Exhibit _______
WARRANT TO PURCHASE
45,000 Units
ORLANDO PREDATORS ENTERTAINMENT, INC.
UNDERWRITER'S WARRANT
Dated: July ___, 1997
THIS CERTIFIES that First Midwest Securities, Inc. (herein sometimes
called the "Holder" and/or the "Underwriter") is entitled to purchase from
Orlando Predators Entertainment, Inc., a Florida corporation (the "Company"),
at the price and during the period as hereinafter specified, up to 45,000 Units
of the Company's securities with each Unit (the "Underwriter's Warrant Unit")
consisting of two (2) shares of the Company's no par value per share Common
Stock (the "Warrant Unit Shares") and one Redeemable Warrant (the "Underlying
Warrant") entitling the holder thereof to purchase for $7.50 (the "Underlying
Warrant Exercise Price"), one share of Common Stock (the "Underlying Warrant
Shares") for a term of five (5) years from the effective date of the
Registration Statement described below. The Warrant Unit Shares and the
Underlying Warrant Shares are sometimes referred to herein collectively as the
"Warrant Shares."
This Underwriter's Warrant (the "Underwriter's Warrant") is issued
pursuant to an Underwriting Agreement between the Company and the Underwriter
in connection with a public offering, through the Underwriter, of 450,000 Units
(the "Units") as more fully described in the Underwriting Agreement, (and up to
67,500 additional Units covered by an over-allotment option granted by the
Company to the Underwriter) pursuant to a Registration Statement on Form SB-2
(the "Registration Statement") under the Securities Act of 1933, as amended
(the "Act"), and in consideration of $100 received by the Company for the
Underwriter's Warrant.
1. The rights represented by the Underwriter's Warrant shall be exercised at
the price, subject to adjustment in accordance with Sections 9 and 10 hereof
(the "Exercise Price") and during the periods as follows:
(a) The Underwriter's Warrant shall be numbered and shall be registered
in a warrant register. The Company shall be entitled to treat the registered
owner of any Underwriter's Warrant (the "Warrantholder") as the owner in fact
thereof for all purposes and shall not be bound to recognize any equitable or
other claim to or interest in such Underwriter's Warrant on the part of any
other person, and shall not be liable for any registration or transfer of
Underwriter's Warrants which are registered or to be registered in the name of
a fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with such knowledge of such facts that its
participation therein amounts to gross negligence or bad faith.
(b) During the 12 month period from the Effective Date of the
Registration Statement (the "First Anniversary Date"), the Warrantholder shall
have no right to purchase any Underwriter's Warrant Units hereunder, except
that in the event of any merger, consolidation or sale of substantially all the
assets of the Company as an entirety prior to the First Anniversary Date, the
Warrantholder shall have the right to exercise the Underwriter's Warrant at
such time and into the kind and amount of Underwriter's Warrant Units and other
securities and property (including cash) receivable by a holder of the number
of Underwriter's Warrant Units into which the Underwriter's Warrant would have
been convertible or exercisable immediately prior thereto.
(c) At any time between the first anniversary and the fifth anniversary
of the Effective Date, (the fifth anniversary of the Effective Date being the
"Expiration Date") inclusive, the Warrantholder shall have the option to
purchase Underwriter's Warrant Units hereunder at a price ("Exercise Price") of
$12.00 per Underwriter's Warrant Unit.
(d) At any time between the first anniversary and the fifth anniversary
of the Effective Date, inclusive, the holders of the Underlying Warrants shall
have the option to purchase the number of fully paid and nonassessable
Underlying Warrant Shares which the holder of the Underlying Warrant may at
that time be entitled to purchase on the same terms and conditions as the
Redeemable Warrants offered and sold to the public. The Underlying Warrants
are redeemable by the Company on the same terms and conditions as the
Redeemable Warrants offered and sold to the public, provided, however, only the
Underlying Warrants which have been issued pursuant to an exercise of the
Underwriter's Warrant Units shall be subject to redemption. Holders of the
Underwriter's Warrants and the Underlying Warrants are sometimes herein
referred to collectively as "Warrantholders."
(e) After the Expiration Date, the Warrantholder shall have no right to
purchase any Underwriter's Warrant Units hereunder.
