EXHIBIT 4.2
NEITHER THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
BAM! ENTERTAINMENT, INC.
ADDITIONAL INVESTMENT RIGHT
Additional Investment Right No. ___ Dated: September 30, 2003
Bam! Entertainment, Inc., a Delaware corporation (the "COMPANY"), hereby
certifies that, for value received, ___________________ or its registered
assigns (the "HOLDER"), is entitled to purchase from the Company (a) up to a
total of _______ shares of common stock, $.001 par value per share (the "COMMON
STOCK"), of the Company (each such share, an "ADDITIONAL INVESTMENT RIGHT SHARE"
and all such shares, the "ADDITIONAL INVESTMENT RIGHT SHARES") at an exercise
price equal to $0.96 per share (as adjusted from time to time as provided in
Section 9, the "EXERCISE PRICE"), and (b) only as part of and in connection with
the purchase of the Additional Investment Right Shares, warrants in the form
attached hereto as Exhibit 1 to purchase up to ______ shares of Common Stock
(including any warrants issued in replacement thereof, the "ADDITIONAL
INVESTMENT RIGHT WARRANTS"), at any time and from time to time from and after
the date hereof and through and including the 45th Business Day following the
effective date of the Registration Statement (the "EFFECTIVE DATE") (the
"EXPIRATION DATE"), and subject to the following terms and conditions. This
Additional Investment Right (this "ADDITIONAL INVESTMENT RIGHT") is one of a
series of similar additional investment rights issued pursuant to that certain
Securities Purchase Agreement, dated as of the date hereof, by and among the
Company and the Purchasers identified therein (the "PURCHASE AGREEMENT"). All
such additional investment rights are referred to herein, collectively, as the
"ADDITIONAL INVESTMENT RIGHTS." Common Stock issuable upon exercise of the
Additional Investment Right Warrants shall be known herein as the "ADDITIONAL
INVESTMENT RIGHT WARRANT SHARES". Concurrently
with the issuance of Additional Investment Right Shares to the Holders further
to the exercise of this Additional Investment Right, the Holder shall be issued
Additional Investment Right Warrants exercisable for a number of Additional
Investment Right Warrant Shares equal to 90% of the number of Additional
Investment Right Shares so issued to the Holder upon such exercise. The term
"Registration Statement" as used in this paragraph shall have the meaning set
forth on the Common Stock Registration Rights Agreement between the Company and
the Initial Investors therein of even date herewith.
1. Definitions. In addition to the terms defined elsewhere in this
Additional Investment Right, capitalized terms that are not otherwise defined
herein have the meanings given to such terms in the Purchase Agreement.
2. Registration of Additional Investment Right. The Company shall register
this Additional Investment Right, upon records to be maintained by the Company
for that purpose (the "ADDITIONAL INVESTMENT RIGHT REGISTER"), in the name of
the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Additional Investment Right as the absolute owner
hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. The Company shall register the assignment
and transfer of any portion of this Additional Investment Right in the
Additional Investment Right Register, upon surrender of this Additional
Investment Right, with the Form of Assignment attached hereto duly completed and
signed, to the Transfer Agent or to the Company at its address specified herein.
Upon any such registration or transfer, a new additional investment right to
purchase Common Stock, in substantially the form of this Additional Investment
Right (any such new additional investment right, a "NEW ADDITIONAL INVESTMENT
RIGHT"), evidencing the portion of this Additional Investment Right so
transferred shall be issued to the transferee and a New Additional Investment
Right evidencing the remaining portion of this Additional Investment Right not
so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Additional Investment Right by the transferee thereof
shall be deemed the acceptance by such transferee of all of the rights and
obligations of a holder of an Additional Investment Right.
4. Exercise and Duration of Additional Investment Right.
(a) This Additional Investment Right shall be exercisable by the
registered Holder at any time and from time to time on or after the date hereof
to and including the Expiration Date. At 6:30 P.M., New York City time on the
Expiration Date, the portion of this Additional Investment Right not exercised
prior thereto shall be and become void and of no value.
