Exhibit 3
NEITHER THIS WARRANT NOR ANY SECURITIES ACQUIRED UPON THE EXERCISE
OF THIS WARRANT (THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS AS
EVIDENCED BY AN OPINION OF COUNSEL DELIVERED AND REASONABLY ACCEPTABLE TO THE
COMPANY.
----------------------------------------------
PLATINUM ENTERTAINMENT, INC.
COMMON STOCK PURCHASE WARRANT
-----------------------------------------------
This certifies that, for good and valuable consideration, Platinum
Entertainment, Inc., a Delaware corporation (the "Company"), grants to
SK-Palladin Partners, LP, its successors and assigns (the "Warrantholder"), the
right to subscribe for and purchase from the Company One Million Eight Hundred
Thousand (1,800,000) validly issued, fully paid and nonassessable shares (the
"Warrant Shares") of the Company's Common Stock, par value $.001 per share (the
"Common Stock"), at the Exercise Price, as defined herein, at any time prior to
5:00 p.m., New York City time, on October 31, 2007 (the "Expiration Date"),
subject to the terms, conditions and adjustments herein set forth.
This Warrant is being issued in connection with the issue and sale
by the Company of shares of its Series B Convertible Preferred Stock, par value
$.001 per share (the "Series B Preferred Stock"), pursuant to the terms of an
Investment Agreement, dated as of October 12, 1997, as amended and as hereafter
amended (the "Investment Agreement"), among the Company, the Warrantholder and
certain other parties, and is subject to the terms thereof. This Warrant is one
of the "Warrants" referred to in the Investment Agreement, and the Warrantholder
is entitled to the rights and subject to the obligations contained in the
Investment Agreement.
The "Exercise Price" shall mean (x) prior to the expiration of the
Thirty Day Period (as defined below), $6.25 per share of Common Stock, as
adjusted hereunder (the "Initial Exercise Price") or (y) after the expiration of
the Thirty Day Period, the lesser of (1) the Initial Exercise Price and (2)
82.5% of the average of the daily Closing Price per share of Common Stock for
the 30 consecutive trading days
2
following the public release by the Company of its consolidated earnings
statement for the fiscal year ending May 31, 1998 (the "Thirty Day Period"),
subject to appropriate adjustment for the events described in Section 6.1(a)
herein if any such event occurs during the Thirty Day Period; provided that if
shares of Common Stock are not then traded on any national securities exchange
or quoted by NASDAQ or a similar service, the Closing Price for the foregoing
purposes shall be deemed to be the fair market value of a share of Common Stock
as shall be determined in good faith by the Board of Directors of the Company.
If the Board of Directors is unable to determine the fair market value, or if
the holders of a majority in interest of the Warrant Shares issuable upon
exercise of the Warrants disagree with the Board's determination of fair market
value, then fair market value will be determined by an Independent Financial
Expert in accordance with the provisions set forth in the definition of Current
Market Price herein. Notwithstanding the foregoing, if at any time prior to the
expiration of the Thirty Day Period, no shares of the Series B Preferred Stock
remain outstanding, the definition of "Exercise Price" shall mean the Initial
Exercise Price, as adjusted hereunder. The Exercise Price as determined in
accordance with the foregoing shall be adjusted from time to time in accordance
with the provisions of Section 6.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed thereto in the Investment Agreement.
1. EXERCISE OF WARRANTS.
1.1 EXERCISE OF WARRANT. This Warrant may be exercised, in
whole or in part, at any time or from time to time prior to the Expiration Date,
by surrendering to the Company at its principal office this Warrant, with an
Exercise Form (as defined herein) duly executed by the Warrantholder and
accompanied by payment of the Exercise Price for the number of shares of Common
Stock specified in such Exercise Form.
1.2 CASHLESS EXERCISE. In lieu of the payment of the Exercise
Price, the Warrantholder shall have the right (but not the obligation) to
require the Company to convert this Warrant, in whole or in part, into shares of
Common Stock (the "Conversion Right") as provided for in this Section 1.2. Upon
exercise of the Conversion Right, the Company shall deliver to the Warrantholder
(without payment by the Warrantholder of any of the Exercise Price) that number
of shares of Common Stock equal to the quotient obtained by dividing (x) the
value of the Warrant or portion thereof being exercised at the time the
Conversion Right is exercised (determined by subtracting the aggregate Exercise
Price in effect immediately prior to the exercise of the Conversion Right for
the number of shares for which the Warrant is being exercised from the aggregate
Current Market Price (as defined herein) of the shares of Common Stock issuable
upon exercise of the Warrant for the number of shares for which the Warrant is
being exercised immediately prior to the exercise of the Conversion Right) by
(y) the Current Market Price of one share of Common Stock immediately prior to
the exercise of the Conversion Right. The
3
Conversion Right may be exercised at any time or from time to time prior to the
Expiration Date by surrendering to the Company at its principal office this
Warrant, with an Exercise Form duly executed by the Warrantholder and indicating
that the Warrantholder wishes to exercise the Conversion Right and specifying
the total number of shares of Common Stock for which the Warrant is being
exercised.
