EXHIBIT 10.40
THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND, IF EXERCISED, THE UNDERLYING
SHARES OF COMMON STOCK, HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
THEIR DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
XXXXXX XXXXXXX PROMOTIONS, INC.
WARRANT TO PURCHASE COMMON STOCK
No. September 5, 2003
Void After Septembr 5, 2008
THIS CERTIFIES THAT, for value received, Xxxxx & Xxxxxxxxx, LLP, having an
address at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, or his
assigns (the "Holder"), is entitled to subscribe for and purchase at the
Exercise Price (defined below) from XXXXXX XXXXXXX PROMOTIONS, INC., a Delaware
corporation, with its principal office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx
0000, Xxx Xxxx, XX 00000 (the "Corporation") up to Three Hundred Thousand
(300,000) shares of common stock, par value $.01 per share, of the Corporation
(the "Common Stock").
1. Definitions. AS USED HEREIN, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
RESPECTIVE MEANINGS:
(a) "Exercise Period" shall mean the period commencing with the date hereof
and ending five years from the date hereof, unless sooner terminated as provided
below.
(b) "Exercise Price" shall mean $.40 per share, subject to adjustment
pursuant to Section 5 below.
(c) "Exercise Shares" shall mean the shares of Common Stock issuable upon
exercise of this Warrant.
2. Exercise of Warrant. THE RIGHTS REPRESENTED BY THIS WARRANT MAY BE EXERCISED
IN WHOLE OR IN PART AT ANY TIME DURING THE EXERCISE PERIOD, BY DELIVERY OF THE
FOLLOWING TO THE CORPORATION AT ITS ADDRESS SET FORTH ABOVE (OR AT SUCH OTHER
ADDRESS AS IT MAY DESIGNATE BY NOTICE IN WRITING TO THE HOLDER):
(a) An executed Notice of Exercise in the form attached hereto;
(b) Payment of the Exercise Price either in cash or by check; and
(c) Net Issuance. The Holder may elect to exercise this Warrant in whole or
in part by receiving shares of Common Stock equal to the net issuance value (as
determined below) of this Warrant, or any part hereof, upon surrender of this
Warrant at the principal office of the Company together with notice of such
election (with the form at the end hereof duly executed), in which event the
company shall issued to the Holder a number of shares of Common Stock computed
using the following formula:
X=Y (A-B)
A
Where: X= the number of shares of Common Stock to be issued to
the Holder
Y= the number of shares of Common Stock as to which this Warrant
is to be exercised
A= the current fair market value of one share of Common Stock
calculated as of the last trading day immediately preceding the
exercise of this Warrant
B= the Exercise Price
(d) This Warrant.
Upon the exercise of the rights represented by this Warrant, a certificate
or certificates for the Exercise Shares so purchased, registered in the name of
the Holder or persons affiliated with the Holder, if the Holder so designates,
shall be issued and delivered to the Holder within a reasonable time after the
rights represented by this Warrant shall have been so exercised.
The person in whose name any certificate or certificates for Exercise
Shares are to be issued upon exercise of this Warrant shall be deemed to have
become the holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the
Corporation are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
Notwithstanding anything herein to the contrary, the Holder acknowledges
and agrees that there are not sufficient shares of common stock of the
Corporation authorized or reserved to issue such shares of common stock of the
Corporation if this Warrant was exercised on the date hereof. If such number of
shares of common stock of the Corporation are for any reason whatsoever still
not available to be issued by the Corporation at the time of such exercise of
this Warrant, the Corporation shall so issue such shares of common stock as soon
as practicable.
3. Covenants of the Corporation.
3.1 Covenants as to Exercise Shares. The Corporation covenants and agrees
that all Exercise Shares that may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued and
outstanding, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issuance thereof. Subject to the immediately
preceding paragraph, the Corporation further covenants
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and agrees that the Corporation will at all times during the Exercise Period,
have authorized and reserved, free from preemptive rights, a sufficient number
of shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant. If at any time during the Exercise Period the
number of authorized but unissued shares of Common Stock shall not be sufficient
to permit exercise of this Warrant, the Corporation will take such corporate
action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purposes.
3.2 No Impairment. Except and to the extent as waived or consented to by
the Holder, the Corporation will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Corporation, but will at all times in
good faith assist in the carrying out of all the provisions of this Warrant and
in the taking of all such action as may be necessary or appropriate in order to
protect the exercise rights of the Holder against impairment.
3.3 Notices of Record Date. In the event of any taking by the Corporation
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than a cash dividend which is the same as cash dividends paid in previous
quarters) or other distribution, the Corporation shall mail to the Holder, at
least ten (10) days prior to the date specified herein, a notice specifying the
date on which any such record is to be taken for the purpose of such dividend or
distribution.
4. Representations of Holder.
4.1 Acquisition of Warrant for Personal Account. The Holder represents and
warrants that it is acquiring the Warrant solely for its account for investment
and not with a view to or for sale or distribution of said Warrant or any part
thereof. The Holder also represents that the entire legal and beneficial
interests of the Warrant and Exercise Shares the Holder is acquiring is being
acquired for, and will be held for, its account only.