(b) The Holder may exercise this Additional Investment Right by
delivering to the Company (i) an exercise notice, in the form attached hereto
(the "EXERCISE NOTICE"), appropriately completed and duly signed, and (ii)
payment of the Exercise Price for the number of Additional Investment Right
Shares and Additional Investment Right Warrants as to which this Additional
Investment Right is being exercised (which may take the form of a "cashless
exercise" if so indicated in the Exercise Notice and if a "cashless exercise"
may occur at such
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time pursuant to this Section 10 below), and the date such items are delivered
to the Company (as determined in accordance with the notice provisions hereof)
is an "EXERCISE DATE." The Holder shall not be required to deliver the original
Additional Investment Right in order to effect an exercise hereunder. Execution
and delivery of the Exercise Notice shall have the same effect as cancellation
of the original Additional Investment Right and issuance of a New Additional
Investment Right evidencing the right to purchase the remaining number of
Additional Investment Right Shares and Additional Investment Right Warrants.
5. Delivery of Additional Investment Right Shares and Additional
Investment Right Warrants.
(a) Upon exercise of this Additional Investment Right, the Company
shall promptly (but in no event later than three Trading Days after the Exercise
Date) issue or cause to be issued and cause to be delivered to or upon the
written order of the Holder and in such name or names as the Holder may
designate, a certificate for the Additional Investment Right Shares and
Additional Investment Right Warrants issuable upon such exercise, free of
restrictive legends unless a registration statement covering the resale of the
Additional Investment Right Shares or the Additional Investment Right Warrant
Shares, respectively, and naming the Holder as a selling stockholder thereunder
is not then effective and the Additional Investment Right Shares or the
Additional Investment Right Warrant Shares, respectively, are not freely
transferable without volume restrictions pursuant to Rule 144 under the
Securities Act. The Holder, or any Person so designated by the Holder to receive
Additional Investment Right Shares and Additional Investment Right Warrants,
shall be deemed to have become holder of record of such Additional Investment
Right Shares and Additional Investment Right Warrants as of the Exercise Date.
The Company shall, upon request of the Holder, use its best efforts to deliver
Additional Investment Right Shares hereunder electronically through the
Depository Trust Corporation or another established clearing corporation
performing similar functions.
(b) This Additional Investment Right is exercisable, either in its
entirety or, from time to time, for a portion of the number of Additional
Investment Right Shares and Additional Investment Right Warrants further to
terms set forth in the first paragraph of the Additional Investment Right. Upon
surrender of this Additional Investment Right following one or more partial
exercises, the Company shall issue or cause to be issued, at its expense, a New
Additional Investment Right evidencing the right to purchase the remaining
number of Additional Investment Right Shares and Additional Investment Right
Warrants.
(c) In addition to any other rights available to a Holder, if the
Company fails to deliver to the Holder a certificate representing Additional
Investment Right Shares on the date on which delivery of such certificate is
required by this Additional Investment Right, such Holder may notify the Company
via facsimile, mail or any other means, of its failure to deliver the
certificate (a "DELIVERY FAILURE NOTICE"). If the Company fails to deliver to
the Holder a certificate representing Additional Investment Right Shares by the
fifth Business Day after delivery of the Delivery Failure Notice by the Holder
and if after such fifth Business Day after the delivery of the Delivery Failure
Notice the Holder purchases (in an open market transaction or otherwise) shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the
Additional Investment Right Shares that the Holder anticipated receiving from
the Company (a "BUY-IN"), then the Company shall, within three Trading Days
after the Holder's request and in
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the Holder's discretion, either (i) pay cash to the Holder in an amount equal to
the Holder's total purchase price (including brokerage commissions, if any) for
the shares of Common Stock so purchased (the "BUY-IN PRICE"), at which point the
Company's obligation to deliver such certificate (and to issue such Common
Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the
Holder a certificate or certificates representing such Common Stock and pay cash
to the Holder in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of shares of Common Stock, times (B) the Closing
Price on the date of the event giving rise to the Company's obligation to
deliver such certificate. Notwithstanding anything to the contrary, this Section
5(c) shall not apply if the Company has used its best efforts to deliver the
certificates, but such certificates were not delivered due to the Transfer
Agent's failure to deliver the certificates in accordance with timely
instructions from the Company.
