Exhibit 10.10
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO THE SECURITIES REPRESENTED HEREBY UNDER THE ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
No. 3 Warrant to Purchase 9,220 Shares of
Common Stock (subject to adjustment)
WARRANT TO PURCHASE COMMON STOCK
of
TV FILME, INC.
Void after September 28, 1997
This certifies that, for value received, Xxxxxx Xxxxxxx or
registered assigns ("Holder") is entitled, subject to the terms set forth below,
to purchase from TV Filme, Inc. (the "Company"), a Delaware corporation, 9,220
shares of Common Stock, $0.01 par value, of the Company (the "Common Stock") as
constituted on the date of consummation of the initial public offering of shares
of Common Stock (the "Warrant Issue Date"), upon surrender hereof, at the
principal office of the Company referred to herein, with the subscription form
attached hereto duly executed, and simultaneous payment therefor in lawful money
of the United States or otherwise as hereinafter provided, at the Exercise Price
as set forth in Section 2 hereof. The number and Exercise Price of such shares
of Common Stock are subject to adjustment as provided herein. The term "Warrant"
as used herein shall include this Warrant, which is one of a series of warrants
issued for the Common Stock of the Company, and any warrants delivered in
substitution or exchange therefor as provided herein. This Warrant is issued in
connection with the reorganization of ITSA-Intercontinental Telecomunicacoes
S.A. ("ITSA"), as a wholly-owned subsidiary of the Company, in substitution for
the option granted to the Holder on March 28, 1996, pursuant to the Second
Addendum to the Investment Agreement of such date by and among the shareholders
of ITSA and certain other parties
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the term
commencing on the Warrant Issue Date and ending at 5:00 p.m., Eastern standard
time, on September 28, 1997, and shall be void thereafter.
2. Exercise Price. The Exercise Price at which this Warrant may be
exercised shall be $6.52 per share of Common Stock, as adjusted from time to
time pursuant to Section 11 hereof.
3. Exercise of Warrant.
(a) Payment of Exercise Price. The purchase rights represented
by this Warrant are exercisable by the Holder in whole or in part, but not for
less than 100 shares at
a time (or such lesser number of shares which may then constitute the maximum
number purchasable; such number being subject to adjustment as provided in
Section 11 hereof), at any time, or from time to time, during the term hereof as
described in Section 1 above, by the surrender of this Warrant and the Notice of
Exercise attached hereto, duly completed and executed on behalf of the Holder,
at the office of the Company (or such other office or agency of the Company as
it may designate by notice in writing to the Holder at the address of the Holder
appearing on the books of the Company) upon payment (i) in cash or by certified
or bank check or other check acceptable to the Company, (ii) by cancellation by
the Holder of indebtedness of the Company to the Holder, or (iii) by a
combination of (i) and (ii), of the purchase price of the shares to be
purchased.
(b) Issuance of Shares. This Warrant shall be deemed to have
been exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date. As promptly as practicable on or after such date and in any event
within ten (10) days thereafter, the Company at its expense shall issue and
deliver to the person or persons entitled to receive the same a certificate or
certificates for the number of shares issuable upon such exercise. In the event
that this Warrant is exercised in part, the Company at its expense will execute
and deliver a new Warrant of like tenor exercisable for the number of shares for
which this Warrant may then be exercised.
