VOID AFTER 5:00 P.M., NEW YORK, NEW YORK LOCAL TIME ON DECEMBER 31, 2001.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF
(COLLECTIVELY THE "SECURITIES") HAVE EVEN ACQUIRED FOR INVESTMENT ONLY AND HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR
ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO UNAPIX
ENTERTAINMENT, INC. THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
UNAPIX ENTERTAINMENT, INC.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
TO PURCHASE ______
SHARES OF COMMON STOCK
Certificate No. PW- 01
This Warrant Certificate certifies that _________, having an office at
_______________, or registered assigns, is the registered Holder (the "Holder")
of ________ (_____) Common Stock Purchase Warrants (the "Warrants") to purchase
shares of the common stock, $.01 par value (the "Common Stock"), of Unapix
Entertainment, Inc., a Delaware corporation (the "Company").
The Warrants represented by this Warrant Certificate were issued as
partial compensation for the Holder's acting as a non-exclusive Placement Agent
or as a finder's fee in connection with a private placement made by the Company
pursuant to a certain Confidential Private Placement Memorandum dated April 30,
1996, as supplemented to date (the "Memorandum").
1. EXERCISE OF WARRANT.
(A) Each Warrant enables the Holder, subject to the provisions of
this Warrant Certificate and to the listing of the shares issuable upon exercise
hereof on the American Stock Exchange (the "AMEX"), to purchase from the Company
at any time and from time to time commencing on the date of issuance (the
"Initial Exercise Date") through the including 5:00 p.m., New York, New York
local time on December 31, 2001 (the "Expiration Date") one (1) fully paid and
non-assessable share of Common Stock ("Shares") upon due presentation and
surrender of this Warrant Certificate accompanied by payment of the purchase
price of $4.50 per Share (the "Exercise Price"). Payment shall be made in lawful
money of the
United States of America by certified check payable to the Company at its
principal office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or upon
surrender of this Warrant as hereinafter described. As hereinafter provided, the
Exercise Price and number of Shares purchasable upon the exercise of the
Warrants are subject to modification or adjustment upon the happening of certain
events.
(B) Subject to the shares issuable upon exercise of the Warrant
being listed on the AMEX, this Warrant Certificate is exercisable at any time on
or after the Initial Exercise Date in whole or in part by the Holder in person
or by attorney duly authorized in writing at the principal office of the
Company.
2. EXCHANGE, FRACTIONAL SHARES, TRANSFER.
(A) Upon surrender to the Company, this Warrant Certificate may be
exchanged for another Warrant Certificate or Warrant Certificates evidencing a
like aggregate number of Warrants. If this Warrant Certificate shall be
exercised in part, the Holder shall be entitled to receive upon surrender hereof
another Warrant Certificate or Warrant Certificates evidencing the number of
Warrants not exercised;
(B) Anything herein to the contrary notwithstanding, in no event
shall the Company be obligated to issue Warrant Certificates evidencing other
than a whole number of Warrants or issue certificates evidencing other than a
whole number of Shares upon the exercise of this Warrant Certificate; provided,
however, that the Company shall pay with respect to any such fraction of a Share
an amount of cash based upon the current public market value (or book value, if
there shall be no public market value) for Shares purchasable upon exercise
hereof;
(C) The Company may deem and treat the person in whose name this
Warrant Certificate is registered as the absolute true and lawful owner hereof
for all purposes whatsoever; and
(D) This Warrant Certificate may not be transferred except in
compliance with the provisions of the Act and applicable state securities laws
and in accordance with the provisions of Section 11 hereof.
3. RIGHTS OF A HOLDER. No Holder shall be deemed to be the Holder of
Common Stock or any other securities of the Company that may at any time be
issuable on the exercise hereof for any purpose nor shall anything contained
herein be construed to confer upon the Holder any of the rights of a shareholder
of the Company or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof or to give or withhold
consent to any corporate action (whether upon any reorganization, issuance of
stock, reclassification or conversion of stock, change of par value,
consolidation, merger, conveyance, or otherwise) or to receive notice of
meetings or to receive dividends or subscription rights or otherwise until a
Warrant shall have been exercised and the Common Stock purchasable upon the
exercise thereof shall have become issuable.