(d) The Company's obligations to issue and deliver Additional
Investment Right Shares and Additional Investment Right Warrants in accordance
with the terms hereof are absolute and unconditional, irrespective of any action
or inaction by the Holder to enforce the same, any waiver or consent with
respect to any provision hereof, the recovery of any judgment against any Person
or any action to enforce the same, or any setoff, counterclaim, recoupment,
limitation or termination, or any breach or alleged breach by the Holder or any
other Person of any obligation to the Company or any violation or alleged
violation of law by the Holder or any other Person, and irrespective of any
other circumstance which might otherwise limit such obligation of the Company to
the Holder in connection with the issuance of Additional Investment Right
Shares. Nothing herein shall limit a Holder's right to pursue any other remedies
available to it hereunder, at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief with respect to the
Company's failure to timely deliver certificates representing shares of Common
Stock upon exercise of the Additional Investment Right as required pursuant to
the terms hereof.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates for
shares of Common Stock and the Additional Investment Right Warrants upon
exercise of this Additional Investment Rights shall be made without charge to
the Holder for any issue or transfer tax, withholding tax, transfer agent fee or
other incidental tax or expense in respect of the issuance of such certificates,
all of which taxes and expenses shall be paid by the Company; 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 registration of any certificates for
Additional Investment Right Shares, Additional Investment Rights or any
Additional Investment Right Warrants in a name other than that of the Holder or
an Affiliate thereof. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Additional
Investment Right or receiving Additional Investment Right Shares and Additional
Investment Right Warrants upon exercise hereof.
7. Replacement of Additional Investment Right. If this Additional
Investment Right is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and substitution for this Additional
Investment Right, a New Additional Investment Right, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested. Applicants for
a New Additional Investment Right
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under such circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable third-party costs as
the Company may prescribe.
8. Reservation of Additional Investment Right Shares and Additional
Investment Right Warrant Shares. The Company covenants that it will at all times
reserve and keep available out of the aggregate of its authorized but unissued
and otherwise unreserved Common Stock, solely for the purpose of enabling it to
issue Additional Investment Right Shares upon exercise of this Additional
Investment Right and Additional Investment Right Warrant Shares upon exercise of
the Additional Investment Right Warrants as herein provided and as provided in
the Additional Investment Right Warrants, the number of Additional Investment
Right Shares which are then issuable and deliverable upon the exercise of this
entire Additional Investment Right and the number of Additional Investment Right
Warrant Shares which are then issuable and deliverable upon the exercise of any
Additional Investment Right Warrants, free from preemptive rights or any other
contingent purchase rights of persons other than the Holder (taking into account
the adjustments and restrictions of Section 9). The Company covenants that all
Additional Investment Right Shares and Additional Investment Right Warrant
Shares so issuable and deliverable shall, upon issuance and the payment of the
applicable exercise price in accordance with the terms hereof, or the Additional
Investment Warrants, as the case may be, be duly and validly authorized, issued
and fully paid and nonassessable. The Company will take all such action as may
be necessary to assure that such shares of Common Stock may be issued as
provided herein and further to the Additional Investment Right Warrants without
violation of any applicable law or regulation, or of any requirements of any
securities exchange or automated quotation system upon which the Common Stock
may be listed.
9. Certain Adjustments. The Exercise Price and number of Additional
Investment Right Shares issuable upon exercise of this Additional Investment
Right are subject to adjustment from time to time as set forth in this Section
9. The exercise price and number of Additional Investment Right Warrant Shares
issuable upon exercise of the Additional Investment Right Warrants shall be
subject to adjustment further to Section 4 of said Additional Investment Right
Warrants and the Additional Investment Right Warrants.
(a) Stock Dividends and Splits. If the Company, at any time while
this Additional Investment Right is outstanding, (i) pays a stock dividend on
its Common Stock or otherwise makes a distribution on any class of capital stock
that is payable in shares of Common Stock, (ii) subdivides outstanding shares of
Common Stock into a larger number of shares, or (iii) combines outstanding
shares of Common Stock into a smaller number of shares, then in each such case
the Exercise Price shall be multiplied by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding immediately before
such event and of which the denominator shall be the number of shares of Common
Stock outstanding immediately after such event. Any adjustment made pursuant to
clause (i) of this paragraph shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or
distribution, and any adjustment pursuant to clauses (ii) or (iii) of this
paragraph shall become effective immediately after the effective date of such
subdivision or combination.