1.3 DELIVERY OF WARRANT SHARES; EFFECTIVENESS OF EXERCISE.
(a) DELIVERY OF WARRANT SHARES. A stock certificate
or certificates for the Warrant Shares specified in the Exercise Form along with
a check for the amount of cash to be paid in lieu of fractional shares, if any,
shall be delivered to the Warrantholder within 10 Business Days after the
Exercise Date (as defined herein); PROVIDED, HOWEVER, that if the Conversion
Right is exercised in accordance with Section 1.2 and a determination by the
Board of Directors or an Independent Financial Expert is required to determine
the Current Market Price of the Common Stock, such delivery shall be made
promptly after such determination is made. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the stock
certificate or certificates and cash in lieu of fractional shares, if any,
deliver to the Warrantholder a new Warrant evidencing the rights to purchase the
remaining Warrant Shares, which new Warrant shall in all other respects be
identical with this Warrant.
(b) EFFECTIVENESS OF EXERCISE. The exercise of this
Warrant shall be deemed to have been effective immediately prior to the close of
business on the Business Day on which this Warrant is exercised in accordance
with Section 1.1 or 1.2 (the "Exercise Date"). The Person in whose name any
certificate for shares of Common Stock shall be issuable upon such exercise
shall be deemed to be the record holder of such shares of Common Stock for all
purposes on the Exercise Date.
1.4 PAYMENT OF TAXES. The issuance of certificates for Warrant
Shares shall be made without charge to the Warrantholder for any stock transfer
or other issuance tax in respect thereof; PROVIDED, HOWEVER, that the
Warrantholder shall be required to pay any and all taxes that may be payable in
respect of any transfer involved in the issuance and delivery of any certificate
in a name other than that of the then Warrantholder as reflected upon the books
of the Company.
2. RESTRICTIVE LEGENDS.
2.1 WARRANTS. Except as otherwise permitted by this Section 2,
each Warrant (and each Warrant issued in substitution for any Warrant pursuant
to Section 4) shall be stamped or otherwise imprinted with a legend in substan
tially the following form:
4
NEITHER THIS WARRANT NOR ANY SECURITIES ACQUIRED UPON THE EXERCISE
OF THIS WARRANT (THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS OR AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER SUCH ACT AND SUCH LAWS AS EVIDENCED BY AN OPINION OF
COUNSEL DELIVERED AND REASONABLY ACCEPTABLE TO THE COMPANY.
2.2 WARRANT SHARES. Except as otherwise permitted by this
Section 2, each stock certificate for Warrant Shares issued upon the exercise of
any Warrant and each stock certificate issued upon the direct or indirect
transfer of any such Warrant Shares shall be stamped or otherwise imprinted with
a legend in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT AND SUCH LAWS AS EVIDENCED BY AN OPINION OF COUNSEL
DELIVERED AND REASONABLY ACCEPTABLE TO THE COMPANY.
2.3 REMOVAL OF LEGENDS. Notwithstanding the foregoing, the
Warrantholder may require the Company to issue a Warrant or a stock certificate
for Warrant Shares, in each case without a legend, if either (i) such Warrant or
such Warrant Shares, as the case may be, have been registered for resale under
the Securities Act and sold pursuant to such registration or (ii) if reasonably
requested by the Company, the Warrantholder has delivered to the Company an
opinion of legal counsel (from a firm reasonably satisfactory to the Company)
which opinion shall be addressed to the Company and be reasonably satisfactory
in form and substance to the Company's counsel, to the effect that such
registration is not required with respect to such Warrant or such Warrant
Shares, as the case may be.
5
3. RESERVATION AND REGISTRATION OF SHARES, ETC.
The Company covenants and agrees as follows:
(a) All Warrant Shares that are issued upon the
exercise of this Warrant will, upon issuance, be validly issued, fully paid and
nonassessable, not subject to any preemptive rights, and free from all taxes,
liens, security interests, charges, and other encumbrances with respect to the
issuance thereof, other than taxes in respect of any transfer occurring
contemporaneously with such issue.
