Exhibit 4.5
Form of Warrant Agreement between the Company,
the Underwriter and Continental Stock
Transfer & Trust Company.
PLAY CO. TOYS & ENTERTAINMENT CORP.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
REDEEMABLE WARRANT
WARRANT AGREEMENT
Dated as of
AGREEMENT dated as of , between PLAY CO. TOYS & ENTERTAINMENT
CORP., a Delaware corporation (hereinafter "the Company"), and CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, a New York corporation, as Warrant and Transfer Agent
(hereinafter "the Warrant Agent").
WHEREAS, the Company proposes to issue and sell to the public
an aggregate of 750,000 Shares of Series E Preferred Stock, $.01 par value
(hereinafter referred to as "Series E Preferred Stock" or "Preferred Share(s)")
and 1,500,000 Redeemable Series E Preferred Stock Purchase Warrants ("the
Redeemable Warrants"), each to purchase one Preferred Share at a purchase price
of $5.00 per Preferred Share for a period of four years commencing one year from
the date the Offering closes. The Redeemable Warrants are redeemable by the
Company at any time commencing one year from the Closing Date, upon thirty (30)
days' prior notice, at a redemption price of $.05 each, provided that the
closing bid quotation of the Preferred Stock for at least 20 consecutive trading
days ending on the third day prior to the day on which the Company gives notice,
has been at least 170% of the exercise price of the Warrants being redeemed. The
Redeemable Warrants remain exercisable during the 30 day notice period; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, and exercise of the
Warrants;
NOW, THEREFORE, in consideration of the promises and the
mutual agreements herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby
appoints the Warrant Agent to act for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
Section 2. Form of Warrants. The text of the Warrants and of
the form of election to purchase shares as is printed on the reverse thereof as
now outstanding, is substantially as set forth respectively in Exhibit A
attached hereto. The per share Warrant Price and the number of shares issuable
upon exercise of the Warrants are subject to adjustment upon the occurrence of
certain events, all as hereinafter provided. The Warrants shall be executed on
behalf of the Company by the manual or facsimile signature of the present or any
future President or Vice President of the Company, under its corporate seal,
affixed or in facsimile, attested by the manual or facsimile signature of the
present or any future Secretary or Assistant Secretary of the Company.
The Warrants will be dated as of the date of issuance by the Warrant
Agent either upon initial issuance or upon transfer or exchange.
Section 3. Countersignature and Registration. The Warrant
Agent shall maintain books for the transfer and registration of Warrants. Upon
the initial issuance of the Warrants, the Warrant Agent shall issue and register
the Warrants in the names of the respective holders thereof. The Warrants shall
be countersigned manually or by facsimile by the Warrant Agent (or by any
successor to the Warrant Agent then acting as Warrant Agent under this
Agreement) and shall not be valid for any purpose unless so countersigned.
Warrants may be so countersigned, however, by the Warrant Agent (or by its
successor as warrant agent) and be delivered by the Warrant Agent,
notwithstanding that the persons whose manual or facsimile signatures appear
thereon as proper officers of the Company shall have ceased to be such officers
at the time of such countersignature or delivery.
Section 4. Transfers and Exchanges. The Warrant Agent shall
transfer, from time to time, any outstanding Warrants upon the books to be
maintained by the Warrant Agent for that purpose, upon surrender thereof for
transfer properly endorsed or accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant shall be issued to the
transferee, and the surrendered Warrant shall be delivered by the Warrant Agent.
Warrants so canceled shall be delivered by the Warrant Agent to the Company from
time to time upon request. Warrants may be exchanged at the option of the holder
thereof, when surrendered at the office of the Warrant Agent, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Preferred
Shares.
Section 5. Rights of Redemption by Company. The Warrants are
redeemable by the Company at any time commencing one year from the Closing Date,
upon 30 days' prior notice at a redemption price of $.05 each, provided that the
closing bid quotation of the Preferred Stock for at least 20 consecutive trading
days ending on the third day prior to the day on which the Company gives notice,
has been at least 170% of the exercise price of the Warrants being redeemed. The
holder of any Warrants so called, and not either converted or tendered back to
the Company by the end of the date specified in the Notice of Call, will be
entitled only to the redemption price of such Redeemable Warrant, if redeemed,
and will forfeit his right to so exercise.