(b) Pro Rata Distributions. If the Company, at any time while this
Additional Investment Right is outstanding, distributes to holders of Common
Stock (i) evidences of its indebtedness, (ii) any security (other than a
distribution of Common Stock covered by the
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preceding paragraph), (iii) rights or warrants to subscribe for or purchase any
security, or (iv) any other asset (in each case, "DISTRIBUTED PROPERTY"), then
in each such case the Exercise Price in effect immediately prior to the record
date fixed for determination of stockholders entitled to receive such
distribution shall be adjusted (effective on such record date) to equal the
product of such Exercise Price times a fraction of which the denominator shall
be the average of the Closing Prices for the five Trading Days immediately prior
to (but not including) such record date and of which the numerator shall be such
average less the then fair market value of the Distributed Property distributed
in respect of one outstanding share of Common Stock, as determined by the
Company's independent certified public accountants that regularly examine the
financial statements of the Company (an "APPRAISER"). In such event, the Holder,
after receipt of the determination by the Appraiser, shall have the right to
select an additional appraiser (which shall be a nationally recognized
accounting firm), in which case such fair market value shall be deemed to equal
the average of the values determined by each of the Appraiser and such
appraiser. As an alternative to the foregoing adjustment to the Exercise Price,
at the request of the Holder delivered before the 90th day after such record
date, the Company will deliver to such Holder, within five Trading Days after
such request (or, if later, on the effective date of such distribution), the
Distributed Property that such Holder would have been entitled to receive in
respect of the Additional Investment Right Shares for which this Additional
Investment Right could have been exercised immediately prior to such record
date. If such Distributed Property is not delivered to a Holder pursuant to the
preceding sentence, then upon expiration of or any exercise of the Additional
Investment Right that occurs after such record date, such Holder shall remain
entitled to receive, in addition to the Additional Investment Right Shares
otherwise issuable upon such exercise (if applicable), such Distributed
Property.
(c) Fundamental Transactions. If, at any time while this Additional
Investment Right is outstanding, (i) the Company effects any merger or
consolidation of the Company with or into another Person, (ii) the Company
effects any sale of all or substantially all of its assets in one or a series of
related transactions, (iii) any tender offer or exchange offer (whether by the
Company or another Person) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other securities,
cash or property, or (iv) the Company effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property
(other than as a result of a subdivision or combination of shares of Common
Stock covered by Section 9(a) above) (in any such case, a "FUNDAMENTAL
TRANSACTION"), then the Holder shall have the right thereafter to receive, upon
exercise of this Additional Investment Right, the same amount and kind of
securities, cash or property as it would have been entitled to receive upon the
occurrence of such Fundamental Transaction if it had been, immediately prior to
such Fundamental Transaction, the holder of the number of Additional Investment
Right Shares then issuable upon exercise in full of this Additional Investment
Right (the "ALTERNATE CONSIDERATION"). The aggregate Exercise Price for this
Additional Investment Right will not be affected by any such Fundamental
Transaction, but the Company shall apportion such aggregate Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be received
in a Fundamental Transaction, then the Holder shall be given the same choice as
to the Alternate Consideration it receives upon any exercise of this Additional
Investment Right following such Fundamental Transaction. At the Holder's
request, any
6
successor to the Company or surviving entity in such Fundamental Transaction
shall issue to the Holder a new additional investment right consistent with the
foregoing provisions and evidencing the Holder's right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof. The terms
of any agreement pursuant to which a Fundamental Transaction is effected shall
include terms requiring any such successor or surviving entity to comply with
the provisions of this paragraph (c) and insuring that the Additional Investment
Right (or any such replacement security) will be similarly adjusted upon any
subsequent transaction analogous to a Fundamental Transaction. If any
Fundamental Transaction constitutes or results in a Change of Control (as
defined below), then at the request of the Holder delivered before the 90th day
after such Fundamental Transaction, the Company (or any such successor or
surviving entity) will purchase the Additional Investment Right from the Holder
for a purchase price, payable in cash within five Business Days after such
request (or, if later, on the effective date of the Fundamental Transaction),
equal to the Black Scholes value of the remaining unexercised portion of this
Additional Investment Right on the date of such request. For the purposes of
this Section 9(c), "CHANGE OF CONTROL" means the consummation of a "Rule 13e-3
transaction" as defined in Rule 13e-3 under the Exchange Act with respect to the
Company that is initiated or agreed to by a member of the Company's management.
