EXHIBIT 4.4
AMENDED AND RESTATED STOCK PURCHASE WARRANT
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This Amended and Restated Stock Purchase Warrant (the "Warrant"), is issued
as of 19th day of June 1997, by MASTER GRAPHICS, INC., a Delaware corporation
(the "Company"), to SIRROM CAPITAL CORPORATION, a Tennessee corporation (SIRROM
CAPITAL CORPORATION and any subsequent assignee or transferee hereof are
hereinafter referred to collectively as "Holder" or "Holders").
WHEREAS, the parties desire to amend and restate that certain Stock
Purchase Warrant, dated June 19, 1997 by and between the Company and Holder.
AGREEMENT:
NOW THEREFORE, for good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
1. ISSUANCE OF WARRANT; TERM. For and in consideration of SIRROM CAPITAL
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CORPORATION making a loan to the Company in an amount of Four Million Three
Hundred Thousand and no/l00ths Dollars ($4,300,000) pursuant to the terms of a
secured promissory note of even date herewith (the "Note") and related loan
agreement of even date herewith (the "Loan Agreement"), and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company hereby grants to Holder the right to purchase shares
of the Company's common stock (the "Common Stock"), which shall be equal to 6%
of the shares of capital stock outstanding on the date of exercise, calculated
on a fully diluted basis and assuming exercise of this Warrant ("Base Amount"),
provided that in the event that any portion of the indebtedness evidenced by the
Note is outstanding on the following dates, the Base Amount shall be increased
to the corresponding number set forth below:
DATE BASE AMOUNT
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June 19, 1999 that number of shares which shall be equal to
8.67% of the shares of the Company's capital stock
outstanding on the date of exercise calculated on
a fully diluted basis after exercise of this
Warrant
June 19, 2000 that number of shares which shall be equal to
11.34% of the shares of the Company's capital
stock outstanding on the date of exercise
calculated on a fully diluted basis after exercise
of this Warrant
DATE BASE AMOUNT
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June 19, 2001 that number of shares which shall be equal to 13%
of the shares of the Company's capital stock
outstanding on the date of exercise calculated on
a fully diluted basis after exercise of this
Warrant
June 19, 2002 that number of shares which shall be equal to
15.67% of the shares of the Company's capital
stock outstanding on the date of exercise
calculated on a fully diluted basis after exercise
of this Warrant
The shares of Common Stock issuable upon exercise of this Warrant are
hereinafter referred to as the "Shares." This Warrant shall be exercisable at
any time and from time to time for the date hereof until July 30, 2002.
2. EXERCISE PRICE. The exercise (the "Exercise Price") per share for
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which all or any of the Shares may be purchased pursuant to the terms of this
Warrant shall be One Cent ($.01).
3. EXERCISE. This Warrant may be exercised by the Holder hereof (but
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only on the conditions hereinafter set forth) as to all or any increment or
increments of One Hundred (100) Shares (or the balance of the Shares if less
than such number), upon delivery of written notice of intent to exercise to the
Company at the following address: 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 or
such other address as the Company shall designate in a written notice to the
Holder hereof, together with this Warrant and payment to the Company of the
aggregate Exercise Price of the Shares so purchased. The Exercise Price shall
be payable, at the option of the Holder, (i) by certified or bank check, (ii) by
the surrender of the Note or portion thereof having an outstanding principal
balance equal to the aggregate Exercise Price or (iii) by the surrender of a
portion of this Warrant where the Shares subject to the portion of this Warrant
that is surrendered have a fair market value equal to the aggregate Exercise
Price. Upon exercise of this Warrant as aforesaid, the Company shall as
promptly as practicable, and in any event within fifteen (15) days thereafter,
execute and deliver to the Holder of this Warrant a certificate or certificates
for the total number of whole Shares for which this Warrant is being exercised
in such names and denominations as are requested by such Holder. If this
Warrant shall be exercised with respect to less than all of the Shares, the
Holder shall be entitled to receive a new Warrant covering the number of Shares
in respect of which this Warrant shall not have been exercised, which new
Warrant shall in all other respects be identical to this Warrant. The Company
covenants and agrees that it will pay when due any and all state and federal
issue taxes which may be payable in respect of the issuance of this Warrant or
the issuance of any Shares upon exercise of this Warrant.
