Exhibit 4.13
NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND NONE OF SUCH SECURITIES MAY BE SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION
STATEMENT UNDER THE ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT
TO SUCH SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION
UNDER THE ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN
OPINION OF COUNSEL TO ODYSSEY PICTURES CORPORATION (THE "COMPANY"), OR OTHER
COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY, THAT THE PROPOSED DISPOSITION IS
CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE ACT AS WELL AS ANY APPLICABLE
"BLUE SKY" OR OTHER STATE SECURITIES LAW.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON _______, 2000.
ODYSSEY PICTURES CORPORATION
COMMON STOCK
CLASS A PURCHASE WARRANT
The Transferability of this Warrant is
Restricted as Provided in Section 3
100,000 Warrants
(Subject to Adjustments
As Provided in Section 5 Hereof)
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by ODYSSEY PICTURES CORPORATION, a Nevada corporation
(the "Company"), __________is hereby granted the right to purchase, at the
initial exercise price of $.75 per share (subject to adjustments as provided in
Section 5 hereof), at any time from _______, 1997 (being the date which is three
months after the issue date of this Warrant), until 5:00 P.M. New York City time
on _______, 2000 (being the date which is three years after the issue date of
this Warrant), 100,000 shares (the "Shares") of the Company's Common Stock, par
value $.01 per share (the "Common Stock").
Each Common Stock Purchase Warrant (the "Warrant") initially is
exercisable at a price of $.75 per Share payable in cash or by certified or
official bank check in New York Clearing House funds, subject to adjustments as
provided in Section 5 hereof. Upon surrender of this Warrant at the offices of
the Company, with the annexed Subscription Form duly executed, together with
payment of the Purchase Price (as hereinafter defined) for the Shares purchased,
the registered holder of this Warrant (the "Holder") shall be entitled to
receive a certificate or certificates for the Shares so purchased.
1
1. Exercise of Warrant.
The purchase rights represented by this Warrant are exercisable at the
option of the Holder, in whole or in part (but not as to fractional shares
underlying this Warrant), during the period in which this Warrant may be
exercised as set forth above. In the case of the purchase of fewer than all the
Shares purchasable under this Warrant, the Company shall cancel this Warrant
upon the surrender hereof and shall execute and deliver to the Holder a new
Warrant of like tenor for the balance of the Shares purchasable hereunder.
2. Issuance of Certificates.
Upon the exercise of this Warrant and payment in full for the Shares, the
issuance of a certificate or certificates for Shares underlying this Warrant
shall be made forthwith (and in any event within five (5) business days
thereafter) without charge to the Holder including, without limitation, any tax
which may be payable in respect of the issuance thereof, and such certificates
shall be issued in the name of, or (subject to the Provisions of Section 3.1
hereof) in such names as may be directed by, the Holder; provided, however, that
the Company shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such certificates
in a name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid. The certificates representing the shares underlying this
Warrant shall be executed by the manual or facsimile signature of the Chairman
or the Chief Executive Officer, and the President or the Secretary of the
Company holding office at the time such Shares are issued.
3. Restriction on Transfer.
Neither this Warrant nor any of the securities issuable upon exercise of
this Warrant have been registered under the Securities Act of 1933, as amended
(the "Act"), and none of such securities may be offered, sold, pledged,
hypothecated, assigned or transferred except (i) pursuant to a registration
statement under the Act which has become effective and is current with respect
to such securities or (ii) pursuant to a specific exemption from registration
under the Act but only upon a Holder hereof having first obtained the written
opinion of counsel to the Company, or other counsel reasonably acceptable to the
Company, that the proposed disposition is consistent with all applicable
provisions of the Act as well as any applicable "Blue Sky" or other state
securities law. Upon exercise, in part or in whole, of this Warrant, each
certificate issued representing the Shares underlying this Warrant shall bear a
legend to the foregoing effect.
2
4. Price.
4.1 Initial and Adjusted Purchase Price. The initial Purchase Price shall
be $.75 per share. The adjusted Purchase Price shall be the price which shall
result from time to time from any and all adjustments of the initial Purchase
Price in accordance with the provisions of Section 5 hereof.
4.2 Purchase Price. The term "Purchase Price" herein shall mean the
initial purchase price per Share or the adjusted purchase price per share,
depending upon the context.
5. Adjustments of Purchase price and Number of Shares.
In the event that, prior to the issuance by the Company of all of the
Shares issuable upon exercise of this Warrant, there shall be any change in the
outstanding Common Stock by reason of the declaration of stock dividends, or
through a recapitalization resulting from stock splits or combinations, without
the payment to the Company of any compensation therefor in money, services or
property, the remaining Shares still subject to this Warrant and the Purchase
Price thereof shall be appropriately adjusted (but without regard to fractions)
by the Board of Directors of the Company to reflect such change.
