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EXHIBIT 10.13
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
CROWN BOOKS CORPORATION (THE "COMPANY")
DATE OF ISSUANCE:
THIS CERTIFIES THAT for value received, [Purchaser] or its registered
assigns (hereinafter called the "Holder") is entitled to purchase from the
Company, at any time during the Term of this Warrant, ____________ (_______)
shares of common stock, $.01 par value, of the Company (the "Common Stock"), at
the Warrant Price, payable as provided herein. The exercise of this Warrant
shall be subject to the provisions, limitations and restrictions herein
contained, and may be exercised in whole or in part.
SECTION 1. Definitions.
For all purposes of this Warrant, the following terms shall have the
meanings indicated:
Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
Securities Act shall mean the Securities Act of 1933, as amended.
Term shall mean the period beginning on the date of issuance hereof and
ending [three years from the date of issuance].
Warrant Price shall mean $2.72 per share, subject to adjustment in
accordance with Section 5 hereof.
Warrants shall mean this Warrant and any other Warrants issued in
connection with the private offering by the Company and its wholly-owned
subsidiary, Xxxxxxxxxx.xxx, Inc. ("XX.xxx"), of up to $10 million of units, each
unit consisting of a promissory note of XX.xxx in the principal amount of
$500,000 (each a "Note" and collectively the "Notes") and Warrants to purchase
183,824 Warrant Shares of the Company.
Warrant Shares shall mean the shares of Common Stock of the Company
purchased or purchasable by the Holder of this Warrant upon the exercise hereof.
SECTION 2. Exercise of Warrant.
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2.1 Procedure for Exercise of Warrant. To exercise this Warrant
in whole or in part (but not as to any fractional share of Common Stock), the
Holder shall deliver to the Company at its office referred to in Section 10
hereof at any time and from time to time during the Term: (i) the Notice of
Exercise in the form attached hereto, (ii) cash, certified or official bank
check payable to the order of the Company, wire transfer of immediately
available funds to the Company's account, or the principal amount of the
Holder's Note, together with a written instrument satisfactory to the Company
evidencing the cancellation of such indebtedness or a portion thereof being
applied to the Warrant Price (or any combination of any of the foregoing) in the
amount of the Warrant Price for each Warrant Share being purchased, and (iii)
this Warrant.
In the event of any exercise of the rights represented by this
Warrant, a certificate or certificates for the shares of Common Stock so
purchased, registered in the name of the Holder or in the name or names of
permitted assignees, shall be delivered to the Holder hereof within a reasonable
time, not exceeding fifteen (15) days, after the rights represented by this
Warrant shall have been so exercised; and, unless this Warrant has expired, a
new Warrant representing the number of shares (except a remaining fractional
share), if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the Holder hereof within such time. The person
in whose name any certificate for shares of Common Stock is issued upon exercise
of this Warrant shall for all purposes be deemed to have become the holder of
record of such shares on the date on which the Warrant was surrendered and
payment of the Warrant Price and any applicable taxes was made, irrespective of
the date of delivery of such certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of such shares at
the close of business on the next succeeding date on which the stock transfer
books are open.
2.2 Transfer Restriction Legend. Each certificate for Warrant
Shares shall bear the following legend (and any additional legend required by
(i) any applicable federal or state securities laws and (ii) any securities
exchange upon which such Warrant Shares may, at the time of such exercise, be
listed) on the face thereof unless at the time of exercise such Warrant Shares
shall be registered under the Securities Act:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may not be
sold or transferred in the absence of such registration or an exemption
therefrom under said Act."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution under a registration statement of the securities
represented thereby) shall also bear such legend unless, in the opinion of
counsel for the Company, the securities represented thereby are not, at such
time, required by law to bear such legend.
SECTION 3. Covenants as to Common Stock. The Company covenants and
agrees that all shares of Common Stock that may be issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be validly issued,
fully paid and nonassessable. The Company further covenants and agrees that the
Company will at all times have authorized and reserved, free from preemptive
rights, a sufficient number of shares of Common Stock to provide for the
exercise of the rights represented by this Warrant. If and so long as the Common
Stock issuable upon the exercise of this Warrant is listed on any national
securities exchange, the Company will, if permitted by the rules of such
exchange, list and
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keep listed on such exchange, upon official notice of issuance, all shares of
such Common Stock issuable upon exercise of this Warrant.
SECTION 4. Adjustment of Number of Shares. Upon each adjustment of the
Warrant Price as provided in Section 5, the Holder shall thereafter be entitled
to purchase, at the Warrant Price resulting from such adjustment, the number of
shares (calculated to the nearest tenth of a share) obtained by multiplying the
Warrant Price in effect immediately prior to such adjustment by the number of
shares purchasable pursuant hereto immediately prior to such adjustment and
dividing the product thereof by the Warrant Price resulting from such
adjustment.
SECTION 5. Adjustment of Warrant Price.
5.1 The Warrant Price shall be subject to adjustment from time
to time as follows:
(a) If, at any time during the Term, the number of
shares of Common Stock outstanding is increased by a stock dividend payable in
shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date fixed for the determination of holders of
Common Stock entitled to receive such stock dividend, subdivision or split-up,
the Warrant Price shall be appropriately decreased so that the number of shares
of Common Stock issuable upon the exercise hereof shall be increased in
proportion to such increase in outstanding shares.