(c) Net Issue Exercise. Notwithstanding any provisions herein
to the contrary, if the fair market value (as defined below) of one share of
Common Stock is greater than the Exercise Price (at the date of calculation as
set forth below), in lieu of exercising this Warrant for cash, the Holder may
elect to receive shares equal to the value (as determined below) of this
Warrant, or the portion thereof being canceled, by surrender of this Warrant at
the principal office of the Company together with the properly endorsed Notice
of Exercise, in which event the Company shall issue 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 purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, under the portion of
the Warrant being canceled (at the date of such
calculation)
A = the fair market value of one share of the Common
Stock (at the date of such calculation)
B = the Exercise Price (as adjusted to the date of
such calculation)
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For purposes of the above calculation, "fair market value" of one share of
Common Stock shall be determined by the Company's Board of Directors in good
faith; provided, however, that (i) where no public market exists for the Common
Stock at the time of such exercise, the Holder may request a valuation of the
Common Stock to be performed by an independent valuation firm selected by the
Holder, at the sole cost and expense of the Holder, which valuation shall be
binding upon the Holder and the Company in determining "fair market value," and
(ii) where a public market exists for the Common Stock at the time of such
exercise, the "fair market value" per share shall be the average of the closing
bid and asked prices of the Common Stock quoted in the Over-The-Counter-Market
Summary or the last reported sale price of the Common Stock or the closing price
quoted on the Nasdaq National Market System or on any exchange on which the
Common Stock is listed, whichever is applicable, as published in The Wall Street
Journal for the five (5) trading days prior to the date of determination of fair
market value. Notwithstanding the foregoing, in the event the Warrant is
exercised in connection with the Company's initial public offering of Common
Stock, the "fair market value" per share shall be the per share offering price
to the public in the Company's initial public offering.
(d) Taxes. The Company will pay all documentary stamp taxes, if any,
attributable to the initial issuance of Common Stock or other securities
issuable upon the exercise of this Warrant; provided, however, that the Company
shall not be required to pay any tax or taxes that may be payable in respect of
any transfer involved in the issuance or delivery of any certificate for such
Common Stock or other securities.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the fair market value
(as defined in Section 3(c) hereof) of such share, less the Exercise Price,
multiplied by such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new Warrant of like tenor and amount.
6. Rights of Stockholders. Subject to Sections 9 and 11 of this
Warrant, the Holder shall not be entitled to vote or receive dividends or be
deemed the holder of Common Stock or any other securities of the Company that
may at any time be issuable on the exercise hereof for any purpose, nor shall
anything contained herein be construed to confer upon the Holder, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
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7. Transfer of Warrant.
(a) Warrant Register. The Company will maintain a register
(the "Warrant Register") containing the names, addresses and telecopier numbers
of the Holder or Holders. Any Holder of this Warrant or any portion thereof may
change its address as shown on the Warrant Register by written notice to the
Company requesting such a change. Except as otherwise expressly provided herein,
any notice or written communication required or permitted to be given to the
Holder may be delivered or given by certified or registered mail, return receipt
requested, to such Holder as shown on the Warrant Register and at the address
shown on the Warrant Register, or by telecopier, at the telecopier number shown
on the Warrant Register. Until this Warrant is transferred on the Warrant
Register of the Company, the Company may treat the Holder as shown on the
Warrant Register as the absolute owner of this Warrant for all purposes,
notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the
Holder, appoint an agent for the purpose of maintaining the Warrant Register
referred to in Section 7(a) above, issuing the Common Stock or other securities
then issuable upon the exercise of this Warrant, exchanging this Warrant,
replacing this Warrant or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange or replacement, as the case may be, shall be
made at the office of such agent.
(c) Transferability and Negotiability of Warrant. This Warrant
may not be transferred or assigned in whole or in part without compliance with
all applicable federal and state securities laws by the transferor and the
transferee (including delivery of investment representation letters and legal
opinions reasonably satisfactory to the Company, if such are requested by the
Company). Subject to the provisions of this Warrant with respect to compliance
with the Act, title to this Warrant may be transferred by endorsement (by the
Holder executing this Assignment Form attached hereto) and delivery in the same
manner as negotiable instruments transferable by endorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. On surrender of this
Warrant for exchange, properly endorsed on the Assignment Form and subject to
the provisions of this Warrant with respect to compliance with the Act, and with
the limitations on assignments and transfers contained in this Section 7, the
Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holders
(on payment by the Holder of any applicable transfer taxes) may direct, for the
number of shares issuable upon the exercise hereof.
(e) Compliance with Securities Laws.