2. The rights represented by the Underwriter's Warrant or Underlying
Warrant may be exercised at any time within the periods above specified, in
whole or in part, by (i) the surrender of the Underwriter's Warrant or
Underlying Warrant (with the purchase form at the end hereof properly executed)
at the principal executive office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the
Warrantholder at the address of the Warrantholder appearing on the books of the
Company); (ii) payment to the Company of the Exercise Price then in effect for
the number of Underwriter's Warrant Units or Underlying Warrant Shares, as the
case may be, specified in the above-mentioned purchase form together with
applicable transfer taxes, if any; and (iii) delivery to the Company of a duly
executed agreement signed by the person(s) designated in the purchase form to
the effect that such person(s) agree(s) to be bound by the provisions of
paragraph 7 and subparagraphs (b), (c) and (d) of paragraph 8 hereof. The
Underwriter's Warrant or Underlying Warrant shall be deemed to have been
exercised, in whole or in part to the extent specified, immediately prior to
the close of business on the date the Underwriter's Warrant or Underlying
Warrant is surrendered and payment is made in accordance with the foregoing
provisions of this paragraph 2.
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3. Upon such surrender of an Underwriter's Warrant or Underlying Warrant
and payment of the Exercise Price or Underlying Warrant Exercise Price, as
applicable, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the Warrantholder
exercising such Warrant or Underlying Warrant and in such name or names as such
Warrantholder may designate, a certificate or certificates for the number of
Warrant Units Shares or Underlying Warrant Shares or Underlying Warrants, as
the case may be, so purchased upon the exercise of such Underwriter's Warrant
or Underlying Warrant; and in the case of a fractional Warrant Share and/or
Underlying Warrant, such fraction shall be rounded to the nearest whole Warrant
Share and/or Underlying Warrant otherwise issuable upon such surrender. Such
certificate, certificates or Underlying Warrants shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become a holder of record of such Warrant Unit Shares, Underlying Warrants
and/or Underlying Warrant Shares, as the case may be, as of the date of receipt
by the Company or the warrant agent, if any, of such Warrant or Underlying
Warrant and payment of the applicable Exercise Price or Underlying Warrant
Exercise Price; provided, however, that if, at the date of surrender of such
Warrant or Underlying Warrant and payment of the applicable Exercise Price or
Underlying Warrant Exercise Price therefor, the transfer books for the Common
Stock or other class of stock purchasable upon the exercise of such
Underwriter's Warrants or Underlying Warrants shall be closed, the certificates
for the components of the Underwriter's Warrant Units or Underlying Warrant
Shares, as the case may be, in respect of which such Underwriter's Warrant or
Underlying Warrant is then exercised shall be issuable as of the date on which
such books shall next be opened (whether before or after the date the
Underwriter's Warrant or Underlying Warrants would otherwise terminate (the
"Termination Date")) and until such date the Company shall be under no duty to
deliver any Warrant Shares or Underlying Warrants. The rights of purchase
represented by the Underwriter's Warrants and Underlying Warrants shall be
exercisable, at the election of the Warrantholders thereof, either in full or
from time to time in part and, in the event that an Underwriter's Warrant or
Underlying Warrant is exercised in respect of less than all of the
Underwriter's Warrant Units or Underlying Warrant Shares purchasable on such
exercise at any time prior to the Termination Date, a new Warrant and/or
Underlying Warrant evidencing the remaining Underwriter's Warrants and/or
Underlying Warrants will be issued; and the Company shall deliver, or the
warrant agent, if any, is hereby irrevocably authorized to countersign and to
deliver the required new Warrant and/or Underlying Warrant pursuant to the
provisions of this Section; and the Company whenever required by the warrant
agent, if any, and will supply the warrant agent with Underwriter's Warrant or
Underlying Warrant duly executed on behalf of the Company for such purpose.
4. The Underwriter's Warrant shall not be transferred, sold, assigned,
or hypothecated for a period of one year commencing on the Effective Date
except that it may be transferred to successors of the Warrantholder, and may
be assigned in whole or in part to any person who is an officer of the
Warrantholder or to any member of the selling group and/or the officers or
partners thereof during such period. Any such assignment shall be effected by
the Warrantholder by (i) executing the form of assignment at the end hereof and
(ii) surrendering the Underwriter's Warrant for cancellation at the office or
agency of the Company referred to in paragraph 2 hereof, accompanied by a
certificate (signed by an officer of the Warrantholder
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if the Warrantholder is a corporation), stating that each transferee is a
permitted transferee under this paragraph 4; whereupon the Company shall
issue, in the name or names specified by the Warrantholder (including the
Warrantholder) a new Underwriter's Warrant or Warrants of like tenor and
representing in the aggregate rights to purchase the same number of
Underwriter's Warrant Units as are purchasable hereunder. Such transfers
shall be made in compliance with the rules and regulations of the National
Association of Securities Dealers ("NASD") as well as the Act, the Exchange
Act of 1934, as amended and the respective rules and regulations promulgated
thereunder.