Section 6. Exercise of Warrants. Subject to the provisions of
this Agreement, each registered holder of a Warrant shall have the right to
purchase one (1) share of Preferred Stock at a price of $5.00 for a period of
four years, until , 2002, commencing one year from the date the Offering closes.
The Company shall issue and sell to such registered holder of Warrants the
number of fully paid and non-assessable shares of Preferred Stock specified in
such Warrants, upon surrender to the Company at the office of the Warrant Agent
of such Warrants, with the form of election to purchase duly filled in and
signed, and upon payment to the order of the Company for the Warrant exercise
price, determined in accordance with Sections 10 and 11 herein, for the number
of shares in respect of which such Warrants are then exercised. Payment of such
Warrant Price shall be made in cash or by certified check or bank draft or
postal or express money order, payable in United States Dollars to the order of
the Company. No adjustment shall be made for any dividends on any Preferred
Shares issuable upon exercise of any Warrant. Subject to Section 7, upon such
surrender of Warrants, and payment of the Warrant Price as aforesaid, the
Company shall issue and cause to be delivered with all reasonable dispatch to or
upon the written order of the registered holder of such Warrants and in such
name or names as such registered holder may designate, a certificate or
certificates for the largest number of whole Preferred Shares so purchased upon
the exercise of such Warrants. The Company shall not be required to issue any
fraction of a Share of Preferred Stock or make any cash or other adjustment as
provided in Section 12 herein, in respect of any fraction of a Preferred Share
otherwise issuable upon such surrender. Such certificate or certificates 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 Shares as of the date
of the surrender of such Warrants and payment of the Warrant Price as aforesaid;
provided, however, that if at the date of surrender of such Warrants and payment
of such Warrant Price, the transfer books for the Preferred Shares or other
class of stock purchasable upon the exercise of such Warrants shall be closed,
the certificates for the Shares in respect of which such Warrants are then
exercised shall be issuable as of the date on which such books shall be opened
and until such date the Company shall be under no duty to deliver any
certificate for such shares; provided further, however, that the aforesaid
transfer books, unless otherwise required by law or by applicable rule of
national securities exchange, shall not be closed at any one time for a period
longer than 20 days. The rights of purchase represented by the Warrants shall be
exercisable, at the election of the registered holders thereof, either as an
entirety or from time to time for part only of the Shares specified therein and,
in the event that any Warrant is exercised in
respect of less than all of the Shares specified therein at any time prior to
the date of expiration of the Warrant, a new Warrant or Warrants will be issued
to such registered holder for the remaining number of shares specified in the
Warrant so surrendered, and the Warrant Agent is hereby irrevocably authorized
to countersign and to deliver the required new Warrants pursuant to the
provisions of this Section during the warrant exercise period, and the Company,
whenever requested by the Warrant Agent, will supply the Warrant Agent with
Warrants duly executed on behalf of the Company for such purpose.
Section 7. Payment of Taxes. The Company will pay any
documentary stamp taxes attributable to the initial issuance of Preferred Shares
issuable upon the exercise of Warrants; provided, however, that the Company
shall not be required to pay any tax or taxes which may be payable in respect of
any transfer involved in the issue or delivery of any certificates for Preferred
Shares in a name other than that of the registered holder of Warrants in respect
of which such Shares are issued, and in such case, neither the Company nor the
Warrant Agent shall be required to issue or deliver any certificate for
Preferred Shares or any Warrant until the person requesting the same has paid to
the Company the amount of such tax or has established to the Company's
satisfaction that such tax has been paid.
Section 8. Mutilated or Missing Warrants. In case any of the
Warrants shall be mutilated, lost, stolen, or destroyed, the Company may, it its
discretion, issue and the Warrant Agent shall countersign and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant(s),
or in lieu of substitution for the Warrant lost, stolen, or destroyed, a new
Warrant of like tenor and representing an equivalent right or interest, but only
upon receipt of evidence satisfactory to the Company and the Warrant Agent of
such loss, theft, or destruction of such Warrant, and indemnity, if requested,
also satisfactory to them. Applicants for such substitute Warrants shall also
comply with such other reasonable regulations and pay such reasonable charges as
the Company or the Warrant Agent may prescribe.