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Common Stock to be issued upon
exercise hereof are being acquired solely for the Holder's own account and not
as a nominee for any other party, and that the Holder will not offer, sell or
otherwise dispose of this Warrant or any shares of Common Stock to be issued
upon exercise hereof except under circumstances that will not result in a
violation of the Act or any state securities laws. Upon exercise of this
Warrant, the Holder shall, if requested by the Company, confirm in writing, in a
form satisfactory to the
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Company, that the shares of Common Stock so purchased are being acquired solely
for the Holder's own account and not as a nominee for any other party, and not
with a view toward distribution or resale except under circumstances that will
not result in a violation of the Act or any state securities laws.
(ii) All shares of Common Stock issued upon exercise
hereof shall be stamped or imprinted with a legend in substantially the
following form (in addition to any legend required by state securities law):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH
SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
8. Reservation of Stock. The Company covenants that during the term
this Warrant is exercisable, the Company will reserve from its authorized and
unissued shares of Common Stock a sufficient number of shares to provide for the
issuance of Common Stock upon the exercise of this Warrant and, from time to
time, will take all steps necessary to amend its Certificate of Incorporation
(the "Certificate") to provide sufficient reserves of shares of Common Stock
issuable upon exercise of this Warrant. The Company further covenants that all
shares that may be issued upon the exercise of rights represented by this
Warrant, upon exercise of the rights represented by this Warrant and payment of
the Exercise Price, all as set forth herein will be free from all taxes, liens
and charges in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously or otherwise specified herein). The Company
agrees that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Common Stock upon the
exercise of this Warrant.
9. Notices.
(a) Notice of Adjustments to Exercise Price. Whenever the
Exercise Price or number of shares purchasable hereunder shall be adjusted
pursuant to Section 11 hereof, the Company shall issue a certificate signed by
its Chief Financial Officer setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, and the Exercise Price and number of shares
purchasable hereunder after giving effect to such adjustment, and shall cause a
copy of such certificate to be mailed by first class mail, postage prepaid, to
the Holder at the last address of the Holder as shown on the Warrant Register
and to be telecopied to the Holder at the last telecopier number of the Holder
as shown on the Warrant Register. At the Holder's option, the Company shall
confirm the adjustment noted on the certificate by causing such adjustment to be
computed by an independent certified public accountant at the expense of the
Company.
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(b) Notice of Certain Events. The Company shall give notice to
the Holder of the events specified in Section 11(f) in accordance therewith.
(c) Deemed Date of Receipt. All such notices, advices and
communications shall be deemed to have been received (i) in the case of personal
delivery, on the date of such delivery, (ii) in the case of mailing, on the
third business day following the date of such mailing, and (iii) in the case of
telecopier transmission, upon confirmation of receipt.
10. Amendments; Waivers.
(a) Amendments. This Warrant may not be amended except in
writing executed by the Company and the Holder.
(b) Waivers. No waivers of, or exceptions to, any term,
condition or provision of this Warrant, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
11. Anti-Dilution Provisions and Other Adjustments. In order to
prevent dilution of the rights granted hereunder, the Exercise Price shall be
subject to adjustment from time to time in accordance with this Section 11. Upon
each adjustment of the Exercise Price pursuant to this Section 11, whether
upward or downward, the Holder shall thereafter be entitled to acquire upon
exercise, at the Exercise Price resulting from such adjustment, the number of
shares of the Company's Common Stock obtainable by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of shares of
the Company's Common Stock acquirable immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment.
(a) Adjustment for Issue or Sale of Common Stock at Less than
Exercise Price. Except as provided in Section 11(b) or 11(e) below, if and
whenever on or after the date of issuance hereof the Company shall issue or
sell, or shall in accordance with Sections 11(a)(1) through (9) be deemed to
have issued or sold, any shares of its Common Stock for a consideration per
share less than the Exercise Price in effect immediately prior to the time of
such issue or sale, then forthwith upon such issue or sale (the "Triggering
Transaction"), the Exercise Price shall, subject to subsections (1) through (9)
of this Section 11(a), be reduced to the Exercise Price (calculated to the
nearest cent) determined by dividing:
(i) an amount equal to the sum of (x) the product derived by
multiplying the Number of Common Shares Deemed Outstanding
immediately prior to such Triggering Transaction by the Exercise
Price then in effect, plus (y) the consideration, if any, received
by the Company upon consummation of such Triggering Transaction, by
(ii) an amount equal to the sum of (x) the Number of Common
Shares Deemed Outstanding immediately prior to such Triggering
Transaction plus (y) the number of shares of Common Stock issued (or
deemed to be issued in accordance with Sections
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11(a)(1) through (9)) in connection with the Triggering
Transaction.