(b) During the period within which this Warrant may
be exercised, the Company will at all times have authorized and reserved, and
keep available free from preemptive rights, a sufficient number of shares of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
4. LOSS OR DESTRUCTION OF WARRANT.
Subject to the terms and conditions hereof, upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of mutilation, upon surrender and cancellation of this
Warrant, the Company will execute and deliver a new Warrant of like tenor.
5. OWNERSHIP OF WARRANT.
The Company may deem and treat the Person in whose name this Warrant
is registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer.
6. CERTAIN ADJUSTMENTS.
6.1 The number of Warrant Shares purchasable upon the exercise
of this Warrant and the Exercise Price shall be subject to adjustment as
follows:
(a) STOCK DIVIDENDS, SUBDIVISION, COMBINATION OR
RECLASSIFICATION OF COMMON STOCK. If at any time after the date of the issuance
of this Warrant the Company shall (i) declare a stock dividend on the Common
Stock payable in shares of its capital stock (including Common Stock), (ii)
increase the number of shares of Common Stock outstanding by a subdivision or
split-up of shares
6
of Common Stock, (iii) decrease the number of shares of Common Stock outstanding
by a combination of shares of Common Stock or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock, then, on the record
date for such dividend or the effective date of such subdivision or split-up,
combination or reclassification, as the case may be, the number and kind of
shares to be delivered upon exercise of this Warrant will be adjusted so that
the Warrantholder will be entitled to receive the number and kind of shares of
capital stock that such Warrantholder would have owned or been entitled to
receive upon or by reason of such event had this Warrant been exercised
immediately prior thereto, and the Exercise Price will be adjusted as provided
below in paragraph (i).
(b) REORGANIZATION, ETC. If at any time after the date
of issuance of this Warrant any consolidation of the Company with or merger of
the Company with or into any other Person (other than a merger or consolidation
in which the Company is the surviving or continuing corporation and which does
not result in any reclassification of, or change (other than a change in par
value or from par value to no par value or from no par value to par value, or as
a result of a subdivision or combination) in, outstanding shares of Common
Stock) or any sale, lease or other transfer of all or substantially all of the
assets of the Company to any other person (each, a "Reorganization Event"),
shall be effected in such a way that the holders of Common Stock shall be
entitled to receive cash, stock, other securities or assets (whether such cash,
stock, other securities or assets are issued or distributed by the Company or
another Person) with respect to or in exchange for Common Stock, then, upon
exercise of this Warrant the Warrantholder shall have the right to receive the
kind and amount of cash, stock, other securities or assets receivable upon such
Reorganization Event by a holder of the number of shares of Common Stock that
such Warrantholder would have been entitled to receive upon exercise of this
Warrant had this Warrant been exercised immediately before such Reorganization
Event, subject to adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 6.1. Notwithstanding
the foregoing, if more than 20% in aggregate value of the cash, stock, other
securities or assets deliverable to such holder in accordance with the foregoing
provisions of this Section 6(b) would consist of cash or debt securities, then
the Warrantholder shall have the right (the "Special Reorganization Right") at
its election, exercisable by giving written notice to the Company prior to 120
days following the consummation of such Reorganization Event to receive from the
Company, and the Company shall pay to the Warrantholder promptly after the
exercise by the Warrantholder of the Special Reorganization Right, instead of
the cash, stock, other securities or assets otherwise deliverable to such
holder, an amount of cash equal to the fair market value of this Warrant
immediately prior to the announcement of such Reorganization Event, to be
determined by an Independent Financial Expert selected by the parties in
accordance with the procedure set forth in the definition of Current Market
Price herein, giving due consideration to such factors as the financial
condition and prospects of the Company, the remaining unexpired term of the
Warrant and the market price of the Common Stock of the Company after
announcement of such Reorganization Event. The Company shall not
7
enter into any of the transactions referred to in this Section 6.1(b) unless
effective provision shall be made so as to give effect to the provisions set
forth in this Section 6.1(b).