Section 9. Reservation of Preferred Shares. There have been
reserved, and the Company shall at all times keep reserved, out of the
authorized and unissued Preferred Shares, a number of Shares sufficient to
provide for the exercise of the rights of purchase represented by the Warrants,
and the Transfer Agent for the Preferred Shares and every subsequent transfer
agent for any Shares of the Company's capital stock issuable upon the exercise
of any of the rights of purchase aforesaid are hereby irrevocably authorized and
directed at all times to reserve such number of authorized and unissued Shares
as shall be requisite for such purpose. The Company agrees that all Preferred
Shares issued upon exercise of the Warrants shall be, at the time of delivery of
the certificates for such Preferred Shares, validly issued and outstanding,
fully paid and non-assessable and listed on any national security exchange upon
which the other Preferred Shares are then listed. The Company will file such
Registration Statement pursuant to the Securities Act of 1933 with respect to
the Preferred Shares as may be necessary to permit it to deliver to each person
exercising a Warrant, a Prospectus meeting the requirements of Section 11(a)(3)
of such Securities Act and otherwise complying therewith, and will deliver such
a Prospectus to each such person. The Company will keep a copy of this Agreement
on file with the Transfer Agent for the Preferred Shares and with every
subsequent transfer agent for any Shares of the Company's capital stock issuable
upon the exercise of the rights of purchase represented by the Warrants. The
Warrant Agent is hereby irrevocably authorized to requisition from time to time
such Transfer Agent for stock certificates required to honor outstanding
Warrants. The Company will supply such Transfer Agent with duly executed stock
certificates for such purpose. All Warrants surrendered in the exercise of the
rights thereby evidenced shall be canceled by the Warrant Agent and shall
thereafter be delivered to the Company, and such canceled Warrants shall
constitute sufficient evidence of the number of Preferred Shares which have been
issued upon the exercise of such Warrants. Promptly after the date of expiration
of the Warrants, the Warrant Agent shall certify to the Company the total
aggregate amount of Warrants then outstanding, and thereafter no Preferred
Shares shall be subject to reservation in respect to such Warrants which shall
have expired.
Section 10. Warrant Price. Each Warrant shall allow the holder thereof to
purchase one share of Preferred Stock at a price of $5.00 per whole Share. No
fractional Shares shall be issued for the Warrants.
Section 11. Adjustments. Subject and pursuant to the provisions of this
Section 11, the Warrant Price and number of Preferred Shares subject to this
Warrant shall be subject to adjustment from time to time as hereinafter set
forth.
(A) If the Company shall at any time subdivide its outstanding Preferred
Shares by recapitalization, reclassification, split-up thereof, or other such
issuance without additional consideration, the Warrant Price immediately prior
to such subdivision shall be proportionately decreased and, if the Company shall
at any time combine the outstanding Preferred Shares by recapitalization,
reclassification, or combination thereof, the Warrant Price immediately prior to
such combination shall be proportionately increased. Any such adjustment to the
Warrant Price shall become effective at the close of business on the record date
for such subdivision or combination.
(B) In the event that prior to any Warrant's expiration date the Company
adopts a resolution to merge, consolidate, or sell all or substantially all of
its assets, each Warrant holder upon the exercise of his Warrant will be
entitled to receive the same treatment as the holder of any other Share of
Preferred Stock. In the event the Company adopts a resolution for the
liquidation, dissolution, or winding up of the Company's business, the Company
will give written notice of such adoption of a resolution to the registered
holders of the Warrants. Thereupon, all liquidation and dissolution rights under
the Warrants will terminate at the end of thirty (30) days from the date of the
notice to the extent not exercised within those thirty (30) days.