(d) Number of Additional Investment Right Shares. Simultaneously
with any adjustment to the Exercise Price pursuant to paragraphs (a) or (b) of
this Section, the number of Additional Investment Right Shares that may be
purchased upon exercise of this Additional Investment Right shall be increased
or decreased proportionately, so that after such adjustment the aggregate
Exercise Price payable hereunder for the increased or decreased number of
Additional Investment Right Shares shall be the same as the aggregate Exercise
Price in effect immediately prior to such adjustment.
(e) Calculations. All calculations under this Section 9 shall be
made to the nearest cent or the nearest 1/100th of a share, as applicable. The
number of shares of Common Stock outstanding at any given time shall not include
shares owned or held by or for the account of the Company, and the disposition
of any such shares shall be considered an issue or sale of Common Stock.
(f) Notice of Adjustments. Upon the occurrence of each adjustment
pursuant to this Section 9, the Company at its expense will promptly compute
such adjustment in accordance with the terms of this Additional Investment Right
and prepare a certificate setting forth such adjustment, including a statement
of the adjusted Exercise Price and adjusted number or type of Additional
Investment Right Shares or other securities issuable upon exercise of this
Additional Investment Right (as applicable), describing the transactions giving
rise to such adjustments and showing in detail the facts upon which such
adjustment is based. Upon written request, the Company will promptly deliver a
copy of each such certificate to the Holder and to the Company's Transfer Agent.
(g) Notice of Corporate Events. If the Company (i) declares a
dividend or any other distribution of cash, securities or other property in
respect of its Common Stock, including, without limitation, any granting of
rights or warrants to subscribe for or purchase any capital stock of the Company
or any Subsidiary, (ii) authorizes or approves, enters into any agreement
contemplating or solicits stockholder approval for any Fundamental Transaction
or (iii)
7
authorizes the voluntary dissolution, liquidation or winding up of the affairs
of the Company, then the Company shall deliver to the Holder a notice describing
the material terms and conditions of such transaction, at least fifteen (15)
days prior to the applicable record or effective date on which a Person would
need to hold Common Stock in order to participate in or vote with respect to
such transaction, and the Company will take all steps reasonably necessary in
order to insure that the Holder is given the practical opportunity to exercise
this Additional Investment Right prior to such time so as to participate in or
vote with respect to such transaction; provided, however, that the failure to
deliver such notice or any defect therein shall not affect the validity of the
corporate action required to be described in such notice.
10. Payment of Exercise Price. The Holder shall pay the Exercise Price in
immediately available funds; provided, however, if the Registration Statement
did not become effective on or before Required Effectiveness Date and is not
continuously effective through the Expiration Date, the Holder may satisfy its
obligation to pay the Exercise Price through a "cashless exercise," in which
event the Company shall issue to the Holder the number of Additional Investment
Right Shares determined as follows:
X = Y [(A-B)/A]
where:
X = the number of Additional Investment
Right Shares to be issued to the Holder.
Y = the number of Additional Investment
Right Shares with respect to which this
Additional Investment Right is being
exercised.
A = the average of the Closing Prices for
the five Trading Days immediately prior to
(but not including) the Exercise Date.
B = the Exercise Price.
For purposes of Rule 144 promulgated under the Securities Act, it is
intended, understood and acknowledged that the Additional Investment Right
Shares issued in a cashless exercise transaction shall be deemed to have been
acquired by the Holder, and the holding period for the Additional Investment
Right Shares shall be deemed to have commenced, on the date this Additional
Investment Right was originally issued pursuant to the Purchase Agreement.