(c) CERTAIN ISSUANCES OF COMMON STOCK. If at any time
after the date of issuance of this Warrant the Company shall issue or sell, or
fix a record date for the issuance of, (A) Common Stock (or securities
convertible into or exchangeable or exercisable for Common Stock) (other than
Excluded Securities) or (B) rights, options or warrants entitling the holders
thereof to subscribe for or purchase Common Stock (or securities convertible
into or exchangeable or exercisable for Common Stock) (other than Excluded
Securities), in any such case, at a price per share (treating the price per
share of the securities convertible into or exchangeable or exercisable for
Common Stock as equal to (x) the sum of (i) the price for a unit of the security
convertible into or exchangeable or exercisable for Common Stock plus (ii) any
additional consideration initially payable upon the conversion of such security
into Common Stock or the exchange or exercise of such security for Common Stock
divided by (y) the number of shares of Common Stock initially underlying such
convertible, exchangeable or exercisable security) that is less than the greater
of the Current Market Price of the Common Stock and the Exercise Price on the
date of such issuance or such record date (the "Measuring Price") then,
immediately after the date of such issuance or sale or on such record date, the
number of shares of Common Stock to be delivered upon exercise of this Warrant
shall be increased so that the Warrantholder thereafter shall be entitled to
receive the number of shares of Common Stock determined by multiplying the
number of shares of Common Stock such Warrantholder would have been entitled to
receive immediately before the date of such issuance or sale or such record date
by a fraction, the denominator of which shall be the number of shares of Common
Stock outstanding (calculated to include the shares of Common Stock underlying
the Warrants, shares of Common Stock underlying the Affiliate Warrants, shares
of Common Stock underlying the Harnick Warrant and all then currently
exerciseable, convertible and exchangeable securities that are "in the money")
on such date plus the number of shares of Common Stock that the aggregate
offering price of the total number of shares so offered for subscription or
purchase (or the aggregate purchase price of the convertible, exchangeable or
exerciseable securities so offered plus the aggregate of amount of any
additional consideration initially payable upon conversion into Common Stock or
exchange or exercise for Common Stock) would purchase at the Measuring Price and
the numerator of which shall be the number of shares of Common Stock outstanding
(calculated to include the shares of Common Stock underlying the Warrants,
shares of Common Stock underlying the Affiliate Warrants, shares of Common Stock
underlying the Harnick Warrant and all then currently exerciseable, convertible
and exchangeable securities that are "in the money") on such date plus the
number of additional shares of Common Stock offered for subscription or purchase
(or into or for which the convertible or exchangeable securities or rights,
options or warrants so offered are initially convertible or exchangeable or
exercisable, as the case may be), and the Exercise Price shall be adjusted as
provided below in paragraph (i). "Excluded Securities" means (A) shares
8
of Common Stock issued upon conversion or exercise of convertible securities,
warrants and options of the Company, outstanding on the date this Warrant is
originally issued, (B) shares of Common Stock, and options to purchase such
shares, issued to officers, directors, employees or former employees of, or
consultants to, the Company or any of its subsidiaries pursuant to any equity
incentive plan, agreement or other arrangement which has been approved by a vote
of at least two-thirds (2/3) of the Board of Directors of the Company, (C)
shares of Common Stock issued upon conversion of shares of the Series B
Preferred Stock, (D) shares of Common Stock issued upon exercise of the
Affiliate Warrants, (E) shares of Common Stock issued upon conversion of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per share
("Series C Preferred Stock"), (F) shares of Common Stock issued upon exercise of
the Harnick Warrant and (G) shares of Common Stock issued upon exercise of any
Warrant.
(d) EXTRAORDINARY DISTRIBUTIONS. If at any time after
the date of issuance of this Warrant the Company shall distribute to all holders
of its Common Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation and the Common Stock is not changed or exchanged) cash, evidences of
indebtedness, securities or other assets (excluding (i) ordinary course cash
dividends to the extent such dividends do not exceed the Company's retained
earnings and (ii) dividends payable in shares of capital stock for which
adjustment is made under Section 6.1(a)) or rights, options or warrants to
subscribe for or purchase securities of the Company (excluding those for which
adjustment is made under Section 6.1(c)), then the number of shares of Common
Stock to be delivered to such Warrantholder upon exercise of this Warrant shall
be increased so that the Warrantholder thereafter shall be entitled to receive
the number of shares of Common Stock determined by multiplying the number of
shares such Warrantholder would have been entitled to receive immediately before
such record date by a fraction, the denominator of which shall be the Current
Market Price per share of Common Stock on such record date minus the then fair
market value (as reasonably determined by the Board of Directors of the Company
in good faith) of the portion of the cash, evidences of indebtedness, securities
or other assets so distributed or of such rights or warrants applicable to one
share of Common Stock (provided that such denominator shall in no event be less
than $.01) and the numerator of which shall be the Current Market Price per
share of the Common Stock, and the Exercise Price shall be adjusted as provided
below in paragraph (i).