(C) If any capital reorganization or reclassification of the capital stock
of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation, shall be effected in such a way that holders of Preferred Stock
shall be entitled to receive stock, securities, cash, or assets with respect to
or in exchange for Preferred Stock, then as a condition of such reorganization,
reclassification, consolidation, merger, or sale, the Company or such successor
or purchasing corporation, as the case may be, shall execute with the Warrant
Agent a Supplemental Warrant Agreement providing that each registered holder of
a Warrant shall have the right thereafter and until the expiration date to
exercise such Warrant for the kind and amount of stock securities, cash, or
assets receivable upon such reorganization, reclassification, consolidation,
merger, or sale by a holder of the number of Shares of Preferred Stock for the
purchase of which such Warrant might have been exercised immediately prior to
such reorganization, reclassification, consolidation, merger, or sale, subject
to adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 11.
(D) In case at any time the Company shall declare a dividend or make any
other distribution upon any stock of the Company payable in Preferred Stock,
then such Preferred Stock issuable in payment of such dividend or distribution
shall be deemed to have been issued or sold without consideration.
(E) Upon any adjustment of the Warrant Price as hereinabove provided, the
number of Preferred Shares issuable upon exercise of this Warrant shall be
changed to the number of Shares determined by dividing (i) the aggregate Warrant
Price payable for the purchase of all Shares issuable upon exercise of this
Warrant immediately prior to such adjustment by (ii) the Warrant Price per Share
in effect immediately after such adjustment.
(F) Anything hereinabove to the contrary notwithstanding, no adjustment of
the Warrant Price or in the number of Preferred Shares subject to this Warrant
shall be made upon the issuance or sale by the Company of any Preferred Shares
pursuant to the exercise of any Underwriter's Warrants which may be issued by
the Company pursuant to any Underwriting Agreement between the Company and
Underwriter or pursuant to the issuance of Shares of Preferred Stock upon
exercise of any of the Warrants or pursuant to a stock option plan which may be
adopted by the Company.
(G) No adjustment in the Warrant Price shall be required under Section 11
hereof, unless such adjustment would require an increase or decrease in such
price of at least $.01 provided, however, that any adjustments which by reason
of the foregoing are not required at the time to be made shall be carried
forward and taken into account and included in determining the amount of any
subsequent adjustment; and provided further, however, that in case the Company
shall at any time subdivide or combine the outstanding Preferred Shares or issue
any additional Preferred Shares as a dividend, said amount of $.01 per share
shall forthwith be proportionately increased in the case of a combination or
decreased in the case of a subdivision or stock dividend so as to appropriately
reflect the same.
(H) On the effective date of any new Warrant Price the number of Shares as
to which any Warrant may be exercised shall be increased or decreased so that
the total sum payable to the Company on the exercise of such Warrant shall
remain constant.
(I) The form of Warrant need not be changed because of any change pursuant
to this Article, and Warrants issued after such change may state the same
Warrant Price and the same number of shares as is stated in the Warrants
initially issued pursuant to this Agreement. However, the Company may at any
time in its sole discretion (which shall be conclusive) make any change in the
form of Warrant that the Company may deem appropriate and that does not affect
the substance thereof; and any Warrant thereafter issued or countersigned,
whether in exchange or substitution for an outstanding Warrant or otherwise, may
be in the form as so changed.
Section 12. Fractional Interest. The Company shall not be
required to issue fractions of Preferred Shares on the exercise of Warrants or
any cash or other adjustment in respect of such fractions of Preferred Shares.
If any fraction of a Preferred Share would, except for the provisions of this
Section 12, be issuable on the exercise of any Warrant (or specified portions
thereof), the Company shall issue the largest number of whole shares of
Preferred Stock to which the Warrant Certificate is entitled. All calculations
under this Section 12 shall be made to the nearest whole Share.
Section 13. Notices to Warrantholders.