4.2 Securities Are Not Registered.
(a) The Holder understands that the Warrant and the Exercise Shares have
not been registered under the Securities Act of 1933, as amended (the "Act") on
the basis that no distribution or public offering of the stock of the
Corporation is to be effected. The Holder realizes that the basis for the
exemption may not be present if, notwithstanding its representations, the Holder
has a present intention of acquiring the securities for a fixed or determinable
period in the future, selling (in connection with a distribution or otherwise),
granting any participation in, or otherwise distributing the securities. The
Holder has no such present intention.
(b) The Holder recognizes that the Warrant and the Exercise Shares must be
held indefinitely unless they are subsequently registered under the Act or an
exemption from such registration is available. The Holder recognizes that the
Corporation has no obligation to register the Warrant or the Exercise Shares of
the Corporation (except as provided in Section 11 hereof), or to comply with any
exemption from such registration.
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(c) The Holder is aware that neither the Warrant nor the Exercise Shares
may be sold pursuant to Rule 144 adopted under the Act unless certain conditions
are met, including, among other things, the existence of a public market for the
shares, the availability of certain current public information about the
Corporation, the resale following the required holding period under Rule 144 and
the number of shares being sold during any three month period not exceeding
specified limitations. Holder is aware that the conditions for resale set forth
in Rule 144 have not been satisfied and that the Corporation presently has no
plans to satisfy these conditions in the foreseeable future.
4.3 Disposition of Warrant and Exercise Shares. The Holder understands and
agrees that all certificates evidencing the shares to be issued to the Holder
may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED.
5. Adjustment of Exercise Price. In the event of changes in the outstanding
Common Stock of the Corporation by reason of stock dividends, split-ups,
recapitalizations, reclassifications, combinations or exchanges of shares,
separations, reorganizations, liquidations, or the like prior to the exercise of
this Warrant (or portion thereof), the number and class of shares available
under the Warrant (or portion thereof) in the aggregate and the Exercise Price
shall be correspondingly adjusted to give the Holder of the Warrant (or portion
thereof), on exercise for the same aggregate Exercise Price, the total number,
class, and kind of shares as the Holder would have owned had the Warrant (or
portion thereof) been exercised prior to the event and had the Holder continued
to hold such shares until after the event requiring adjustment. The form of this
Warrant need not be changed because of any adjustment in the number of Exercise
Shares subject to this Warrant.
6. Fractional Shares. No fractional shares shall be issued upon the exercise of
this Warrant as a consequence of any adjustment pursuant hereto. All Exercise
Shares (including fractions) issuable upon exercise of this Warrant may be
aggregated for purposes of determining whether the exercise would result in the
issuance of any fractional share. If, after aggregation, the exercise would
result in the issuance of a fractional share, the Corporation shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such
fraction a sum in cash equal to the product resulting from multiplying the then
current fair market value of an Exercise Share by such fraction.
7. No Stockholder Rights. This Warrant in and of itself shall not entitle the
Holder to any voting rights or other rights as a stockholder of the Corporation.
8. Transfer of Warrant. Subject to applicable laws, the restriction on transfer
set forth on the first page of this Warrant, this Warrant and all rights
hereunder are transferable, by the Holder in person or by duly authorized
attorney, upon delivery of this Warrant and the form of assignment attached
hereto to any transferee designated by Holder. The transferee shall sign an
investment letter in form and substance satisfactory to the Corporation.
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9. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant is lost,
stolen, mutilated or destroyed, the Corporation may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation of the
Corporation, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
10. Notices, etc. All notices and other communications required or permitted
hereunder shall be in writing and shall be sent by telex, telegram, express mail
or other form of rapid communications, if possible, and if not then such notice
or communication shall be mailed by first-class mail, postage prepaid, addressed
in each case to the party entitled thereto at the following addresses: (a) if to
the Corporation, to Xxxxxx Xxxxxxx Promotions, Inc., Attention: Secretary, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000 and (b) if to the Holder,
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, or at such other
address as one party may furnish to the other in writing. Notice shall be deemed
effective on the date dispatched if by personal delivery, telecopy, telex or
telegram, two days after mailing if by express mail, or three days after mailing
if by first-class mail.