6. Merger or Consolidation.
In case of any consolidation of the Company with, or merger of the Company
with or into, another corporation (other than a consolidation or merger which
does not result in any reclassification or change of the outstanding Common
Stock), the corporation formed by such consolidation or merger shall execute and
deliver to the Holder a supplemental warrant agreement providing that the Holder
shall have the right thereafter (until the expiration of such Warrant) to
receive, upon exercise of his Warrant, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger
by a Holder of the number of shares of Common Stock for which his Warrant might
have been exercised immediately prior to such consolidation, merger, sale or
transfer. Such supplemental warrant agreement shall provide for the adjustments
which shall be identical to the adjustments provided in Section 5. The above
provisions of this Section 6 shall similarly apply to successive consolidations
or mergers.
7. Exchange or Replacement of Warrant.
This Warrant is exchangeable without expense, upon the surrender hereof by
the registered Holder at the principal executive office of the Company, for a
new Warrant of like tenor
3
and date representing in the aggregate the right to purchase the same number of
Shares as are purchasable hereunder in such denominations as shall be designated
by the Holder hereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonable satisfactory to
it, and reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new Warrant of like tenor, in lieu of this
Warrant.
8. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of Shares on the exercise of this Warrant, nor shall it be required to
issue scrip or pay cash in lieu of fractional interests, it being the intention
of the parties that all fractional interests shall be eliminated.
9. Reservation of Securities.
The Company shall at all times reserve and keep available out of its
authorized Common Stock, solely for the purpose of issuance upon the exercise of
this Warrant, such number of Shares as shall be issuable upon the exercise
hereof. The Company covenants and agrees that, upon the exercise of this Warrant
and payment of the Purchase Price therefor, all Shares issuable upon such
exercise shall be duly and validly issued, fully paid and non-assessable.
10. Redemption of Warrants.
At any time after __________, 1998 (such date being the date which is
twelve months after the issue date of this Warrant), the Company shall have the
right, on thirty (30) days' prior written notice to the Holder hereof (the
"Notice Period"), to redeem this Warrant at a price of $.01 per Warrant,
provided that the average closing bid price of the Company's Common Stock for
the ten day trading period immediately preceding the giving of such notice is
not less that 50% greater than the exercise price of this Warrant (i.e., not
less than $1.125, subject to any adjustments as provided herein). Nothing
contained herein shall be deemed to limit or impair the Holder's right to
exercise this Warrant in accordance with its terms during the Notice Period.
4
11. Notices to Warrant Holders.
Nothing contained in this Warrant shall be construed as conferring upon
the Holder hereof the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company.
12. Notices.
All notices, requests, consents and other communications required or
permitted hereunder shall be in writing and shall be personally delivered,
telegraphed or sent by certified, registered, or express mail, postage prepaid,
and shall be deemed given when so delivered personally, telegraphed or, if
mailed, five days after the date of deposit in the United States mails, as
follows:
(a) If to the Company, to:
Odyssey Pictures Corporation
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, CEO
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) If to the registered Holder, to the address of such Holder as shown on
the books of the Company.
13. Successors.
All covenants, agreements, representations and warranties contained in
this Warrant shall bind the parties hereto and their respective heirs,
executors, administrators, distributees, successors and assigns.
14. Headings.
The headings in this Warrant are inserted for purposes of convenience only
and shall have no substantive effect.
5
15. Law Governing.
This Warrant is delivered in the State of New York and shall be construed
and enforced in accordance with, and governed by, the laws of the State of New
York, without giving effect to conflicts of laws principles. Each of the Company
and the Holder hereby agrees that any dispute or controversy arising out of this
Warrant shall be adjudicated in a court located in New York City, and hereby
submits to the exclusive jurisdiction of the courts of the State of New York
located in New York, New York and of the federal courts in the Southern District
of New York, and irrevocably waives any objection each now or hereafter may have
respecting the venue of such action or proceeding brought in such a court or
respecting the fact that such court is an inconvenient forum, and consents to
the service of process in any such action or proceeding by means of registered
or certified mail, return receipt requested.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its corporate name by a duly authorized officer and has caused its corporate
seal to be affixed hereto on the date first above written.
ODYSSEY PICTURES CORPORATION
By:_____________________________________
Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
6
SUBSCRIPTION FORM
(To be Executed by the Registered Holder
in Order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to
purchase _____________ Shares represented by this Warrant in accordance with the
conditions hereof and herewith makes payment of the Purchase Price of such
Shares in full.
Date:__________________
______________________________________
(Signature)
______________________________________
(Print Name)
______________________________________
(Social Security Number or
Taxpayer's Identification
Number)
7
Exhibit 4.13
NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND NONE OF SUCH SECURITIES MAY BE SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION
STATEMENT UNDER THE ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT
TO SUCH SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION
UNDER THE ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN
OPINION OF COUNSEL TO ODYSSEY PICTURES CORPORATION (THE "COMPANY"), OR OTHER
COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY, THAT THE PROPOSED DISPOSITION IS
CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE ACT AS WELL AS ANY APPLICABLE
"BLUE SKY" OR OTHER STATE SECURITIES LAW.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON , 2000.