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4. REGISTRATION OF TRANSFER. The Company shall maintain books for the
transfer and registration of Warrants. Upon the transfer of any Warrants in
accordance with the provisions of Section 2(D) hereof (a "Permitted Transfer"),
the Company shall issue and register the Warrants in the names of the new
Holder. The Warrants shall be signed manually by the Chairman, Chief Executive
Officer, President or any Vice President and the Secretary or Assistant
Secretary of the Company. The Company shall transfer, from time to time, any
outstanding Warrants upon the books to be maintained by the Company for such
purpose upon surrender thereof for transfer properly endorsed or accompanied by
appropriate instructions for transfer. Upon any Permitted Transfer, a new
Warrant Certificate shall be issued to the transferee and the surrendered
Warrants shall be cancelled by the Company. Warrants may be exchanged at the
option of the Holder, when surrendered at the office of the Company, 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 Shares.
Subject to the terms of this Warrant Certificate, upon such surrender and
payment of the purchase price at any time after the Initial Exercise Date, the
Company shall issue and deliver with all reasonable dispatch to or upon the
written order of the Holder of such Warrants and in such name or names as such
Holder may designate, a certificate or certificates for the number of full
Shares so purchased upon the exercise of such Warrants. 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 the Holder of record of such
Shares as of the date of the surrender of such Warrants and payment of the
purchase price; provided, however, that if, at the date of surrender and
payment, the transfer books of the Company shall be closed, the certificates for
the Shares 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 such transfer
books, unless otherwise required by law or by applicable rule of any national
securities exchange or interdealer quotation system, 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 Holders, either as an
entirely or from time to time for only part of the Shares at any time on or
after the Initial Exercise Date.
5. STAMP TAX. The Company will pay any documentary stamp taxes
attributable to the initial issuance of the Shares issuable upon the exercise of
the 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
issuance or delivery of any certificates for Shares in a name other than that of
the Holder in respect of which such Shares are issued, and in such case the
Company shall not be required to issue or deliver any certificate for 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.
6. LOST, STOLEN OR MUTILATED CERTIFICATES. In case this Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Company may, in
its discretion, issue and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the lost, stolen or destroyed Warrant Certificate, a new
Warrant Certificate of like tenor representing an equivalent right or interest,
but only upon
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receipt of evidence satisfactory to the Company of such loss, theft or
destruction and an indemnity, if requested, also satisfactory to it.
7. RESERVED SHARES. The Company warrants that there have been reserved,
and covenants that at all times in the future it shall keep reserved, out of the
authorized and unissued Common Stock, a number of Shares sufficient to provide
for the exercise of the rights of purchase represented by this Warrant
Certificate. The Company agrees that all Shares issuable upon exercise of the
Warrants shall be, at the time of delivery of the certificates for such Shares,
validly issued and outstanding, fully paid and non-assessable and that the
issuance of such Shares will not give rise to preemptive rights in favor of
existing stockholders.
8. ANTI-DILUTION PROVISIONS.
(A) Stock Dividend - Split-Ups. If after the date hereof, the number
of outstanding shares of Common Stock is increased by a stock dividend payable
in shares of Common Stock or by a split-up of shares of Common Stock or other
similar event, then, on the day following the date fixed for the determination
of holders of Common Stock entitled to received such stock dividend or split-up,
the number of shares issuable on exercise of each Warrant shall be increased in
proportion to such increase in outstanding shares and the then applicable
Exercise Price shall be correspondingly decreased.
(B) Aggregation of Shares. If after the date hereof, the number of
outstanding shares of Common Stock is decreased by a consolidation, combination
or reclassification of shares of Common Stock or other similar event, then,
after the effective date of such consolidation, combination or reclassification,
the number of shares issuable on exercise of each Warrant shall be decreased in
proportion to such decrease in outstanding shares and the then applicable
Exercise Price shall be correspondingly increased.