11. Limitation on Exercise. Notwithstanding anything to the contrary
contained herein, the number of shares of Common Stock that may be acquired by
the Holder upon any exercise of this Additional Investment Right (or otherwise
in respect hereof) shall be limited to the extent necessary to insure that,
following such exercise (or other issuance), the total number of shares of
Common Stock then beneficially owned by such Holder and its Affiliates and any
other Persons whose beneficial ownership of Common Stock would be aggregated
with the Holder's for purposes of Section 13(d) of the Exchange Act, does not
exceed 4.999% (the "MAXIMUM PERCENTAGE") of the total number of issued and
outstanding shares of Common Stock (including for such purpose the shares of
Common Stock issuable upon such exercise).
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For such purposes, beneficial ownership shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. Each delivery of an Exercise Notice hereunder will constitute a
representation by the Holder that it has evaluated the limitation set forth in
this paragraph and determined that issuance of the full number of Additional
Investment Right Shares requested in such Exercise Notice is permitted under
this paragraph. The Company's obligation to issue shares of Common Stock in
excess of the limitation referred to in this Section shall be suspended (and
shall not terminate or expire notwithstanding any contrary provisions hereof)
until such time, if any, as such shares of Common Stock may be issued in
compliance with such limitation. By written notice to the Company, the Holder
may waive the provisions of this Section or increase or decrease the Maximum
Percentage to any other percentage specified in such notice, but (i) any such
waiver or increase will not be effective until the 61st day after such notice is
delivered to the Company, and (ii) any such waiver or increase or decrease will
apply only to the Holder and not to any other holder of Additional Investment
Rights.
12. Fractional Shares. The Company shall not be required to issue or cause
to be issued fractional Additional Investment Right Shares or Additional
Investment Right Warrants to purchase fractional Additional Investment Right
Warrant Shares on the exercise of this Additional Investment Right. If any
fraction of a Additional Investment Right Share or if any Additional Investment
Right Warrant to purchase a fraction of an Additional Investment Right Warrant
Share would, except for the provisions of this Section, be issuable upon
exercise of this Additional Investment Right, the number of Additional
Investment Right Shares and/or Additional Investment Right Warrant Shares
issuable upon exercise of the Additional Investment Right Warrants, as the case
may be, to be issued will be rounded up to the nearest whole share or right to
purchase the nearest whole share, as the case may be.
13. Notices. Any and all notices or other communications or deliveries
hereunder (including without limitation any Exercise Notice) shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day or
later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading
Day following the date of deposit with a nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address and facsimile numbers for such notices or
communications shall be as set forth in the Purchase Agreement.
14. Additional Investment Right Agent. The Company shall serve as
additional investment right agent under this Additional Investment Right. Upon
30 days' notice to the Holder, the Company may appoint a new additional
investment right agent. Any corporation into which the Company or any new
additional investment right agent may be merged or any corporation resulting
from any consolidation to which the Company or any new additional investment
right agent shall be a party or any corporation to which the Company or any new
additional investment right agent transfers substantially all of its corporate
trust or shareholders services business shall be a successor additional
investment right agent under this Additional Investment Right without any
further act. Any such successor additional investment right agent
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shall promptly cause notice of its succession as additional investment right
agent to be mailed (by first class mail, postage prepaid) to the Holder at the
Holder's last address as shown on the Additional Investment Right Register.
15. Miscellaneous.
(a) Subject to the restrictions on transfer set forth on the first
page hereof, this Additional Investment Right may be assigned by the Holder.
This Additional Investment Right may not be assigned by the Company except to a
successor in the event of a Fundamental Transaction. This Additional Investment
Right shall be binding on and inure to the benefit of the parties hereto and
their respective successors and assigns. Subject to the preceding sentence,
nothing in this Additional Investment Right shall be construed to give to any
Person other than the Company and the Holder any legal or equitable right,
remedy or cause of action under this Additional Investment Right. This
Additional Investment Right may be amended only in writing signed by the Company
and the Holder and their successors and assigns.
