name; and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
Section 19. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company
notice in writing, and by giving notice in writing to each Warrant Holder at
his address appearing in the Warrant register, specifying a date when such
resignation shall take affect, which notice shall be sent at least 30 days
prior to the date so specified and which notice shall be paid for by the
Company. If the Warrant Agent shall resign or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Warrant
Agent. If the Company shall fail to make such appointment within a period of
30 days after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by any Warrant
Holder, then any Warrant Holder may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent. Pending
appointment of a successor to the Warrant Agent, either by the Company or by
such court, the duties of the Warrant Agent shall be carried out by the
Company. Any successor Warrant Agent, whether appointed by the Company or by
such a court, shall be a transfer agent registered pursuant to Section 17A(c)
of the Securities Exchange Act of 1934, as amended. After appointment the
successor Warrant Agent shall be vested with the same powers, rights, duties
and responsibilities as if it had been originally named as Warrant Agent
without further act or deed and the former Warrant Agent shall deliver and
transfer to the successor Warrant Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for the purpose. Failure to give any notice provided for in
this Section, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of the successor Warrant Agent, as the case may be.
Section 20. Notices. Any notice or demand authorized by this Agreement
to be given or made by the Warrant Agent or by any Warrant Holder to or on the
Company shall be sufficiently given or made only if in writing and upon actual
receipt at the following address (until another address is filed in writing by
the Company with the Warrant Agent):
Good Times Restaurants Inc.
601 Corporate Circle
Golden, CO 80401
Attention: Boyd E. Hoback, President
Any notice or demand authorized by this Agreement to be given or made by any
Warrant Holder or by the Company to or on the Warrant Agent shall be
sufficiently given or made if sent by mail, certified or registered, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company), as follows:
American Securities Transfer & Trust, Incorporated
938 Quail Street, Suite 101
Lakewood, CO 80215
Attention:_____________________
Any distribution, notice or demand required or authorized by this Agreement to
be given or made by the Company or the Warrant Agent to or on the Warrant
Holders shall be sufficiently given or made if in writing and upon deposit in
the United States mail, first-class or registered, postage prepaid, addressed
to the Warrant Holders at their last known addresses as they shall appear on
the registration books for the Warrant Certificates maintained by the Warrant
Agent.
Section 21. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any Warrant Holders in order to cure any ambiguity or to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other change
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not adversely affect the interests of the Warrant Holders.
Section 22. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 23. Termination. This Agreement shall terminate at the close
of business on the Expiration Date or such earlier date upon which all
Warrants have been exercised. The provisions of Section 11 shall survive such
terminations.
Section 24. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Colorado and for all purposes shall be construed in accordance with
the laws of said State.
Section 25. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Warrant Agent and the Warrant Holders any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for
the sole and exclusive benefit of the Company, the Warrant Agent and the
Warrant Holders.
Section 26. Agreement Available to Warrant Holders. A copy of this
Agreement shall be available at all reasonable times at the office of the
Warrant Agent for inspection by any Warrant Holder. As a condition of such
inspection, the Warrant Agent may require any Warrant Holder to submit his
Warrant Certificate for inspection.
Section 27. Counterparts. This Agreement may be executed in any number
of counterparts, each of such counterparts shall for all purposes be deemed to
be an original and all such counterparts shall together constitute but one and
the same instrument.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
GOOD TIMES RESTAURANTS INC.,
[seal] a Nevada corporation
By:___________________________
Boyd E. Hoback, President
ATTEST:
__________________________,
Secretary
AMERICAN SECURITIES TRANSFER &
TRUST, INCORPORATED, an independent
stock transfer company
[seal]
By:____________________________
Gregory D. Tubbs, Vice President
ATTEST:
__________________________,
Secretary