4. COVENANTS AND CONDITIONS. The above provisions are subject to the
following:
(a) Neither this Warrant nor the Shares have been registered under the
Securities Act of 1933, as amended ("Securities Act") or any state securities
laws ("Blue Sky Laws"). This Warrant has been acquired for investment purposes
and not with a view to distribution or resale and may not be sold or otherwise
transferred without (i) an effective registration statement for such Warrant
under the Securities Act and such applicable Blue Sky Laws, or (ii) an opinion
of counsel, which opinion and counsel shall be reasonably satisfactory to the
Company and its counsel, that registration is not required under the Securities
Act or under any applicable Blue Sky Laws (the Company hereby acknowledges that
Xxxxxxxx & Xxxxxxxx, P.C. is acceptable counsel). Transfer of the shares issued
upon the exercise of this Warrant shall be restricted in the same manner and to
the same extent as the Warrant and the certificates representing such Shares
shall bear substantially the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE
TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER THE ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO, OR (II) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY, REGISTRATION UNDER SUCH SECURITIES ACTS AND SUCH APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED
TRANSFER.
The Holder hereof and the Company agree to execute such other documents and
instruments as counsel for the Company reasonably deems necessary to effect the
compliance of the issuance of this Warrant and any shares of Common Stock issued
upon exercise hereof with applicable federal and state securities laws.
(b) The Company covenants and agrees that all Shares which may be
issued upon exercise of this Warrant will upon issuance and payment therefor, be
legally and validly issued and outstanding, fully paid and nonassessable, free
from all taxes, liens, charges and preemptive rights, if any, with respect
thereto or to the issuance thereof The Company shall at all times reserve and
keep available for issuance upon the exercise of this Warrant such number of
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of this Warrant.
(c) The Company covenants and agrees that it shall not sell any shares
of the Company's capital stock at a price per share below the fair market value
of such shares, without the prior written consent of the Holder hereof. In the
absence of an established public market for the shares of stock sold by the
Company, fair market value shall be established by the Company's board of
directors in a commercially reasonable manner. The basis for determination shall
be provided in writing to the Holder hereof. In the event that the Company sells
shares of the Company's capital stock in violation of this Section 4(c), the
number of shares issuable upon exercise of this Warrant shall be equal to the
product obtained by multiplying the number of shares issuable pursuant to this
Warrant prior to such sale by the quotient obtained by dividing (i) the fair
market value of the shares issued in violation of this Section 4(c) by (ii) the
price at which such shares were sold.
5. TRANSFER OF WARRANT. Subject to the provisions of Section 4 hereof,
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this Warrant may be transferred, in whole or in part, to any person or business
entity, by presentation of the Warrant to the Company with written instructions
for such transfer. Upon such presentation for transfer, the Company shall
promptly execute and deliver a new Warrant or Warrants in the form hereof in the
name of the assignee or assignees and in the denominations specified in such
instructions. The Company shall pay all expenses incurred by it in connection
with the preparation, issuance and delivery of Warrants under this Section.
6. WARRANT HOLDER NOT SHAREHOLDER; RIGHTS OFFERING; PREEMPTIVE RIGHTS.
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Except as otherwise provided herein, this Warrant does not confer upon the
Holder, as such, any right whatsoever as a shareholder of the Company.
Notwithstanding the foregoing, if the Company should offer to all of the
Company's shareholders the right to purchase any securities of the Company, then
all shares of Common Stock that are subject to this Warrant shall be deemed to
be outstanding and owned by the Holder and the Holder shall be entitled to
participate in such rights offering. The Company shall not grant any preemptive
rights with respect to any of its capital stock without the prior written
consent of the Holder.