5. The Company covenants and agrees that all Warrant Unit Shares and
Underlying Warrant Shares issued hereunder will, upon issuance, be duly and
validly issued, fully paid and nonassessable, and no personal liability will
attach to the holder thereof. The Company further covenants and agrees that,
during the periods within which the Underwriter's Warrant and the Underlying
Warrant may be exercised, the Company will at all times have authorized and
reserved a sufficient number of Shares.
6. The Underwriter's Warrant and the Underlying Warrants shall not
entitle the Warrantholder to any voting rights or other rights as a shareholder
of the Company.
7. (a) If at any time for a period of four (4) years commencing one (1)
year from the Effective Date, the Company files a registration statement under
the 1933 Act which relates to a current offering of securities of the Company
(except a Registration Statement on Form S-4, S-8 or any other inappropriate
form), such registration statement and the prospectus included therein shall
also, at the written request of the Company by any of the then owners of the
Underwriter's Warrants, Warrant Units, Underlying Warrants or Warrant Shares
(the "Owners"), include and relate to the Underlying Warrants and/or Warrant
Shares issuable upon exercise of such Underwriter's Warrants and/or Underlying
Warrants so as to permit the public sale thereof in compliance with the 1933
Act. The Company shall give written notice to the Owners of its intention to
file a registration statement under the 1933 Act relating to a current offering
of the securities of the Company, at least 30 days prior to the filing of such
registration statement, and the written request provided for in the first
sentence of this subsection shall be made by the Owners at least 10 days prior
to the date specified in the notice as the date on which the Company intends to
file such registration statement. Neither the delivery of such notice by the
Company nor of such request by the Owners shall in any way obligate the Company
to file such registration statement and, notwithstanding the filing of such
registration statement, the Company may, at any time prior to the effective
date thereof, determine not to offer those securities to which such
registration statement relates, without liability to the Owners, except that
the Company shall pay such expenses incurred in connection with the preparation
and filing of such registration statement and as otherwise set forth in
subsection (d) hereof.
(b) In addition, for a period of four (4) years commencing one (1) year
from the Effective Date, upon written notice at any time from a Majority Holder
(as such term is defined in subsection (f) of this Section 7) that he, she or
it contemplates the transfer of all or any part of his, her or its Underlying
Warrants or Warrant Shares under such circumstances that a public
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offering thereof would be involved within the meaning of the 1933 Act, the
Company, as promptly as possible after the receipt of such notice, shall
file, at its expense, a post-effective amendment or a new registration
statement with respect to the offering, sale or other disposition of the
Underlying Warrants and/or Warrant Shares as to which the Company shall have
received such notice. Within 10 days after receiving any such notice, the
Company shall give notice to the other Owners advising them that the Company
is proceeding with such post-effective amendment or new registration
statement and offering to include therein the Underlying Warrants and/or
Warrant Shares of such Owners. The Company shall not be obligated to any
such other Owner unless such other Owner shall accept such offer by written
notice to the Company within 30 days of the Company's notice. The Owners
will bear the expense of fees of counsel for the Owners and any sales
commissions for the Underlying Warrants and/or Warrant Shares sold by the
Owners. In no event shall the Company be required to file a post-effective
amendment or a new registration statement pursuant to the requirements of
this subsection (b) more than once.