(b) The Company will not, by amendment of its governing documents 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 of this
Additional Investment Right, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder against
impairment. Without limiting the generality of the foregoing, the Company (i)
will not increase the par value of any Additional Investment Right Shares or
Additional Investment Right Warrant Shares above the amount payable therefor on
such exercise, (ii) will take all such action as may be reasonably necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable Additional Investment Right Shares or Additional Investment
Right Warrant Shares on the exercise of this Additional Investment Right and the
Additional Investment Right Warrants, respectively, and (iii) will not close its
shareholder books or records in any manner which interferes with the timely
exercise of this Additional Investment Right.
(C) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. THE CORPORATE LAWS
OF THE STATE OF DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS
OF THE COMPANY AND ITS STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS ADDITIONAL INVESTMENT RIGHT
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED
HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION
DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY
(WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES
TO IT UNDER
10
THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED
TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
THE COMPANY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
(d) The headings herein are for convenience only, do not constitute
a part of this Additional Investment Right and shall not be deemed to limit or
affect any of the provisions hereof.
(e) In case any one or more of the provisions of this Additional
Investment Right shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Additional
Investment Right shall not in any way be affected or impaired thereby and the
parties will attempt in good faith to agree upon a valid and enforceable
provision which shall be a commercially reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this Additional
Investment Right.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, the Company has caused this Additional Investment
Right to be duly executed by its authorized officer as of the date first
indicated above.
BAM! ENTERTAINMENT, INC.
By:
Name:
Title:
12
FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Additional Investment Right)
To: BAM! ENTERTAINMENT, INC.
The undersigned is the Holder of Additional Investment Right No. _______ (the
"ADDITIONAL INVESTMENT RIGHT") issued by BAM! ENTERTAINMENT, INC., a Delaware
corporation (the "COMPANY"). Capitalized terms used herein and not otherwise
defined have the respective meanings set forth in the Additional Investment
Right.
1. The Additional Investment Right is currently exercisable to purchase a
total of ______ Additional Investment Right Shares and _______ Additional
Investment Right Warrants.
2. The undersigned Holder hereby exercises its right to purchase ________
Additional Investment Right Shares and Additional Investment Right
Warrants exercisable for ______ shares of Common Stock (which number of
shares underlying said Additional Investment Right Warrants shall be equal
to 90% of the Additional Investment Right Shares so issued upon exercise
of the Additional Investment Right).
2. The Holder intends that payment of the Exercise Price shall be made as
(check one):
____ "Cash Exercise"
____ "Cashless Exercise"
3. If the holder has elected a Cash Exercise, the holder shall pay the sum of
$____________ to the Company in accordance with the terms of the
Additional Investment Right.
4. Pursuant to this exercise, the Company shall deliver to the holder
_______________ Additional Investment Right Shares and Additional
Investment Right Warrants exercisable for ______ shares of Common Stock
(which number of shares underlying said Additional Investment Right
Warrants shall be equal to 90% of the Additional Investment Right Shares
so issued upon exercise of the Additional Investment Right).
5. Following this exercise, the Additional Investment Right shall be
exercisable to purchase a total of ______________ Additional Investment
Right Shares and Additional Investment Right Warrants exercisable for
_____ shares of Common Stock (which number of shares underlying said
Additional Investment Right Warrants shall be equal to 90% of said
remaining Additional Investment Right Shares).
Date: , Name of Holder:
----------------- ----------
(Print)
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the
Additional Investment Right)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Additional Investment Right]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Additional Investment Right to purchase ____________ shares of Common Stock and
warrants to purchase shares of the Common Stock (which number of shares
underlying said warrants shall be equal to 90% of the shares so sold, assigned
and transferred) of BAM! ENTERTAINMENT, INC. to which the within Additional
Investment Right relates and appoints ________________ attorney to transfer said
right on the books of BAM! ENTERTAINMENT, INC. with full power of substitution
in the premises.
Dated: ,
------------------, -----------
-------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the
Additional Right)
-------------------------------
Address of Transferee
-------------------------------
-------------------------------
In the presence of:
----------------------------------