7. OBSERVATION RIGHTS. The Holder of this Warrant shall receive notice
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of and be entitled to attend or may send a representative to attend all meetings
of the Company's Board of Directors in a non-voting observation capacity and
shall receive a copy of all correspondence and information delivered to the
Company's Board of Directors, from the date hereof until such time as the
indebtedness evidenced by the Note has been paid in full.
8. ADJUSTMENT UPON CHANGES IN STOCK.
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(a) If all or any portion of this Warrant shall be exercised
subsequent to any stock split, stock dividend, recapitalization, combination of
shares of the Company, or other similar event, occurring after the date hereof,
then the Holder exercising this Warrant shall receive, for the aggregate price
paid upon such exercise, the aggregate number and class of shares which such
Holder would have received if this Warrant had been exercised immediately prior
to such stock split, stock dividend, recapitalization, combination of shares, or
other similar event. If any adjustment under this Section 8(a), would create a
fractional share of Common Stock or a right to acquire a fractional share of
Common Stock, such fractional share shall be disregarded and the number of
shares subject to this Warrant shall be the next higher number of shares,
rounding all fractions upward. Whenever there shall be an adjustment pursuant to
this Section 8(a), the Company shall forthwith notify the Holder or Holders of
this Warrant of such adjustment, setting forth in reasonable detail the event
requiring the adjustment and the method by which such adjustment was calculated.
(b) If all or any portion of this Warrant shall be exercised
subsequent to any merger, consolidation, exchange of shares, separation,
reorganization or liquidation of the Company, or other similar event, occurring
after the date hereof, as a result of which shares of Common Stock shall be
changed into the same or a different number of shares of the same or another
class or classes of securities of the Company or another entity, or the holders
of Common Stock are entitled to receive cash or other property, then the Holder
exercising this Warrant shall receive, for the aggregate price paid upon such
exercise, the aggregate number and class of shares, cash or other property which
such Holder would have received if this Warrant had been exercised immediately
prior to such merger, consolidation, exchange of shares, separation,
reorganization or liquidation, or other similar event. If any adjustment under
this Section 8(b) would create a fractional share of Common Stock or a right to
acquire a fractional share of Common Stock such fractional share shall be
disregarded and the number of shares subject to this Warrant shall be the next
higher number of shares, rounding all fractions upward. Whenever there shall be
an adjustment pursuant to this Section 8(b), the Company shall forthwith notify
the Holder or Holders of this Warrant of such adjustment, setting forth in
reasonable detail the event requiring the adjustment and the method by which
such adjustment was calculated.
9. PUT AGREEMENT.
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(a) The Company hereby irrevocably grants and issues to Holder the
right and option to sell to the Company (the "Put") this Warrant for a period of
30 days immediately prior to the expiration thereof, at a purchase price (the
"Purchase Price") equal to the Fair Market Value (as hereinafter defined) of the
shares of Common Stock issuable to Holder upon exercise of this Warrant which
shall be exercisable with the consent of the Senior Lenders (as defined in the
Loan Agreement).
(b) The Company shall pay to the Holder, in cash or certified or
cashier's check, the Purchase Price in exchange for the delivery to the Company
of this Warrant within thirty (30) days of the receipt of written notice,
addressed as set forth in Section 3 hereto, from the Holder of its intention to
exercise the Put.
(c) The Fair Market Value of the shares of Common Stock of the Company
issuable pursuant to this Warrant shall be determined as follows:
(i) The Company and the Holder shall each appoint an independent,
experienced appraiser who is a member of a recognized professional association
of business appraisers. The two appraisers shall determine the value of the
shares of Common Stock which would be issued upon the exercise of the Warrant,
assuming that the sale would be between a willing buyer and a willing seller,
both of whom have full knowledge of the financial and other affairs of the
Company, and neither of whom is under any compulsion to sell or to buy.