(A) Upon any adjustment of the Warrant Price and the number of Shares
issuable on exercise of a Warrant, then and in each such case the Company shall
give written notice thereof to the Warrant Agent, which notice shall state the
Warrant Price resulting from such adjustment and the increase or decrease, if
any, in the number of Shares purchasable at such price upon the exercise of a
Warrant, setting forth in reasonable detail the method of calculations and the
facts upon which such calculation is based. The Company shall also publish such
notice once in two Authorized Newspapers. For the purpose of this Agreement, an
Authorized Newspaper shall mean a newspaper customarily published on each
business day, in one or more morning editions or one or more evening editions,
or both (and whether or not it shall be published in Saturday and Sunday
editions or on holidays), printed in the English language and of general
circulation in the Borough of Manhattan, City and State of New York. Failure to
give or publish such notice, or any defect therein, shall not affect the
legality or validity of the subject adjustments.
(B) Intentionally left blank.
(C) Upon any redemption of the Warrants pursuant to Section 5 hereof, then
and in each such case, the Company shall give written notice thereof to the
Warrant Agent, with directions that the Warrant Agent send a copy of each such
notice to each registered holder of Warrants by first class mail, postage
prepaid, at his address appearing on the Warrant register as of the record date
for the determination of the Warrantholders entitled to such documents, which
notice shall state the terms for such redemption, setting forth in reasonable
detail the procedure for redemption and the effect thereof. The Company shall
also publish such notice once in two Authorized Newspapers, one of which shall
be the Wall Street Journal. Failure to give or publish such notice, or any
defect therein, shall not affect the legality or validity of the subject
redemption.
(D) The Company shall cause copies of all financial statements and reports,
proxy statements and other documents as it shall send to its stockholders to be
sent by first class mail, postage prepaid, on the date of mailing to such
stockholders, to each registered holder of Warrants at his address appearing on
the Warrant register as of the record date for the determination of the
stockholders entitled to such documents.
Section 14. Disposition of Proceeds on Exercise of Warrants.
(A) The Warrant Agent shall forward promptly to the Company, with respect
to Warrants exercised, the funds which will be deposited in a special account in
a bank designated by the Company for the benefit of the Company, for the
purchase of Preferred Shares through the exercise of such Warrants.
(B) The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours.
Section 15. Merger or Consolidation or Change of Name of Warrant Agent. Any
corporation or company which may succeed to the business of the Warrant Agent by
any merger or consolidation or otherwise to which the Warrant Agent shall be a
party, 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 any of the
parties hereto, provided that such corporation would be eligible for appointment
as a successor Warrant Agent under the provisions of Section 17 of this
Agreement. In case at the time such successor to the Warrant Agent shall succeed
to the agency created by this Agreement, any of the Warrants shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the original Warrant Agent and deliver such
Warrants so countersigned; and in case at that time any of the Warrants shall
not have been countersigned, any successor to the Warrant Agent may countersign
such Warrants either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrants shall have
the full force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrants shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignature under its prior name and
deliver Warrants so countersigned; and in case at that time any of the Warrants
shall have not been countersigned, the Warrant Agent may countersign such
Warrants either in its prior name or in its changed name; and in all such cases
such Warrants shall have the full force provided in the Warrants and in this
Agreement.
Section 16. Duties of Warrant Agent. 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 the holders of Warrants, by their
acceptance thereof, shall be bound:
(A) The statements of fact and recitals contained herein and in the
Warrants 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. The Warrant
Agent assumes no responsibility with respect to the distribution of the Warrants
except as herein expressly provided.
(B) 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 Warrants to be complied with by the Company.
(C) 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 holder of any Warrant in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with opinion or the advice of such counsel.
(D) The Warrant Agent shall incur no liability or responsibility to the
Company or to the holder of any Warrant for any action taken in reliance on any
notice, resolution, waiver, consent, order, certificate or other papers,
document or instrument believed by it to be genuine and to have been signed,
sent, or presented by the proper party or parties.
(E) 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, 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 reasonable 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, willful misconduct, or bad faith.
(F) 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 registered holders of Warrants 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 Warrants 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 registered holders of the Warrants, as their respective rights or interests
may appear.
(G) The Warrant Agent and any stockholder, director, officer, partner, 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 or otherwise act as fully and free 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.
(H) The Warrant Agent shall act hereunder solely as an agent and not in a
ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own negligence, willful misconduct, or bad faith.