(e) PRO RATA REPURCHASES. If at any time after the date
of issuance of this Warrant, the Company or any subsidiary thereof shall make a
Pro Rata Repurchase, then the number of shares of Common Stock to be delivered
to such Warrantholder upon exercise of this Warrant shall be increased so that
the Warrantholder thereafter shall be entitled to receive the number of shares
of Common Stock determined by multiplying the number of shares of Common Stock
such Warrantholder would have been entitled to receive immediately before such
Pro Rata
9
Repurchase by a fraction (which in no event shall be less than one) the
denominator of which shall be (i) the product of (x) the number of shares of
Common Stock outstanding immediately before such Pro Rata Repurchase and (y) the
Current Market Price of the Common Stock as of the day immediately preceding the
first public announcement by the Company of the intent to effect such Pro Rata
Repurchase minus (ii) the aggregate purchase price of the Pro Rata Repurchase
(provided that such denominator shall never be less than $.01), and the
numerator of which shall be the product of (i) the number of shares of Common
Stock outstanding immediately before such Pro Rata Repurchase minus the number
of shares of Common Stock repurchased in such Pro Rata Repurchase and (ii) the
Current Market Price of the Common Stock as of the day immediately preceding the
first public announcement by the Company of the intent to effect such Pro Rata
Repurchase.
(f) OTHER ADJUSTMENTS (CONDITIONAL ANNUAL INCREASE IN
WARRANT SHARES). On each anniversary of the date of the issuance of this
Warrant, if any shares of Series B Preferred Stock remain outstanding, then as
of each such anniversary the number of shares of Common Stock to be delivered
upon exercise of the Warrant shall be increased by an amount equal to 12% of the
Warrant Shares issuable upon the exercise of this Warrant (calculated without
giving effect to any prior adjustment pursuant to this section 6(f)).
(g) FRACTIONAL SHARES. No fractional shares of
Common Stock or scrip shall be issued to any Warrantholder in connection with
the exercise of this Warrant. Instead of any fractional shares of Common Stock
that would otherwise be issuable to such Warrantholder, the Company will pay to
such Warrantholder a cash adjustment in respect of such fractional interest in
an amount equal to that fractional interest of the then Current Market Price per
share of Common Stock.
(h) CARRYOVER. Notwithstanding any other provision of
this Section 6.1, no adjustment shall be made to the number of shares of Common
Stock to be delivered to the Warrantholder (or to the Exercise Price) if such
adjustment represents less than .05% of the number of shares to be so delivered,
but any lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment that together with any
adjustments so carried forward shall amount to .05% or more of the number of
shares to be so delivered.
(i) EXERCISE PRICE ADJUSTMENT. Whenever the number
of Warrant Shares purchasable upon the exercise of the Warrant is adjusted as
provided pursuant to this Section 6.1 (other than any adjustment made pursuant
to Section 6.1(f) hereunder), the Exercise Price per share payable upon the
exercise of this Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, of which the numerator shall
be the number of Warrant Shares purchasable upon the exercise of the Warrant
immediately prior to such adjustment, and of which the denominator shall be the
number of Warrant Shares
10
purchasable immediately thereafter; PROVIDED, HOWEVER, that the Exercise Price
for each Warrant Share shall in no event be less than the par value of such
Warrant Share.
(j) MULTIPLE ADJUSTMENTS. If any action or transaction
would require adjustment of the number of shares of Common Stock to be delivered
to the Warrantholder upon exercise of this Warrant pursuant to more than one
paragraph of this Section 6.1, only one adjustment shall be made and each such
adjustment shall be the amount of adjustment that has the highest absolute
value.
6.2 NOTICE OF ADJUSTMENT. Whenever the number of Warrant
Shares or the Exercise Price of such Warrant Shares is adjusted, as herein
provided, the Company shall promptly mail by first class mail, postage prepaid,
to the Warrantholder, notice of such adjustment or adjustments and a certificate
of a firm of independent public accountants of recognized national standing
selected by the Board of Directors of the Company (who shall be appointed at the
Company's expense and who may be the independent public accountants regularly
employed by the Company) setting forth the number of Warrant Shares and the
Exercise Price of such Warrant Shares after such adjustment, setting forth a
brief statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made.