(ii) If the higher of the two appraisals is not more than 10% more
than the lower of the appraisals, the Fair Market Value shall be the average of
the two appraisals. If the higher of the two appraisals is 10% or more than the
lower of the two appraisals, then a third appraiser shall be appointed by the
two appraisers, and if they cannot agree on a third appraiser, the American
Arbitration Association shall appoint the third appraiser. The third appraiser,
regardless of who appoints him or her, shall have the same qualifications as the
first two appraisers.
(iii) The Fair Market Value after the appointment of the third
appraiser shall be the mean of the three appraisals.
(iv) The fees and expenses of the appraisers shall be paid one-
half by the Company and one-half by the Holder.
10. REGISTRATION.
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(a) The Company and the holders of the Shares agree that if at any
time after the date hereof the Company shall propose to file a registration
statement with respect to any of its Common Stock on a form suitable for a
primary offering, it will give notice in writing to such effect to the
registered holder(s) of the Shares at least thirty (30) days prior to such
filing, and, at the written request of any-such registered holder, made within
ten (10) days after the receipt of such notice, will include therein at the
Company's cost and expense (including the fees and expenses of counsel to such
holder(s), but excluding underwriting discounts, commissions and filing fees
attributable to the Shares included therein) such of the Shares as such
holder(s) shall request; provided, however, that if the offering being
registered by the Company is underwritten and if the representative of the
underwriters certifies in writing that the inclusion therein of the Shares would
materially and adversely affect the sale of the securities to be sold by the
Company thereunder, then the Company shall be required to include in the
offering only that number of securities, including the Shares, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned pro rata among all
selling shareholders according to the total amount of securities entitled to be
included therein owned by each selling shareholder, but in no event shall the
total amount of Shares included in the offering be less than the number of
securities included in the offering by any other single selling shareholder
unless all of the Shares are included in the offering).
(b) Whenever the Company undertakes to effect the registration of any
of the Shares, the Company shall, as expeditiously as reasonably possible:
(i) Prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement covering such Shares and use its
best efforts to cause such registration statement to be declared effective by
the Commission as expeditiously as possible and to keep such registration
effective until the earlier of (A) the date when all Shares covered by the
registration statement have been sold or (B) two hundred seventy (270) days from
the effective date of the registration statement; provided, that before filing a
registration statement or prospectus or any amendment or supplements thereto,
the Company will furnish to each Holder of Shares covered by such registration
statement and the underwriters, if any, copies of all such documents proposed to
be filed (excluding exhibits, unless any such person shall specifically request
exhibits), which documents will be subject to the review of such Holders and
underwriters, and the Company will not file such registration statement or any
amendment thereto or any prospectus or any supplement thereto (including any
documents incorporated by reference therein) with the Commission if (A) the
underwriters, if any, shall reasonably object to such filing or (B) if
information in such registration statement or prospectus concerning a particular
selling Holder has changed and such Holder or the underwriters, if any, shall
reasonably object.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement as may be necessary to
keep such registration statement effective during the period referred to in
Section 10(b)(i) and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement, and cause the prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed with the Commission
pursuant to Rule 424 under the Securities Act.
(iii) Furnish to the selling Holder(s) such numbers of copies
of such registration statement, each amendment thereto, the prospectus included
in such registration statement (including each preliminary prospectus), each
supplement thereto and such other documents as they may reasonably request in
order to facilitate the disposition of the Shares owned by them.
(iv) Use its best efforts to register and qualify under such other
securities laws of such jurisdictions as shall be reasonably requested by any
selling Holder and do any and all other acts and things which may be reasonably
necessary or advisable to enable such selling Holder to consummate the
disposition of the Shares owned by such Holder, in such jurisdictions; provided,
however, that the Company shall not be required in connection therewith or as a
condition thereto to qualify to transact business or to file a general consent
to service of process in any such states or jurisdictions.
(v) Promptly notify each selling Holder of the happening of any
event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading and, at the request of
any such Holder; the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such Shares,
such prospectus will not contain an untrue statement of a material fact or omit
to state any fact necessary to make the statements therein not misleading.