(C) Reorganization, etc. If after the date hereof any capital
reorganization or reclassification of the Common 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 or other similar
event shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger, or sale, lawful and fair provision
shall be made whereby the Warrant holders shall thereafter have the right to
purchase and receive, upon the basis and upon the terms and conditions specified
in the Warrants and in lieu of the shares of Common Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented thereby, such shares of stock, securities, or assets as may
be issued or payable with the respect to or in exchange for the number of
outstanding shares of such Common Stock equal to the number of shares of such
stock immediately theretofore purchasable and receivable upon the exercise of
the rights represented by the Warrants, had such reorganization,
reclassification, consolidation, merger, or sale not taken place and in such
event appropriate provision shall be made with respect to the rights and
interests, of the Warrant holders to the end that the provisions hereof
(including, without limitation, provisions for adjustment of the Exercise Price
and of the number of shares purchasable upon the exercise of the Warrants) shall
thereafter
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be applicable, as nearly as may be in relation to any share of stock,
securities, or assets thereafter deliverable upon the exercise hereof.
(D) Notice of Certain Transactions. If, at any time while this
Warrant is outstanding, the Company shall pay any dividend payable in cash or in
Common Stock, shall offer to the holders of its Common Stock for subscription or
purchase by them any shares of stock of any class or any other rights, or shall
enter into an agreement to merge or consolidate with another corporation, the
Company shall cause notice thereof to be mailed to the registered holder of this
Warrant at its address appearing on the registration books of the Company, at
least 30 days prior to the record date as of which holders of Common Stock shall
participate in such dividend, distribution or subscription or other rights or at
least 30 days prior to the effective date of the merger or consolidation.
Failure to give notice as required by this Section, or any defect therein, shall
not affect the legality or validity of any dividend, distribution or
subscription or other right.
9. CONSOLIDATION OR MERGER. The Company covenants and agrees that it
will not merge or consolidate with or into or sell or otherwise transfer all or
substantially all of its assets to any other corporation or entity unless at the
time of or prior to such transaction the successor corporation (if other than
the Company) resulting from such consolidation or merger, or the corporation
purchasing such assets, shall expressly assume all of the liabilities and
obligations of the Company under this Warrant and (without limiting the
generality of the foregoing) shall expressly agree that the Holder of this
Warrant shall thereafter have the right to receive upon the exercise of this
Warrant the number and kind of shares of stock and other securities and property
receivable upon such transaction by a Holder of the number and kind of shares
which would have been receivable upon the exercise of this Warrant immediately
prior to such transaction.
10. REGISTRATION RIGHTS UNDER THE SECURITIES ACT OF 1933.
(A) The Company shall advise the Holder of this Warrant or of
the Warrant Shares or any then Holder of Warrants of Warrant Shares (such
persons being collectively referred to herein as "Holders") by written notice at
least three weeks prior to the anticipated filing of any registration statement
under the Act (other than a registration statement on Forms S-4 or Form S-8
promulgated under the Act or any successor or similar form) filed by the Company
covering the public offering of securities of the Company for its own account
(the "Registration Statement"), or subject to the Company's not being prohibited
from doing so pursuant to an agreement with another party, for the account of
another party, and will for a period of two (2) years commencing the date
hereof, upon the request of any such Holder given not later than 10 days after
receipt of such notice from the Company (which notice from the Company will
offer such Holder the option to include Shares in such Registration Statement),
include in any such Registration Statement such information as may be required
to permit a public offering of the Shares. Such inclusion shall be on the same
terms and conditions as any similar securities of the Company so included,
including, without limitation, the same registration form. Notwithstanding the
foregoing, if the Managing Underwriter of any such offering shall
5
advise the Company in writing that, in its opinion, the distribution of all or a
portion of the shares requested to be included in the registration concurrently
with the securities being registered by the Company would materially adversely
affect the distribution of such securities then the Holders who shall have
requested registration of Warrant Shares shall withdraw the offer and sale of
such Warrant Shares (or the portions thereof so designated by such Managing
Underwriter) for such period as the Managing Underwriter shall in its sole
discretion determine. The Company shall supply prospectuses and other documents
as the Holder may reasonably request in order to facilitate the public sale or
other disposition of the Shares, use its best efforts to qualify the Shares for
sale in such states as any such Holder reasonably designates and do any and all
other acts and things which may be necessary or desirable to enable such Holders
to consummate the public sale or other disposition of the Shares, and furnish
indemnification in the manner as set forth in Subsection (B)(2)(a) and (b) of
this Section 10. Such Holders shall furnish information and indemnification as
set forth in Subsection (B)(2)(c) of this Section 10. Notwithstanding anything
to the contrary contained herein, each holder of Warrants or Warrant Shares
shall be entitled to exercise his or its rights pursuant to the terms of this
Section 10(A) with respect to not more than one registration which becomes
effective under the Act.