7. PUT RIGHTS. The Warrantholder shall have the following Put
Rights:
(a) At the earlier of (i) the fifth anniversary of the
date hereof and (ii) a Change of Control, the Warrantholder may notify the
Company in writing (the "PUT NOTICE") of the Warrantholder's desire to cause the
Company to repurchase, in the case of clause (i) above, all (but not less than
all) of the Warrant Shares (issued or represented by the Warrant) at a price per
share equal to the Repurchase Price (the "Five-Year Put"), or, in the case of
clause (ii) above, the Warrant at the Change of Control Repurchase Price (the
"Change of Control Put").
(b) If the Company receives a Put Notice pursuant to
Section 7(a), it shall deliver to the Warrantholder, by first class mail,
postage prepaid, mailed as soon as practicable and if possible within thirty
(30) days of the receipt by the Company of the Put Notice, a notice stating: (i)
the date as of which such repurchase shall occur (which date (the "Put Closing")
shall be not less than ten (10) nor more than thirty (30) days following the
date of such notice, but in any event prior to the Expiration Date); (ii) in the
case of a Five-Year Put, the number of Warrant Shares (issued or represented by
this Warrant) to be purchased from the Warrantholder and the Repurchase Price
(which shall be calculated as of the date of the Put Notice) or, in the case of
a Change of Control Put, the Change of Control Repurchase Price; and (iii) the
place or places where certificate or certificates representing this Warrant or
Warrant Shares are to be surrendered for payment.
11
(c) With respect to Warrants and Warrant Shares
properly tendered for repurchase, if the Company fails to pay the Repurchase
Price or the Change of Control Repurchase Price on the date fixed for
repurchase, the Corporation shall also pay interest thereon at the rate of 12%
per annum, compounded on a quarterly basis, until such time as such satisfaction
shall have occurred. In addition, the Warrantholder shall be entitled to the
rights and remedies provided in Section 6.2 of the Investment Agreement.
(d) At the Put Closing, the Warrantholder shall deliver
to the Company the certificate or certificates representing the Warrantholder's
Warrant or Warrant Shares and the Company shall deliver to the Warrantholder an
amount equal to, in the case of a Five-Year Put, the product obtained by
multiplying (i) the number of such Warrant Shares (issued or represented by this
Warrant) by (ii) the Repurchase Price or, in the case of a Change of Control
Put, the Change of Control Repurchase Price, by cashier's or certified check
payable to the Warrantholder or by wire transfer of immediately available funds
to an account designated by the Warrantholder.
(e) The Company shall not (and shall not permit any
Affiliate of the Company to) enter into any contract or other consensual
arrangement that by its terms restricts the Company's ability to honor the Put.
8. AMENDMENTS. Any provision of this Warrant may be amended and the
observance thereof waived only with the written consent of the Company and the
Warrantholder.
9. NOTICES OF CORPORATE ACTION. So long as this Warrant has not been
exercised in full, in the event of:
(a) any consolidation or merger involving the Company
and any other party or any transfer of all or substantially all the assets of
the Company to any other party, or
(b) any voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
the Company will mail, by first class mail, postage prepaid, to the
Warrantholder a notice specifying (i) the date or expected date on which any
such record is to be taken for the purpose of a dividend, distribution or right
and the amount and character of any such dividend, distribution or right and
(ii) the date or expected date on which a reorganization, reclassification,
recapitalization, consolidation, merger, transfer, disso lution, liquidation or
winding-up is to take place and the time, if any such time is to be fixed, as of
which the holders of record of Common Stock (or other securities) shall be
entitled to exchange their shares of Common Stock (or other securities) for the
securities or other property deliverable upon such reorganization,
reclassification,
12
recapitalization, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be delivered as soon as practicable and if
possible at least 20 days prior to the date therein specified in the case of any
date referred to in the foregoing subdivisions (i) and (ii). Failure to give the
notice specified hereunder shall have no effect on the status or effectiveness
of the action to which the required notice relates.
10. DEFINITIONS.
As used herein, unless the context otherwise requires, the following
terms have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
that, directly or indirectly, controls, is controlled by, or is under common
control with such first Person. For the purpose of this definition, "control"
shall mean, as to any Person, the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Affiliate Warrants" mean the warrants issued in connection with the
issue and sale by the Company of shares of its Series C Preferred Stock on the
Closing Date (as defined in the Investment Agreement).
"BUSINESS DAY" means any day other than a Saturday, Sunday or a day
on which national banks are authorized by law or executive order to close in the
State of New York.