(I) The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder, either itself or by or
through its attorneys, agents, officers, or employees, and the Warrant Agent
shall not be answerable or accountable for any act, default, neglect, or
misconduct of any such attorneys, agents, officers, or employees or for any loss
to the Company resulting from such neglect or misconduct, provided reasonable
care had been exercised in the selection and continued employment thereof.
(J) Any request, direction, election, order, or demand of the Company shall
be sufficiently evidenced by an instrument signed in the name of the Company by
its president or a vice president or its secretary or an assistant secretary or
its treasurer or an assistant treasurer (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Warrant Agent by a copy thereof certified by
the secretary or an assistant secretary of the Company.
Section 17. 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 to the holders of the Warrants notice by mailing such notice to
holders at their addresses appearing on the Warrant register, of such
resignation, specifying a date when such resignation will take effect. The
Warrant Agent may be removed by like notice to the Warrant Agent from the
Company and by like mailing of notice to the holders of the Warrants. If the
Warrant Agent shall resign or be removed 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
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by the registered
holder of a Warrant (who shall, with such notice, submit his Warrant for
inspection by the Company), then the registered holder of any Warrant may apply
to any court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or
by such a court, shall be a bank or trust company or an active transfer Agent,
in good standing, incorporated under the laws of the State of New York or of the
United States of America. 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; but the
former Warrant Agent shall deliver and transfer to the successor Warrant Agent
all canceled Warrants, records, and 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 file or mail any notice provided for in
this Section 17 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 18. Identity of Transfer Agent. Forthwith upon the appointment of
any Transfer Agent for the Preferred Shares or of any subsequent transfer Agent
for Preferred Shares or other shares of the Company's capital stock issuable
upon the exercise of the rights of purchase represented by the Warrants, the
Company will file with the Warrant Agent a statement setting forth the name and
address of such Transfer Agent. The Warrant Agent hereby acknowledges that it
is, at the time of execution hereof, the Transfer Agent, and waives any
statement required herein with respect thereto.
Section 19. Notices. Any notice pursuant to this Agreement to
be given or made by the Warrant Agent or by the registered holder of any Warrant
to the Company shall be sufficiently given or made if sent by first class mail,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent) as follows:
Play Co. Toys & Entertainment Corp.
000 Xxxxxxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Copy to:
Klarman & Associates
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Any notice pursuant to this Agreement to be given or made by the
Company or by the registered holder of any Warrant to or on the Warrant Agent
shall be sufficiently given or made if sent by first class mail, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company) as follows:
Continental Stock Transfer & Trust Company
0 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
Section 20. Supplements and Amendments. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement without
the approval of any holders of Warrants 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 provisions in
regard to matters or questions arising hereunder which the Company and the
Warrant Agent may deem necessary or desirable and which shall not be
inconsistent with the provisions of the Warrants and which shall not adversely
affect the interests of the holders of Warrants.
Section 21. Successors. All the covenants and provisions of this Agreement
by and 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 22. New York Contract. This Agreement shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be construed in accordance with the laws of said State.
Section 23. 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 registered holders of the Warrants, 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
registered holders of the Warrants.
Section 24. Counterparts. This Agreement may be executed in any number of
counterparts,
and each of such counterparts shall be considered an original.
Section 25. Effectiveness. This Agreement shall be deemed binding and
therefore in effect as of, and subject to, the effective date of the
Registration Statement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PLAY CO. TOYS & ENTERTAINMENT CORP.
By:
Xxxxxxx Xxxxx, President
(Seal)
Attest:
Xxxxx X. Xxxxxx, Secretary
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY.
By:
STATE OF CALIFORNIA )
)ss.:
COUNTY OF SAN DIEGO )
On the ____ day of , before me personally came Xxxxxxx Xxxxx,
to me known, who being by me duly sworn, did depose and say that he resides in
California, that he is the President of PLAY CO. TOYS & ENTERTAINMENT CORP., the
corporation described in and which executed the foregoing instrument; that he
knows the seal of said corporation, that the seal is affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the day of , 1997, before me personally came , to me known, who being by
me duly sworn, did depose and say that he resides at
, that he is the Principal of Continental Stock Transfer & Trust Company,
the company described in and which executed the foregoing instrument.
Notary Public