(vi) Provide a transfer agent and registrar for all such Shares
not later than the effective date of such registration statement.
(vii) Enter into such customary agreements (including underwriting
agreements in customary form for a primary offering) and take all such other
actions as the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Shares (including without limitation,
effecting a stock split or a combination of shares).
(viii) Make available for inspection by any selling Holder or
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
selling Holder or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the officers,
directors, employees and independent accountants of the Company to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement.
(ix) Promptly notify the selling Holder(s) and the underwriters,
if any, of the following events and (if requested by any such person) confirm
such notification in writing: (A) the filing of the prospectus or any prospectus
supplement and the registration statement and any amendment or post-effective
amendment thereto and, with respect to the registration statement or any post-
effective amendment thereto, the declaration of the effectiveness of such
documents, (B) any requests by the Commission for amendments or supplements to
the registration statement or the prospectus or for additional information, (C)
the issuance or threat of issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose and (D) the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threat of initiation of any
proceeding for such purposes.
(x) Make every reasonable effort to prevent the entry of any order
suspending the effectiveness of the registration statement and obtain at the
earliest possible moment the withdrawal of any such order, if entered.
(xi) Cooperate with the selling Holder(s) and the underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing the Shares to be sold and not bearing any restrictive legends, and
enable such Shares to be in such lots and registered in such names as the
underwriters may request at least two (2) business days prior to any delivery of
the Shares to the underwriters.
(xii) Provide a CUSIP number for all the Shares not later than the
effective date of the registration statement.
(xiii) Prior to the effectiveness of the registration statement
and any post-effective amendment thereto and at each closing of an underwritten
offering, (A) make such representations and warranties to the selling Holder(s)
and the underwriters, if any, with respect to the Shares and the registration
statement as are customarily made by issuers in primary underwritten offerings;
(B) use its best efforts to obtain "cold comfort" letters and updates thereof
from the Company's independent certified public accountants addressed to the
selling Holders and the underwriters, if any, such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters by underwriters in connection with primary underwritten offerings; (C)
deliver such documents and certificates as may be reasonably requested (1) by
the holders of a majority of the Shares being sold, and (2) by the underwriters,
if any, to evidence compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company; and (D) obtain opinions of counsel to the Company and
updates thereof (which counsel and which opinions shall be reasonably
satisfactory to the underwriters, if any), covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by the selling Holders and underwriters or their
counsel. Such counsel shall also state that no facts have come to the attention
of such counsel which cause them to believe that such registration statement,
the prospectus contained therein, or any amendment or supplement thereto, as of
their respective effective or issue dates, contains any untrue statement of any
material fact or omits to state any material fact necessary to make the
statements therein not misleading (except that no statement need be made with
respect to any financial statements, notes thereto or other financial data or
other expertized material contained therein). If for any reason the Company's
counsel is unable to give such opinion, the Company shall so notify the Holders
of the Shares and shall use its best efforts to remove expeditiously all
impediments to the rendering of such opinion.
(xiv) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders earnings statements satisfying the provisions of Section 1 1
(a) of the Securities Act, no later than forty-five (45) days after the end of
any twelve-month period (or ninety (90) days, if such period is a fiscal year)
(A) commencing at the end of any fiscal quarter in which the Shares are sold to
underwriters in a firm or best efforts underwritten offering, or (B) if not sold
to underwriters in such an offering, beginning with the first month of the first
fiscal quarter of the Company commencing after the effective date of the
registration statement, which statements shall cover such twelve-month periods.
(c) After the date hereof, the Company shall not grant to any holder
of securities of the Company any registration rights which have a priority
greater than or equal to those granted to Holders pursuant to this Warrant
without the prior written consent of the Holder(s).