"CHANGE OF CONTROL" shall mean (i) the direct or indirect sale,
lease, exchange or other transfer of all or substantially all of the assets of
the Company to any Person or entity or group of Persons or entities acting in
concert as a partnership or other group within the meaning of Rule 13d-5 under
the Exchange Act (a "GROUP OF PERSONS"), (ii) the merger or consolidation of the
Company with or into another corporation with the effect that the then existing
stockholders of the Company hold less than 50% of the combined voting power of
the then outstanding securities of the surviving corporation of such merger or
the corporation resulting from such xxxxxxx dation ordinarily (and apart from
rights accruing under special circumstances) having the right to vote in the
election of directors, (iii) the replacement of a majority of the Board of
Directors of the Company, over a two-year period, from the directors who
constituted the Board of Directors at the beginning of such period, and such
replacement shall not have been approved by the Board of Directors of the
Company (or its replacements approved by the Board of Directors of the Company)
as constituted at the beginning of such period, (iv) a Person or Group of
Persons (other than the Investors and their Affiliates) shall, as a result of a
tender or exchange offer, open market purchases, privately negotiated purchases
or otherwise, have become the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of securities of the Company representing 49% or more of
the combined voting power of
13
the then outstanding securities of the Company ordinarily (and apart from rights
accruing under special circumstances) having the right to vote in the election
of directors.
"CHANGE OF CONTROL REPURCHASE PRICE" means an amount of cash equal
to the fair market value of this Warrant immediately prior to the announcement
of a Change of Control, to be determined by an Independent Financial Expert
selected by the Company and a majority in interest of the Warrant Shares in
accordance with the procedure set forth in the definition of Current Market
Price herein, giving due consideration to such factors as the financial
condition and prospects of the Company, the remaining unexpired term of this
Warrant and the market price of the Common Stock of the Company after
announcement of such Change of Control.
"CLOSING PRICE" of the Common Stock as of any day, means (a) the
last reported sale price of such stock (regular way) or, in case no such sale
takes place on such day, the average of the closing bid and asked prices, in
either case as reported on the principal national securities exchange on which
the Common Stock is listed or admitted to trading or (b) if the Common Stock is
not listed or admitted to trading on any national securities exchange, the last
reported sale price or, in case no such sale takes place on such day, the
average of the highest reported bid and lowest reported asked quotation for the
Common Stock, in either case reported on the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ"), or a similar service if
NASDAQ is no longer reporting such information.
"COMMON STOCK" has the meaning specified on the cover of this
Warrant.
"COMPANY" has the meaning specified on the cover of this Warrant.
"CURRENT MARKET PRICE" means, with respect to each share of Common
Stock as of any date, the average of the daily Closing Prices per share of
Common Stock for the 10 consecutive trading days commencing 15 trading days
prior to such date; provided that if on any such date the shares of Common Stock
are not listed or admitted for trading on any national securities exchange or
quoted by NASDAQ or a similar service, the Current Market Price for a share of
Common Stock shall be the fair market value of such share as determined in good
faith by the Board of Directors of the Company. If the Board of Directors is
unable to determine the fair market value, or if the holders of a majority in
interest of the Warrant Shares issued or issuable upon conversion of the
Warrants issued pursuant to the Investment Agreement disagree with the Board's
determination of fair market value by written notice delivered to the Company
within five (5) business days after the Board's determination thereof is
communicated in writing to such holders, which notice specifies a
majority-in-interest of such holders' determination of fair market value, then
the Company and a majority-in-interest of such holders shall select an
Independent Financial Expert which shall determine such fair market value. If
the Company and such holders are unable to
14
agree upon an Independent Financial Expert within fifteen (15) days after the
request by such holders, each of the Company and such holders shall select an
Independent Financial Expert within five (5) days following the expiration of
such fifteen (15) day period, and these Independent Financial Experts shall
select a third Independent Financial Expert. The determination of fair market
value by such Independent Financial Expert shall be final, binding and
conclusive on the Company and all holders of the Warrants and Warrant Shares.
All costs and fees of any of this Independent Financial Experts retained in
accordance with the foregoing shall be borne by the Company.
"EXERCISE FORM" means an Exercise Form in the form annexed hereto as
Exhibit A.
"EXERCISE PRICE" has the meaning specified on the cover of this
Warrant.
"EXPIRATION DATE" has the meaning specified on the cover of this
Warrant.
"HARNICK WARRANT" means the warrant to purchase 50,000 shares of
Common Stock to be issued to Xxxx X. Xxxxxxx at the closing of the Investment
Agreement.
"INDEPENDENT FINANCIAL EXPERT" means an independent nationally
recognized investment banking firm.