ODYSSEY PICTURES CORPORATION
COMMON STOCK
CLASS B PURCHASE WARRANT
The Transferability of this Warrant is
Restricted as Provided in Section 3
100,000 Warrants
(Subject to Adjustments
As Provided in Section 5 Hereof)
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by ODYSSEY PICTURES CORPORATION, a Nevada corporation
(the "Company"), ____________ is hereby granted the right to purchase, at the
initial exercise price of $1.00 per share (subject to adjustments as provided in
Section 5 hereof), at any time from __________, 1997 (being the date which is
five months after the issue date of this Warrant), until 5:00 P.M. New York City
time on __________, 2000 (being the date which is three years after the issue
date of this Warrant), 100,000 shares (the "Shares") of the Company's Common
Stock, par value $.01 per share (the "Common Stock").
Each Common Stock Class B Purchase Warrant (the "Warrant" or "Class B
Warrant") initially is exercisable at a price of $1.00 per Share payable in cash
or by certified or official bank check in New York Clearing House funds, subject
to adjustments as provided in Section 5 hereof. Upon surrender of this Warrant
at the offices of the Company, with the annexed Subscription Form duly executed,
together with payment of the Purchase Price (as hereinafter defined) for the
Shares purchased, the registered holder of this Warrant (the "Holder") shall be
entitled to receive a certificate or certificates for the Shares so purchased.
8
1. Exercise of Warrant.
The purchase rights represented by this Warrant are exercisable at the
option of the Holder, in whole or in part (but not as to fractional shares
underlying this Warrant), during the period in which this Warrant may be
exercised as set forth above. In the case of the purchase of fewer than all the
Shares purchasable under this Warrant, the Company shall cancel this Warrant
upon the surrender hereof and shall execute and deliver to the Holder a new
Warrant of like tenor for the balance of the Shares purchasable hereunder.
2. Issuance of Certificates.
Upon the exercise of this Warrant and payment in full for the Shares, the
issuance of a certificate or certificates for Shares underlying this Warrant
shall be made forthwith (and in any event within five (5) business days
thereafter) without charge to the Holder including, without limitation, any tax
which may be payable in respect of the issuance thereof, and such certificates
shall be issued in the name of, or (subject to the Provisions of Section 3.1
hereof) in such names as may be directed by, the Holder; provided, however, that
the Company shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such certificates
in a name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid. The certificates representing the shares underlying this
Warrant shall be executed by the manual or facsimile signature of the Chairman
or the Chief Executive Officer, and the President or the Secretary of the
Company holding office at the time such Shares are issued.
3. Restriction on Transfer.
Neither this Warrant nor any of the securities issuable upon exercise of
this Warrant have been registered under the Securities Act of 1933, as amended
(the "Act"), and none of such securities may be offered, sold, pledged,
hypothecated, assigned or transferred except (i) pursuant to a registration
statement under the Act which has become effective and is current with respect
to such securities or (ii) pursuant to a specific exemption from registration
under the Act but only upon a Holder hereof having first obtained the written
opinion of counsel to the Company, or other counsel reasonably acceptable to the
Company, that the proposed disposition is consistent with all applicable
provisions of the Act as well as any applicable "Blue Sky" or other state
securities law. Upon exercise, in part or in whole, of this Warrant, each
certificate issued representing the Shares underlying this Warrant shall bear a
legend to the foregoing effect.
9
4. Price.
4.1 Initial and Adjusted Purchase Price. The initial Purchase Price shall
be $1.00 per share. The adjusted Purchase Price shall be the price which shall
result from time to time from any and all adjustments of the initial Purchase
Price in accordance with the provisions of Section 5 hereof.
4.2 Purchase Price. The term "Purchase Price" herein shall mean the
initial purchase price per Share or the adjusted purchase price per share,
depending upon the context.
5. Adjustments of Purchase price and Number of Shares.
In the event that, prior to the issuance by the Company of all of the
Shares issuable upon exercise of this Warrant, there shall be any change in the
outstanding Common Stock by reason of the declaration of stock dividends, or
through a recapitalization resulting from stock splits or combinations, without
the payment to the Company of any compensation therefor in money, services or
property, the remaining Shares still subject to this Warrant and the Purchase
Price thereof shall be appropriately adjusted (but without regard to fractions)
by the Board of Directors of the Company to reflect such change.