(c) In any exercise of the registration rights afforded pursuant to
subsection (a) and (b) of this Section 7, the Company shall:
(i) Supply to the Owner or its designee, as representative of the Owners
intending to make a public distribution of their Underlying Warrants and/or
Warrant Shares (the holder of the Underwriter's Warrant by his, her or its
receipt of the Underwriter's Warrant and/or Underlying Warrant thereby
acknowledging his, her or its appointment of the Owners' representative or
its designee as his, her or its representative for purposes of this
Agreement), four executed copies of each post-effective amendment or
registration statement and as many copies of the preliminary and final
prospectus which shall have been prepared in conformity with the
requirements of the 1933 Act and the rules and regulations promulgated
thereunder and such other documents as the representative of the Owners
shall reasonably request;
(ii) Cooperate in taking such action as may be necessary to register or
qualify the Underlying Warrants and/or Warrant Shares under the securities
acts or blue sky laws of such jurisdictions as the representative of the
Owners shall reasonably request and the Company shall do any and all other
acts and things which may be necessary or advisable to enable the Owners
to consummate such proposed sale or other disposition of the Underlying
Warrants and/or Warrant Shares in any such jurisdiction; provided,
however, that in no event shall the Company be obligated, in connection
therewith, to qualify to do business or to file a general consent to
service of process in any jurisdiction where it shall not then be so
qualified; and
(iii) Use its best efforts to cause any such post-effective amendment or
new registration statement to become effective and remain effective for a
period of not less than 12 months after the initial effectiveness thereof.
The Company shall
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cooperate in taking such other action as may be necessary to permit the
public sale or other disposition of the Underlying Warrants and/or Warrant
Shares by the Owners.
(d) The Company shall comply with the requirements of subsections (a) and
(b) of this Section (including the related requirements of subsection (c) of
this Section), at its own expense, including the costs to register/qualify the
securities under the securities laws of those states as the Owners shall
reasonably request; but excluding underwriting commissions, transfer taxes and
underwriter's expense allowance attributable to the securities being offered by
the Owners.
(e) The term "Majority Holder" as used in this Section shall include any
owner or combination of owners of Underwriter's Warrants, Underlying Warrants
and/or Warrant Shares, in any combination, if the aggregate amount of:
A. the Warrant Unit Shares and/or Underlying Warrant Shares then
held by him, her, it or among them, plus
B. the Warrant Unit Shares and/or Underlying Warrant Shares then
issuable upon exercise of the Underwriter's Warrants and/or Underlying Warrants
then held by him, her, it or among them would constitute more than fifty
percent of the Underwriter's Warrant Unit Shares and/or Underlying Warrant
Shares originally issuable upon exercise of all of the Underwriter's Warrants
and Underlying Warrants.
(f) The provisions contained herein shall continue in effect regardless
of the exercise or surrender of any of the Warrants. Notwithstanding anything
in this Section 7 to the contrary, the Company shall not be obligated to
register any Underlying Warrants or Underlying Warrant Shares if the Underlying
Warrants shall have expired unexercised or if the Underlying Warrants shall
have been redeemed by the Company; and the Underlying Warrant Shares shall not
be used to calculate a Majority Holder if the Underlying Warrants shall have
expired unexercised or shall have been redeemed by the Company.
8. (a) Whenever pursuant to paragraph 7 a registration statement
relating to the Underlying Warrants and/or Warrant Shares is filed under the
Act, amended or supplemented, the Company will indemnify and hold harmless each
holder of the securities covered by such registration statement, amendment or
supplement (such holder being hereinafter called the "Distributing Holder"),
and each person, if any, who controls (within the meaning of the Act) the
Distributing Holder, and each underwriter (within the meaning of the Act) of
such securities and each person, if any, who controls (within the meaning of
the Act) any such underwriter, against any losses, claims, damages or
liabilities, joint or several, to which the Distributing Holder, any such
controlling person or any such underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities, or actions
in respect thereof, arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any such
registration statement or any preliminary prospectus or final
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prospectus constituting a part thereof or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and will reimburse
the Distributing Holder or such controlling person or underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in said registration
statement, said preliminary prospectus, said final prospectus or said
amendment or supplement in reliance upon and in conformity with written
information furnished by such Distributing Holder or any other Distributing
Holder for use in the preparation thereof.
(b) The Distributing Holder will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed said registration
statement and such amendments and supplements thereto, and each person, if any,
who controls the Company (within the meaning of the Act) against any losses,
claims, damages or liabilities, joint or several, to which the Company or any
such director, officer or controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities, or
actions in respect thereof, arise out of or are based upon any untrue or
alleged untrue statement of any material fact contained in said registration
statement, said preliminary prospectus, said final prospectus, or said
amendment or supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in said registration statement, said
preliminary prospectus, said final prospectus or said amendment or supplement
in reliance upon and in conformity with written information furnished by such
Distributing Holder for use in the preparation thereof; and will reimburse the
Company or any such director, officer or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under this paragraph 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party, give the
indemnifying party notice of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this paragraph 7.