"INVESTORS" means MAC Music LLC, a Delaware limited liability
company, and SK-Palladin Partners, LP, a Delaware limited partnership.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization, estate, other entity or government or any agency or
political subdivision thereof.
"PRO RATA REPURCHASE" means any purchase of shares of Common Stock
by the Company or by any of its subsidiaries whether for cash, shares of capital
stock of the Company, other securities of the Company, evidences of indebtedness
of the Company or any other Person or any other property (including, without
limitation, shares of capital stock, other securities or evidences of
indebtedness of a subsidiary of the Company), or any combination thereof, which
purchase is subject to Section 13(e) of the Securities Exchange Act of 1934, as
amended, or is made pursuant to an offer made available to all holders of Common
Stock.
"REPURCHASE PRICE" means, on any date, the Current Market Price per
share of Common Stock as of such date, less the per share Exercise Price;
PROVIDED, that if at the time of determination of the Repurchase Price, the
Warrantholder shall be
15
entitled to receive any securities or property other than Common Stock, the
Repurchase Price shall include a cash amount per Warrant Share equal to that
portion of the fair value of such securities or property allocable to each
Warrant Share.
"SECURITIES ACT" has the meaning specified on the cover of this
Warrant.
"WARRANTHOLDER" has the meaning specified on the cover of this
Warrant.
"WARRANT SHARES" has the meaning specified on the cover of this
Warrant; provided, however, that Warrant Shares shall not include shares sold to
the public pursuant to Rule 144 under the Securities Act of 1933, as amended, or
pursuant to an effective registration statement under the Securities Act.
11. MISCELLANEOUS.
11.1 ENTIRE AGREEMENT. This Warrant together with the
Investment Agreement constitute the entire agreement between the Company and the
Warrantholder with respect to this Warrant.
11.2 BINDING EFFECT; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company and the Warrantholder and their
respective successors and assigns. Nothing in this Warrant, expressed or
implied, is intended to or shall confer on any person other than the Company and
the Warrantholder, or their respective successors or assigns, any rights,
remedies, obligations or liabilities under or by reason of this Warrant.
11.3 SECTION AND OTHER HEADINGS. The section and other
headings contained in this Warrant are for reference purposes only and shall not
be deemed to be a part of this Warrant or to affect the meaning or
interpretation of this Warrant.
11.4 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally,
telecopied or sent by certified, registered or express mail, postage prepaid.
Any such notice shall be deemed given when so delivered personally, telecopied
or sent by certified, registered or express mail, as follows:
(a) if to the Company, addressed to:
Platinum Entertainment, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
16
with a copy to:
Xxxxxx, Muchin & Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) if to the Warrantholder, addressed to:
SK-Palladin Partners, LP
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: XXXX X. XXXXXXXX
----------------
Telecopy: (000) 000-0000
----------------
Any party may by notice given in accordance with this Section 11.4 designate
another address or person for receipt of notices hereunder.
11.5 SEVERABILITY. Any term or provision of this Warrant which
is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
11.6 GOVERNING LAW. This Warrant shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to such agreements made and to be performed entirely within such
State.
11.7 CERTAIN REMEDIES. The Warrantholder shall be entitled to
an injunction or injunctions to prevent breaches of the provisions of this
Warrant and to enforce specifically the terms and provisions of this Warrant in
any court of the United States or any court of any state having jurisdiction,
this being in addition to any other remedy to which the Warrantholder may be
entitled at law or in equity.
11.8 NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing
contained in this Warrant shall be deemed to confer upon the Warrantholder any
rights as a stockholder of the Company or as imposing any liabilities on the
Warrantholder to
17
purchase any securities whether such liabilities are asserted by the Company or
by creditors or stockholders of the Company or otherwise.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer.
PLATINUM ENTERTAINMENT, INC.
By: /s/ XXXXXX XXXXXX
----------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
Dated: December 12, 1997
18
EXHIBIT A
---------
EXERCISE FORM
-------------
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase __________ of the Warrant Shares and
[herewith tenders payment for such Warrant Shares to the order of Platinum
Entertainment, Inc. in the amount of $__________] [hereby exercises its
Conversion Right] in accordance with the terms of this Warrant. The undersigned
requests that a certificate for [such Warrant Shares] [that number of Warrant
Shares to which the undersigned is entitled as calculated pursuant to Section
1.2] be registered in the name of the undersigned and that such certificates be
delivered to the undersigned's address below.
Dated:__________________________
Signature____________________________
____________________________
(Print Name)
____________________________
(Street Address)
____________________________
(City) (State) (Zip Code)