(B) The following provisions of this Section 10 shall also be
applicable:
(1) The Company shall bear the entire cost and expense
of any registration of securities under Subsection (A) of this
Section 10 notwithstanding that Shares subject to this Warrant
may be included in any such registration, except that the
Holders shall bear the fees of their own counsel and any
underwriting discounts or commissions applicable to any of the
securities sold by them.
(2) (a) The Company shall indemnify and hold harmless
each such Holder whose Shares are included in any such
registration statement, the directors and officers of any such
Holder, and each person that controls such Holder (within the
meaning of Section 15 under the Act), and each underwriter,
within the meaning of the Act, who may purchase from or sell
for any such Holder any Shares, from and against any and all
losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact
contained in such registration statement or any post-effective
amendment thereto under the Act or any prospectus included
therein or filed or furnished in connection therewith, or
caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any
such untrue statement or alleged untrue statement or omission
or alleged omission based upon information furnished or
required to be furnished in writing to the Company by such
Holder or underwriter expressly for use therein, which
indemnification
6
shall include each person, if any, who controls any such
underwriter within the meaning of such Act; provided, however,
that the Company shall not be so obliged to indemnify any such
underwriter or controlling person unless such underwriter
shall at the same time indemnify the Company, its directors,
each officer signing the related registration statement and
each person, if any, who controls the Company within the
meaning of such Act, from and against any and all losses,
claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in
any such registration statement or any prospectus included
therein or filed or furnished in connection therewith or
caused by any omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, insofar as such losses,
claims, damages or liabilities are caused by any untrue
statement or alleged untrue statement or omission based upon
information furnished in writing to the Company by any such
underwriter expressly for use therein.
(b) If any action or proceeding (including any
governmental investigation) shall be brought, threatened or
asserted against any indemnified person in respect of which
indemnity may be sought from the Company, such indemnified
person shall promptly notify the Company in writing, and the
Company shall assume the defense thereof, including the
retention of counsel and the payment of all related expenses.
Any such indemnified person shall have the right to employ
separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified person unless: (i)
the Company has agreed to pay such fees and expenses; or (ii)
the Company shall have failed to assume the defense of such
action or proceeding. The Company shall not be liable for any
settlement of any such action or proceeding or confession of
judgement effected by the indemnified person without the
Company's consent.
(c) The Holders registering Shares shall agree to
indemnify and hold harmless the Company, its directors and
officers, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act, to the same
extent as the indemnity from the Company to each such person
provided in Subsection (B)(2)(a) of this Section 10 but only
with respect to information relating to such indemnified
person furnished in writing by such indemnified person to the
Company expressly for use in the registration statement or
related prospectus (preliminary or final), or any amendment or
supplement thereto. In case any action or proceeding shall be
brought against the Company or its directors or officers or
any such controlling person, in respect to which indemnity may
be sought against a Holder under the preceding sentence, each
such Holder shall
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have the rights and duties given the Company under Section
(B)(2)(b) of this Section 10.
(C) Notwithstanding anything to the contrary contained in this
Section 10, the Holder shall not be entitled to registration rights or to
receive notice, in each case pursuant to Section 10 if the Holder receives an
opinion in form and substance reasonably satisfactory to him from counsel to the
Company reasonably acceptable to him that the proposed offer and sale of the
Shares by him is exempt from the registration requirements of the Act, by reason
of the availability of the exemption provided by Rule 144.
(D) The Holders requesting registration shall furnish to the
Company in writing such information and documents as, in the opinion of counsel
to the Company, may be reasonably required properly to prepare and file such
registration statement in accordance with the applicable provision of the Act.
11. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933.