For purposes of this Section 11, the term "Number of Common Shares
Deemed Outstanding" at any given time shall mean the sum of (i) the number of
shares of the Company's Common Stock outstanding at such time plus (ii) the
number of shares of the Company's Common Stock deemed to be outstanding under
Sections 11(a)(1) through (9) at such time.
For purposes of determining the adjusted Exercise Price under this
Section 11(a), the following subsections (1) through (9) shall be applicable:
(1) In case the Company at any time shall in any manner grant
(whether directly or by assumption in a merger or otherwise) any
rights to subscribe for or to purchase or any options for the
purchase of, Common Stock or any stock or other securities
convertible into or exchangeable for Common Stock (such rights or
options being herein called "Options" and such convertible or
exchangeable stock or securities being herein called "Convertible
Securities"), whether or not such Options or the right to convert or
exchange any such Convertible Securities are immediately
exercisable, and the price per share for which the Common Stock is
issuable upon exercise, conversion or exchange (determined by
dividing (x) the total amount, if any, received or receivable by the
Company as consideration for the granting of such Options, plus the
minimum aggregate amount of additional consideration payable to the
Company upon the exercise of all such Options, plus, in the case of
such Options which relate to Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable upon
the issue or sale of such Convertible Securities and upon the
conversion or exchange thereof, by (y) the total maximum number of
shares of Common Stock issuable upon the exercise of such Options or
the conversion or exchange of such Convertible Securities) shall be
less than the Exercise Price in effect immediately prior to the time
of the granting of such Option, then the total maximum amount of
Common Stock issuable upon the exercise of such Options, or, in the
case of Options for Convertible Securities, upon the conversion or
exchange of such Convertible Securities, shall (as of the date of
granting of such Options) be deemed to be outstanding and to have
been issued and sold by the Company for such price per share. No
adjustment of the Exercise Price shall be made upon the actual issue
of such shares of Common Stock or such Convertible Securities upon
exercise of such Options, except as otherwise provide in subsection
(3) below).
(2) In case the Company at any time shall in any manner issue
(whether directly or by assumption in a merger or otherwise) or
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sell any Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable, and the
price per share for which Common Stock is issuable upon such
conversion or exchange (determined by dividing (x) the total amount
received or receivable by the Company as consideration for the issue
or sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company
upon the conversion or exchange thereof, by (y) the total maximum
number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less than the
Exercise Price in effect immediately prior to the time of such issue
or sale, then the total maximum number of shares of Common Stock
issuable upon conversion or exchange of all such Convertible
Securities shall (as of the date of the issue or sale of such
Convertible Securities) be deemed to be outstanding and to have been
issued and sold by the Company for such price per share. No
adjustment of the Exercise Price shall be made upon the actual issue
of such Common Stock upon exercise of the rights to exchange or
convert under such Convertible Securities, except as otherwise
provided in subsection (3) below.
(3) If the purchase price provided for in any Options referred to in
subsection (1), the additional consideration, if any, payable upon
the conversion or exchange of any Convertible Securities referred to
in subsection (1) or (2), or the rate at which any Convertible
Securities referred to in subsection (1) or (2) are convertible into
or exchangeable for Common Stock shall change at any time (other
than under or by reason of provisions designed to protect against
dilution of the type set forth in Section 11(a) or 11(c)), the
Exercise Price in effect at the time of such change shall forthwith
be readjusted to the Exercise Price which would have been in effect
at such time had such Options or Convertible Securities still
outstanding provided for such changed purchase price, additional
consideration or conversion rate, as the case may be, at the time
initially granted, issued or sold. If the purchase price provided
for in any Option referred to in subsection (1) or the rate at which
any Convertible Securities referred to in subsection (1) or (2) are
convertible into or exchangeable for Common Stock, shall be reduced
at any time under or by reason of provisions with respect thereto
designed to protect against dilution, then in case of the delivery
of Common Stock upon the exercise of any such Option or upon
conversion or exchange of any such Convertible Security, the
Exercise Price then in effect hereunder shall forthwith be adjusted
to such respective amount as would have been obtained had such
Option or Convertible Security never been issued as to such Common
Stock and had adjustments
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been made upon the issuance of the shares of Common Stock delivered
as aforesaid, but only if as a result of such adjustment the
Exercise Price then in effect hereunder is hereby reduced.