(d) In case any such action is brought against any indemnified party, and
it notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such
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indemnified party under this paragraph 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No settlement
shall be made without the consent of the indemnifying party.
9. In case of any reclassification, capital reorganization or other
change of outstanding Shares of Common Stock, or in case of any consolidation
or merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification, capital, reorganization or
other change of outstanding Shares of Common Stock), or in case of any sale or
conveyance to another corporation of the property of the Company as, or
substantially as, an entirety (other than a sale/leaseback, mortgage or other
financing transaction), the Company shall cause effective provision to be made
so that each holder of this Warrant shall have the right thereafter, by
exercising such Warrant, to purchase the kind and number of Shares of stock or
other securities or property (including cash) receivable upon such
reclassification, capital reorganization or other change, consolidation,
merger, sale or conveyance by a holder of the number of Shares of Common Stock
that might have been purchased upon exercise of such Warrant, immediately prior
to such reclassification, capital reorganization or other change,
consolidation, merger, sale or conveyance. The foregoing provision shall
similarly apply to successive reclassifications, capital reorganizations and
other changes of outstanding Shares of Common Stock and to successive
consolidations, mergers, sales or conveyances.
10. If, prior to the expiration of this Warrant by exercise or by its
terms the Company shall issue any of its shares of Common Stock as a share
dividend or subdivide the number of outstanding shares of Common Stock into a
greater number of shares, then, in either such case, the Exercise Price per
Underwriter's Warrant Unit shall be proportionately reduced, and the number of
Underwriter's Warrant Units at the time purchasable pursuant to this Warrant
shall be proportionately increased; and conversely, if the Company shall
contract the number of outstanding shares of Common Stock by combining such
shares into a smaller number of shares, then, in such case, the Exercise Price
per Underwriter's Warrant Unit in effect at the time of such action shall be
proportionately increased and the number of Underwriter's Warrant Units at that
time purchasable pursuant to this Warrant shall be proportionately decreased.
If the Company shall, at any time during the life of this Warrant declare a
dividend payable in cash on its shares of Common Stock and shall at
substantially the same time offer to its shareholders a right to purchase new
shares of Common Stock from the proceeds of such dividend or for an amount
substantially equal to the dividend, all shares of Common Stock so issued
shall, for the purpose of this Warrant, be deemed to have been issued as a
share dividend. Any dividend paid or distributed upon the shares of Common
Stock in shares of any other class of securities convertible into shares of
Common Stock shall be treated as a dividend paid in shares of Common Stock to
the extent that shares of Common Stock are issuable upon the conversion
thereof.
11. This Agreement shall be governed by and construed in accordance with
the internal substantive laws of the State of Wisconsin, without regard for the
conflict of laws.
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IN WITNESS WHEREOF, Orlando Predators Entertainment, Inc. has caused this
Underwriter's Warrant to be signed by its duly authorized officers under its
corporate seal and this Underwriter's Warrant to be dated ____________________,
1997.
ORLANDO PREDATORS ENTERTAINMENT, INC.
By
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Xxxx Xxxxxxxxxx, President
Attest:
--------------------------------
______________, Secretary
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PURCHASE FORM
(To be signed only upon exercise of Underwriter's Warrant)
The undersigned, the holder of the foregoing Underwriter's Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such
Underwriter's Warrant for, and to purchase thereunder, _________ Units
("Unit") of Orlando Predators Entertainment, Inc. with each Unit comprised of
two (2) shares of Orlando Predators, Entertainment, Inc. no par value common
stock and one (1) warrant to purchase an additional share of such common stock
at $7.50 per share and herewith makes payment of $__________ therefor and
requests that the certificates for Units be issued in the name(s) of, and
delivered to ______________________________, whose address(es) is (are):
________________________________.
Dated: _________________, 19__
By:
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TRANSFER FORM
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto _________________________ the right to purchase Shares represented by the
foregoing Underwriter's Warrant to the extent of _________ Units and appoints
_____________________ attorney to transfer such rights on the books of Orlando
Predators Entertainment, Inc., with full power of substitution in the premises.
Dated: _________________, 19__
By:
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