(A) The Holder of this Warrant Certificate, each transferee
hereof and any Holder and transferee of any Shares, by his acceptance thereof,
agrees that (a) no public distribution of Warrants or Shares will be made in
violation of the Act, and (b) during such period as the delivery of a prospectus
with respect to Warrants or Shares may be required by the Act, no public
distribution of Warrants or Shares will be made in a manner or on terms
different from those set forth in, or without delivery of, a prospectus then
meeting the requirements of Section 10 of the Act and in compliance with
applicable state securities laws. The Holder of this Warrant Certificate and
each transferee hereof further agrees that if any distribution of any of the
Warrants or Shares is proposed to be made by them otherwise than by delivery of
a prospectus meeting the requirements of Section 10 of the Act, such action
shall be taken only after submission to the Company of an opinion of counsel,
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed distribution will not be in violation of the Act or of
applicable state law. Furthermore, it shall be a condition to the transfer of
the Warrants that any transferee thereof deliver to the Company his written
agreement to accept and be bound by all of the terms and conditions contained in
this Warrant Certificate.
(B) This Warrant or the Shares or any other security issued
or issuable upon exercise of this Warrant may not be sold or otherwise disposed
of except as follows:
(1) To a person who, in the opinion of counsel for the
Holder reasonably acceptable to the Company, is a person to whom this Warrant or
Shares may legally be transferred without registration and without the delivery
of a current prospectus under the Act with respect thereto and then only against
receipt of an agreement of such person to comply with the provisions of this
subsection (B)(l) with respect to any resale or other disposition of such
securities which agreement shall be satisfactory in form and substance to the
Company and its counsel; provided that the foregoing shall not apply to any such
Warrant, Shares or other security
8
as to which Xxxxxx shall have received an opinion letter from counsel to the
Company as to the exemption thereof from the registration under the Act pursuant
to Rule 144 under the Act; or
(2) To any person upon delivery of a prospectus then
meeting the requirements of the Act relating to such securities and the offering
thereof for such sale or disposition.
(C) Each certificate for Shares issued upon exercise of this
Warrant shall bear a legend relating to the non-registered status of such Shares
under the Act, unless at the time of exercise of this Warrant such Shares are
subject to a currently effective registration statement under the Act.
12. MISCELLANEOUS.
(A) LAW TO GOVERN. This Warrant shall be governed by and
construed in accordance with the substantive laws of the State of New York,
without giving effect to conflict of laws principles.
(B) ENTIRE AGREEMENT. This Warrant Certificate constitutes and
expresses the entire understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements and understandings, inducements or conditions whether express or
implied, oral or written. Neither this Warrant Certificate nor any portion or
provision hereof may be changed, waived or amended orally or in any manner other
than by an agreement in writing signed by the Holder and the Company.
9
(C) NOTICES. Except as otherwise provided in this Warrant
Certificate, all notices, requests, demands and other communications required or
permitted under this Warrant Certificate or by law shall be in writing and shall
be deemed to have been duly given, made and received only when delivered against
receipt or when deposited in the United States mails, certified or registered
mall, return receipt requested, postage prepaid, addressed as follows:
Company: Unapix Entertainment, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: President
Holder: At the address shown for the
Holder in the registration
book maintained by the
Company.
Copy to: Xxxxxxx X. Xxxx, Esq.
c/o The Mezzanine Financial Fund
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(D) SEVERABILITY. If any provision of this Warrant Certificate
is prohibited by or is unlawful or unenforceable under any applicable law of any
jurisdiction, such provision shall, as to such jurisdiction be in effect to the
extent of such prohibition without invalidating the remaining provisions hereof;
provided, however, that nay such prohibition in any jurisdiction shall not
invalidate such provision in any other jurisdiction; and provided, further that
where the provisions of any such applicable law may be waived, that they hereby
are waived by the Company and the Holder to the full extent permitted by law and
to the end that this Warrant instrument shall be deemed to be a valid and
binding agreement in accordance with its terms.
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IN WITNESS WHEREOF, Unapix Entertainment, Inc., has caused this Warrant
Certificate to be signed by its duly authorized officers as of the ____ day of
_____ 1996.
UNAPIX ENTERTAINMENT, INC.
By:_______________________________
Xxxxxxx X. Xxxxxxxx,
Chairman
Attest:
_______________________________
Xxxxx X. Xxxx, Secretary
[CORPORATE SEAL]
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