(d) The Company's obligations under Section 10(a) above with respect
to each holder of Shares are expressly conditioned upon such holder's furnishing
to the Company in writing such information concerning such holder and the terms
of such holder's proposed offering as the Company shall reasonably request for
inclusion in the registration statement. If any registration statement including
any of the Shares is filed, then the Company shall indemnify each holder thereof
(and each underwriter for such holder and each person, if any, who controls such
underwriter within the meaning of the Securities Act) from any loss, claim,
damage or liability arising out of, based upon or in any way relating to any
untrue statement of a material fact contained in such registration statement or
any omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except for any such
statement or omission based on information furnished in writing by such holder
of the Shares expressly for use in connection with such registration statement;
and such holder shall indemnify the Company (and each of its officers and
directors who has signed such registration statement, each director, each
person, if any, who controls the Company within the meaning of the Securities
Act, each underwriter for the Company and each person, if any, who controls such
underwriter within the meaning of the Securities Act) and each other such holder
against any loss, claim, damage or liability arising from any such statement or
omission which was made in reliance upon information furnished in writing to the
Company by such holder of the Shares expressly for use in connection with such
registration statement.
(e) For purposes of this Section 10, all of the Shares shall be deemed
to be issued and outstanding.
11. CERTAIN NOTICES. In case at any time the Company shall propose to:
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(a) declare any cash dividend upon its Common Stock;
(b) declare any dividend upon its Common Stock payable in stock or
make any special dividend or other distribution to the holders of its Common
Stock;
(c) offer for subscription to the holders of any of its Common Stock
any additional shares of stock in any class or other rights;
(d) reorganize, or reclassify the capital stock of the Company, or
consolidate, merge or otherwise combine with, or sell of all or substantially
all of its assets to, another corporation;
(e) voluntarily or involuntarily dissolve, liquidate or wind up of the
affairs of the Company; or
(f) redeem or purchase any shares of its capital stock or securities
convertible into its capital stock;
then, in any one or more of said cases, the Company shall give to the Holder of
the Warrant, by certified or registered mail, (i) at least twenty (20) days'
prior written notice of the date on which the books of the Company shall close
or a record shall be taken for such dividend, distribution or subscription
rights or for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, and (ii) in the case of such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, at least
twenty (20) days' prior written notice of the date when the same shall take
place. Any notice required by clause (i) shall also specify, in the case of any
such dividend, distribution or subscription rights, the date of which the
holders of Common Stock shall be entitled thereto, and any notice required by
clause (ii) shall specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be.
12. RIGHTS OF CO-SALE.
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(a) Co-Sale Right. Xxxx Xxxxxx shall not enter into any transaction
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that would result in the sale by it of any Common Stock now or hereafter owned
by it, unless prior to such sale such Management Shareholder shall give notice
to Holder of its intention to effect such sale in order that Holder may exercise
its rights under this Section 12 as hereinafter described. Such notice shall
set forth (i) the number of shares to be sold by such Management Shareholder,
(ii) the principal terms of the sale, including the price at which the shares
are intended to be sold, and (iii) an offer by such Management Shareholder to
use his best efforts to cause to be included with the shares to be sold by it in
the sale, on a share-by-share basis and on the same terms and conditions, the
Shares issuable or issued to Holder pursuant this Warrant.
(b) Rejection of Co-Sale Offer. If Holder has not accepted such offer
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in writing within a period of ten (10) days from the date of receipt of the
notice, then such Management Shareholder shall thereafter be free for a period
of ninety (90) days to sell the number of shares specified in such notice, at a
price no greater than the price set forth in such notice and on otherwise no
more favorable terms to such Management Shareholder than as set forth in such
notice without any further obligation to Holder in connection with such sale.
In the event that such Management Shareholder fails to consummate such sale
within such ninety-day period, the shares specified in such notice shall
continue to be subject to this Section.
(c) Acceptance of Co-Sale Offer. If Holder accepts such offer in
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writing within ten (10) day period, such acceptance shall be irrevocable unless
such Management Shareholder shall be unable to cause to be included in his sale
the number of Shares of stock held by Holder and set forth in the written
acceptance. In that event, such Management Shareholder and Holder shall
participate in the sale equally, with such Management Shareholder and Holder
each selling half the total number of such shares to be sold in the sale.