(b) If, at any time during the Term, the number of
shares of Common Stock outstanding is decreased by a combination or other split
or the split of the outstanding shares of Common Stock, then, following the
record date for such combination, the Warrant Price shall be appropriately
increased so that the number of shares of Common Stock issuable upon the
exercise hereof shall be decreased in proportion to such decrease in outstanding
shares.
(c) In case, at any time during the Term, there is a
distribution to the holders of Common Stock by way of a dividend (whether in the
ordinary course or otherwise) or other distribution of any of the property or
assets (including cash) of the Company, the Warrant Price shall be adjusted
immediately after the record date for such distribution or dividend by deducting
from the current Warrant Price then in effect on such record date the amount per
share of the dividend or the other distribution to be paid if payable in cash,
or the fair market value (as determined in good faith by the directors of the
Company, whose determination shall be conclusive in the absence in manifest
error) per share of any property or other assets to be distributed to holders of
Common Stock. To the extent that such distribution or dividend is not made or
paid, as the case may be, the Warrant Price shall be readjusted to the Warrant
Price which was in effect prior to such record date.
(d) All calculations under this Section 5 shall be made
to the nearest cent.
5.2 (a) No adjustment to the Warrant Price (including the
related adjustment to the number of Warrant Shares) shall be required hereunder
unless such adjustment, together with other adjustments carried forward as
provided below, would result in an increase or decrease of at least two percent
(2%) of the Warrant Price; provided that any adjustments which by reason of this
Section 5.2 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 5
shall be made to the nearest one cent or to the nearest whole share, as the case
may be.
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(b) Whenever the Warrant Price shall be adjusted as
provided in Section 5, the Company shall prepare a statement showing the facts
requiring such adjustment and the Warrant Price that shall be in effect after
such adjustment. The Company shall cause a copy of such statement to be sent by
mail, first class postage prepaid, to each Holder of this Warrant at its, his or
her address appearing on the Company's records.
SECTION 6. Ownership.
6.1 Ownership of This Warrant. The Company may deem and treat
the person in whose name this Warrant is registered as the holder and owner
hereof (notwithstanding any notations of ownership or writing hereon made by
anyone other than the Company) for all purposes and shall not be affected by any
notice to the contrary until presentation of this Warrant for registration of
transfer as provided in this Section 6.
6.2 Transfer and Replacement. Neither this Warrant nor any
rights hereunder may be sold, assigned or otherwise transferred without the
consent of the Company. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft or destruction, and, in such case, of
indemnity or security reasonably satisfactory to it, and upon surrender of this
Warrant if mutilated, the Company will make and deliver a new Warrant of like
tenor, in lieu of this Warrant; provided that if the Holder hereof is an
instrumentality of a state or local government, an irrevocable agreement of
indemnity by such Holder shall be sufficient for all purposes of this Section 6,
and no evidence of loss or theft or destruction shall be necessary. This Warrant
shall be promptly cancelled by the Company upon the surrender hereof in
connection with any transfer or replacement. Except in the case of the loss,
theft, destruction or mutilation of a Warrant, the Company shall pay all
expenses, taxes and other charges payable in connection with any transfer or
replacement of this Warrant, other than stock transfer taxes (if any) payable in
connection with a transfer of this Warrant, which shall be payable by the
Holder. Xxxxxx will not transfer this Warrant and the rights hereunder except in
compliance with federal and state securities laws.
SECTION 7. Mergers, Consolidation, Sales. In the case of any proposed
consolidation or merger of the Company with another entity, or the proposed sale
of all or substantially all of its assets to another person or entity, or any
proposed reorganization or reclassification of the capital stock of the Company,
then, as a condition of such consolidation, merger, sale, reorganization or
reclassification, lawful and adequate provision shall be made whereby the Holder
of this Warrant shall thereafter have the right to receive upon the basis and
upon the terms and conditions specified herein, in lieu of the shares of the
Common Stock of the Company immediately theretofore purchasable hereunder, such
shares of stock, securities or assets as may (by virtue of such consolidation,
merger, sale, reorganization or reclassification) be issued or payable with
respect to or in exchange for the number of shares of such Common Stock
purchasable hereunder immediately before such consolidation, merger, sale,
reorganization or reclassification. In any such case appropriate provision shall
be made with respect to the rights and interests of the Holder of this Warrant
to the end that the provisions hereof shall thereafter be applicable as nearly
as may be, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of this Warrant.