11. Registration Rights. If at any time, the Corporation proposes to register
any of its securities under the Securities Act of 1933, as amended (other than
in connection with a demand registration or an exchange offer or a registration
statement on Form S-8 or S-4 or any similar form then in effect or any other
unsuitable registration statement), the Corporation will give written notice by
registered mail, at least thirty (30) days prior to the filing of each such
Registration Statement, to the holders of this Warrant and the securities
issuable upon exercise of this Warrant ("Registrable Shares") of the
Corporation's intention to do so. Upon the written request of the Holder given
within twenty (20) days after the mailing of such notice (which request shall
state the number of Registrable Shares intended to be sold or disposed of by the
Holder in such proposed registration statement ("Registration Statement"), and
shall describe the proposed method of disposition of such Registrable Shares),
the Corporation shall afford the Holder the opportunity to have such Registrable
Shares registered under such Registration Statement at the Corporation's sole
cost and expense and at no cost or expense to such Holder (unless, in the
opinion of counsel to the Corporation registration under the Securities Act is
not required for the transfer of such Registrable Shares in the manner proposed
by such Holder). Notwithstanding the preceding sentence, in the case of an
underwritten public offering, (a) the Registrable Shares included within such
Registration Statement shall be distributed and/or sold by the underwriters of
such offering utilized by the Corporation pursuant to the same terms and
conditions applicable to securities offered by the Corporation, and (b) in the
event the underwriters in respect of such offering determine that a reduction is
necessary in the number of shares to be included therein, any such reduction in
the aggregate number of shares included therein shall be achieved, first, by a
reduction in the number of shares proposed for inclusion in such Registration
Statement and underwriting by shareholders with registration subordinate to
those of the Holder. If an additional reduction in included shares is still
required, the number of shares that may be included in the offering by each of
the Corporation, the Holder and all other shareholders with registration rights
of equal priority to those of the Holder shall be reduced, on a pro rata basis
(based on the number of shares originally proposed by such persons for inclusion
in such offering), by the minimum number of shares necessary to comply with such
limitation.
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Notwithstanding anything to the contrary contained herein, the Corporation
shall have the right at any time after it shall have given written notice
pursuant to this Section (irrespective of whether a written request for
inclusion of any such Registrable Shares shall have been made) to elect not to
file any such proposed Registration Statement, or to withdraw the same after the
filing but prior to the effective date thereof.
The Corporation shall pay all costs, fees and expenses in connection with
any Registration Statement filed pursuant hereto, including, without limitation,
the Corporation's legal and accounting fees, printing expenses, blue sky fees
and expenses (except for fees and expenses of counsel for any underwriters of
the offering or counsel to any holders of Registrable Shares to be included
within such Registration Statement and any underwriting or selling commissions).
The Holder of any Registrable Shares agrees not to effect any public sale
or distribution (except to affiliates of the Holder who agree to be similarly
bound), including any sale pursuant to Rule 144 under the Securities Act, of any
Registrable Shares of the Corporation, or of any security convertible into or
exchangeable or exercisable for any Registrable Shares of the Corporation within
thirty (30) days prior before or ninety (90) days after the effective date of
the Registration Statement.
12. Acceptance. Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.
13. Governing Law. This Warrant and all rights, obligations and liabilities
hereunder shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed
by its duly authorized officer as of the date first set forth above.
XXXXXX XXXXXXX PROMOTIONS, INC.
By: Xxxxx XxXxxxxxx
----------------
Name: Xxxxx XxXxxxxxx
Title: Vice President
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NOTICE OF EXERCISE
TO: XXXXXX XXXXXXX PROMOTIONS, INC.
(1) The undersigned hereby elects to purchase ______________ shares of the
Common Stock of XXXXXX XXXXXXX PROMOTIONS, INC. (the "Corporation") pursuant to
the terms of the attached Warrant, and tenders herewith payment of the exercise
price in full, together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
________________________
(Name)
________________________
________________________
(Address)
(3) The undersigned represents that (i) the aforesaid shares of Common Stock are
being acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares;
(ii) the undersigned is aware of the Corporation's business affairs and
financial condition and has acquired sufficient information about the
Corporation to reach an informed and knowledgeable decision regarding its
investment in the Corporation; (iii) the undersigned is experienced in making
investments of this type and has such knowledge and background in financial and
business matters that the undersigned is capable of evaluating the merits and
risks of this investment and protecting the undersigned's own interests; (iv)
the undersigned understands that the shares of Common Stock issuable upon
exercise of this Warrant have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), by reason of a specific exemption from
the registration provisions of the Securities Act, which exemption depends upon,
among other things, the bona fide nature of the investment intent as expressed
herein, and, because such securities have not been registered under the
Securities Act, they must be held indefinitely unless subsequently registered
under the Securities Act or an exemption from such registration is available;
(v) the undersigned is aware that the aforesaid shares of Common Stock may not
be sold pursuant to Rule 144 adopted under the Securities Act unless certain
conditions are met and until the undersigned has held the shares for the number
of years prescribed by Rule 144, that among the conditions for use of the Rule
is the availability of current information to the public about the Corporation;
and (vi) the undersigned agrees not to make any disposition of all or any part
of the aforesaid shares of Common Stock unless and until there is then in effect
a registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with said registration
statement, or the undersigned has provided the Corporation with an opinion of
counsel satisfactory to the Corporation, stating that such registration is not
required.
_________________________________ ____________________________
(Print Name) (Signature)
Date: ____________________________
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and
supply required information. Do not use this form to
purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
Name: ____________________________
(Please Print)
Address:_________________________________
(Please Print)
Dated: _________________
Holder's Signature: _____________________________________
Holder's Address: _____________________________________
_____________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
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