13. ARTICLE AND SECTION HEADINGS. Numbered and titled article and section
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headings are for convenience only and shall not be construed as amplifying or
limiting any of the provisions of this Warrant.
14. NOTICE. Any and all notices, elections or demands permitted or
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required to be made under this Warrant shall be in writing, signed by the party
giving such notice, election or demand and shall be delivered personally,
telecopied, telexed, or sent by certified mail or overnight via nationally
recognized courier service (such as Federal Express), to the other party at the
address set forth below, or at such other address as may be supplied in writing
and of which receipt has been acknowledged in writing. The date of personal
delivery or telecopy or two (2) business days after the date of mailing (or the
next business day after delivery to such courier service), as the case may be,
shall be the date or such notice, election or demand. For the purposes of this
Warrant:
The Address of Holder is: Sirrom Capital Corporation
Suite 200
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopy No. 615/726-1208
with a copy to: Xxxxxxxx & Xxxxxxxx
Suite 200
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx-Xxxx Xxxxxxxx, Esq.
Telecopy No. 615/256-9958
The Address of Company is: Master Graphics, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
with a copy to: Black Bobango & Xxxxxx
000 Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
15. SEVERABILITY. If any provisions(s) of this Warrant or the application
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thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Warrant and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
16. ENTIRE AGREEMENT. This Warrant between the Company and Holder
----------------
represents the entire agreement between the parties concerning the subject
matter hereof; and all oral discussions and prior agreement are merged herein.
17. GOVERNING LAW AND AMENDMENTS. This Warrant shall be construed and
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enforced under the laws of the State of Tennessee applicable to contracts to be
wholly performed in such State. No amendment or modification hereof shall be
effective except in a writing executed by each of the parties hereto.
18. COUNTERPARTS. This Warrant may be executed in any number of
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counterparts and be different parties to this Warrant in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same Warrant.
19. JURISDICTION AND VENUE. The Company hereby consents to the
----------------------
jurisdiction of the courts of the State of Tennessee and the United States
District Court for the Middle District of Tennessee, as well as to the
jurisdiction of all courts from which an appeal may be taken from such courts,
for the purpose of any suit, action or other proceeding arising out of any of
its obligations arising under this Agreement or with respect to the transactions
contemplated hereby, and expressly waives any and all objections it may have as
to venue in any of such courts.
20. EQUITY PARTICIPATION. This Warrant is issued in connection with the
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Loan Agreement. It is intended that this Warrant constitute an equity
participation under and pursuant to T.C.A. 47-24 101, et seq. and that equity
------
participation be permitted under said statutes and not constitute interest on
the Note. If under any circumstances whatsoever, fulfillment of any obligation
of this Warrant, the Loan Agreement, or any other agreement or document executed
in connection with the Loan Agreement, shall violate the lawful limit of any
applicable usury statue or any other applicable law with regard to obligations
of like character and amount, then the obligation to be fulfilled shall be
reduced to such lawful limit, such that in no event shall there occur, under
this Warrant, the Loan Agreement, or any other document or instrument executed
in connection with the Loan Agreement, any violation of such lawful limit, but
such obligation shall be fulfilled to the lawful limit. If any sum is collected
in excess of the lawful limit, such excess shall be applied to reduce the
principal amount of the Note.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first above
written.
COMPANY: MASTER GRAPHICS, INC.,
------- a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Title: President
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HOLDER: SIRROM CAPITAL CORPORATION, a Tennessee
------ corporation
By: /s/ R. Xxxxxx Xxxxxx
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Title: Vice President
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IN WITNESS WHEREOF, the parties hereto have executed or caused this Warrant
to be executed as of the date first above written for the purpose of agreeing to
the terms and conditions of Section 12 hereof.
XXXX XXXXXX: /s/ Xxxx X. Xxxxxx
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