SECTION 8. Notices to Holders. If, at any time prior to the exercise
of this Warrant, the Company shall propose:
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(i) to pay a cash dividend or a dividend payable
otherwise than in cash, or any other distribution in respect of the Common Stock
pursuant to, without limitation, any spin-off, split-off or other distribution
of the Company's assets;
(ii) to distribute to all holders of Common Stock
evidences of its indebtedness or assets or securities other than its Common
Stock;
(iii) to offer the holders of its Common Stock the
right to subscribe for or purchase any shares of any class of securities or to
receive any other rights;
(iv) to effect any classification,
reclassification, subdivision or other reorganization or recapitalization of the
Common Stock which the Company is authorized to issue;
(v) to effect a consolidation, merger, or a
conveyance of all or substantially all of the assets of the Company; or
(vi) to effect the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, and in each such case, the Company shall give notice in writing of such
event to the holders, at least 10 days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
shareholders entitled to such dividend, distribution, or subscription rights, or
for the determination of shareholders entitled to vote on such proposed
issuance, classification, reclassification, subdivision, recapitalization,
consolidation, merger, conveyance, dissolution, liquidation or winding up. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. Failure to publish, mail or receive such notice or any
defect therein or in the publication or mailing thereof shall not affect the
validity of any action taken in connection with such dividend, distribution or
subscription rights, or such proposed reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up; provided, however, that any
rights of the holder with respect to any failure of the Company to give notice
as provided herein of any such action shall not be prejudiced by any such
action.
SECTION 9. Fractional Shares. Fractional shares shall not be issued
upon the exercise of this Warrant but in any case where the Holder would, except
for the provisions of this Section 9, be entitled under the terms hereof to
receive a fractional share upon the complete exercise of this Warrant, the
Company shall, upon the exercise of this Warrant for the largest number of whole
shares then called for, pay a sum in cash equal to the excess of the value of
such fractional share (determined in such reasonable manner as may be prescribed
in good faith by the Board of Directors of the Company) over the Warrant Price
for such fractional share.
SECTION 10. Notices. Any notice or other document required or permitted
to be given or delivered to the Holder shall be delivered at, or sent by
certified or registered mail to, the Holder at the address as shall have been
furnished to the Company in writing by the Holder in Holder's Subscription
Agreement relating to the purchase of units. Any notice or other document
required or permitted to be given or delivered to the Company shall be delivered
at, or sent by certified or registered mail to, the Company at 0000 00xx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, or to such other address as shall have been
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furnished in writing to the Holder by the Company. Any notice so addressed and
mailed or otherwise delivered, shall be deemed to be given when actually
received at the address so given herein.
SECTION 11. No Rights as Stockholder; Limitation of Liability. This
Warrant shall not entitle the Holder to any of the rights of a shareholder of
the Company except upon exercise in accordance with the terms hereof. No
provision hereof, in the absence of affirmative action by the Holder to purchase
shares of Common Stock, and no mere enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of the Holder for the
Warrant Price hereunder or as a shareholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
SECTION 12. Law Governing. THE VALIDITY, INTERPRETATION, AND
ENFORCEMENT OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAW PRINCIPLES THEREOF.
SECTION 13. Miscellaneous.
(a) This Warrant shall be binding upon any corporation
or other person or entity succeeding to the Company by merger, consolidation or
acquisition of all or substantially all of the Company's assets.
(b) This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by both parties (or any respective predecessor in interest thereof). The
headings in this Warrant are for purposes of reference only and shall not affect
the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer on _________ __, _____.
Crown Books Corporation
By:
--------------------
Name:
Title:
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FORM OF NOTICE OF EXERCISE
[TO BE SIGNED ONLY UPON EXERCISE OF THE WARRANT]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THE WITHIN WARRANT
The undersigned hereby exercises the right to purchase _________ shares
of Common Stock which the undersigned is entitled to purchase by the terms of
the within Warrant according to the conditions thereof, and herewith
[check one]
[ ] makes payment of $_________
therefor; or
[ ] directs the Company to
cancel $____ of the
principal amount of the
Note surrendered herewith,
as set forth in the
instrument signed by Xxxxxx
as required by Section 2.1
of the Warrant.
All shares to be issued pursuant hereto shall be issued in the name of and the
initial address of such person to be entered on the books of the Company shall
be:
The shares are to be issued in certificates of the following
denominations:
[Type Name of Holder]
By: ______________________
Title: ____________________
Dated:
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FORM OF ASSIGNMENT
(ENTIRE)
[TO BE SIGNED ONLY UPON TRANSFER OF ENTIRE WARRANT]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto _______________________________ all rights of the undersigned
under and pursuant to the within Warrant, and the undersigned does hereby
irrevocably constitute and appoint _______________________________ Attorney to
transfer the said Warrant on the books of the Company, with full power of
substitution.
[Type Name of Holder]
By: ______________________
Title: ____________________
Dated:
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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FORM OF ASSIGNMENT
(PARTIAL)
[TO BE SIGNED ONLY UPON PARTIAL TRANSFER OF WARRANT]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED _________________________ hereby sells, assigns and
transfers unto _______________________________ (i) the rights of the undersigned
to purchase ___ shares of Common Stock under and pursuant to the within Warrant,
and (ii) on a non-exclusive basis, all other rights of the undersigned under and
pursuant to the within Warrant, it being understood that the undersigned shall
retain, severally (and not jointly) with the transferee(s) named herein, all
rights assigned on such non-exclusive basis. The undersigned does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said Warrant on the books of the Company, with full power of
substitution.
[Type Name of Holder]
By: ______________________
Title: ____________________
Dated:
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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