6. Merger or Consolidation.
In case of any consolidation of the Company with, or merger of the Company
with or into, another corporation (other than a consolidation or merger which
does not result in any reclassification or change of the outstanding Common
Stock), the corporation formed by such consolidation or merger shall execute and
deliver to the Holder a supplemental warrant agreement providing that the Holder
shall have the right thereafter (until the expiration of such Warrant) to
receive, upon exercise of his Warrant, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger
by a Holder of the number of shares of Common Stock for which his Warrant might
have been exercised immediately prior to such consolidation, merger, sale or
transfer. Such supplemental warrant agreement shall provide for the adjustments
which shall be identical to the adjustments provided in Section 5. The above
provisions of this Section 6 shall similarly apply to successive consolidations
or mergers.
7. Exchange or Replacement of Warrant.
This Warrant is exchangeable without expense, upon the surrender hereof by
the registered Holder at the principal executive office of the Company, for a
new Warrant of like tenor
10
and date representing in the aggregate the right to purchase the same number of
Shares as are purchasable hereunder in such denominations as shall be designated
by the Holder hereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonable satisfactory to
it, and reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new Warrant of like tenor, in lieu of this
Warrant.
8. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of Shares on the exercise of this Warrant, nor shall it be required to
issue scrip or pay cash in lieu of fractional interests, it being the intention
of the parties that all fractional interests shall be eliminated.
9. Reservation of Securities.
The Company shall at all times reserve and keep available out of its
authorized Common Stock, solely for the purpose of issuance upon the exercise of
this Warrant, such number of Shares as shall be issuable upon the exercise
hereof. The Company covenants and agrees that, upon the exercise of this Warrant
and payment of the Purchase Price therefor, all Shares issuable upon such
exercise shall be duly and validly issued, fully paid and non-assessable.
10. Redemption of Warrants.
The Company and the Holder acknowledge that the Company has issued Common
Stock Class A Purchase Warrants to the Holder hereof (the "Class A Warrants")
simultaneously with the delivery of this Class B Warrant, and that the Class A
Warrants are subject to redemption at any time after twelve months from the date
of issue thereof upon certain terms and conditions. At any time after the date
which is six months after the date the Company gives notice to the Holder of the
proposed redemption of the Holder's Class A Warrants, the Company shall have the
right, on thirty (30) days' prior written notice to the Holder hereof (the
"Notice Period"), to redeem this Class B Warrant at a price of $.01 per Warrant,
provided that the average closing bid price of the Company's Common Stock for
the ten day trading period immediately preceding the giving of such notice is
not less that 50% greater than the exercise price of this Class B Warrant (i.e.,
not less than $1.50,
11
subject to any adjustments as provided herein). Nothing contained herein shall
be deemed to limit or impair the Holder's right to exercise this Class B Warrant
in accordance with its terms during the Notice Period.
11. Notices to Warrant Holders.
Nothing contained in this Warrant shall be construed as conferring upon
the Holder hereof the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company.
12. Notices.
All notices, requests, consents and other communications required or
permitted hereunder shall be in writing and shall be personally delivered,
telegraphed or sent by certified, registered, or express mail, postage prepaid,
and shall be deemed given when so delivered personally, telegraphed or, if
mailed, five days after the date of deposit in the United States mails, as
follows:
(a) If to the Company, to:
Odyssey Pictures Corporation
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, CEO
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) If to the registered Holder, to the address of such Holder as shown on
the books of the Company.
13. Successors.
All covenants, agreements, representations and warranties contained in
this Warrant shall bind the parties hereto and their respective heirs,
executors, administrators, distributees, successors and assigns.
12
14. Headings.
The headings in this Warrant are inserted for purposes of convenience only
and shall have no substantive effect.
15. Law Governing.
This Warrant is delivered in the State of New York and shall be construed
and enforced in accordance with, and governed by, the laws of the State of New
York, without giving effect to conflicts of laws principles. Each of the Company
and the Holder hereby agrees that any dispute or controversy arising out of this
Warrant shall be adjudicated in a court located in New York City, and hereby
submits to the exclusive jurisdiction of the courts of the State of New York
located in New York, New York and of the federal courts in the Southern District
of New York, and irrevocably waives any objection each now or hereafter may have
respecting the venue of such action or proceeding brought in such a court or
respecting the fact that such court is an inconvenient forum, and consents to
the service of process in any such action or proceeding by means of registered
or certified mail, return receipt requested.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its corporate name by a duly authorized officer and has caused its corporate
seal to be affixed hereto on the date first above written.
ODYSSEY PICTURES CORPORATION
By:_____________________________________
Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
13
SUBSCRIPTION FORM
(To be Executed by the Registered Holder
in Order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to
purchase _______________ Shares represented by this Warrant in accordance with
the conditions hereof and herewith makes payment of the Purchase Price of such
Shares in full.
Date:__________________
______________________________________
(Signature)
______________________________________
(Print Name)
______________________________________
(Social Security Number or
Taxpayer's Identification
Number)
14