(4) On the expiration of any Option or the termination of any right
to convert or exchange any Convertible Securities, the Exercise
Price then in effect hereunder shall forthwith be increased to the
Exercise Price which would have been in effect at the time of such
expiration or termination had such Option or Convertible Securities,
to the extent outstanding immediately prior to such expiration or
termination, never been issued.
(5) In case any Options shall be issued in connection with the issue
or sale of other securities of the Company, together comprising one
integral transaction in which no specific consideration is allocated
to such Options by the parties thereto, such Options shall be deemed
to have been issued without consideration.
(6) In case any shares of Common Stock, Options or Convertible
Securities shall be issued or sold or deemed to have been issued or
sold for cash, the consideration received therefor shall be deemed
to be the amount received by the Company therefor. In case any
shares of Common Stock, Options or Convertible Securities shall be
issued or sold for a consideration other than cash, the amount of
the consideration other than cash received by the Company shall be
the fair value of such consideration as determined in good faith by
the Board of Directors of the Company. In case any shares of Common
Stock, Options or Convertible Securities shall be issued in
connection with any merger in which the Company is the surviving
corporation, the amount of consideration thereof shall be deemed to
be the fair value of such portion of the net assets and business of
the non-surviving corporation as shall be attributed by the Board of
Directors of the Company in good faith to such Common Stock, Options
or Convertible Securities, as the case may be.
(7) 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 shares so owned or held shall
be considered an issue or sale of Common Stock for the purpose of
this Section 11(a).
(8) In case the Company shall declare a dividend or make any other
distribution upon the stock of the Company payable in Common Stock,
Options or Convertible Securities, then in such case any Common
Stock, Options or Convertible Securities, as the
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case may be, issuable in payment of such dividend or distribution
shall be deemed to have been issued or sold without consideration.
(9) For purposes of this Section 11(a), in case the Company shall
take a record of the holders of its Common Stock for the purpose of
entitling them (x) to receive a dividend or other distribution
payable in Common Stock, Options or Convertible Securities, or (y)
to subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date shall be deemed to be the date of
the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or the making
of such other distribution or the date of the granting of such right
of subscription or purchase, as the case may be.
(b) Dividends Not Paid out of Earnings or Earned Surplus. In
the event that the Company shall declare a dividend upon the Common Stock (other
than a dividend payable in Common Stock covered by Section 11(a)(8)) payable
otherwise than out of earnings or earned surplus, determined in accordance with
generally accepted accounting principles, including the making of appropriate
deductions for minority interests, if any, in subsidiaries (herein referred to
as "Liquidating Dividends"), then as soon as possible after the exercise of this
Warrant, the Company shall pay to the person exercising such Warrant an amount
equal to the aggregate value at the time of such exercise of all Liquidating
Dividends (including but not limited to the Common Stock which would have been
issued at the time of such earlier exercise and all other securities which would
have been issued with respect to such Common Stock by reason of stock splits,
stock dividends, mergers or reorganizations, or for any other reason). For the
purposes of this Section 11(b), a dividend other than in cash shall be
considered payable out of earnings or earned surplus only to the extent that
such earnings or earned surplus are charged an amount equal to the fair value of
such dividend as determined in good faith by the Board of Directors of the
Company.
(c) Subdivisions and Combinations. In the case the Company
shall at any time subdivide (rather than by means of a dividend payable in
Common Stock covered by Section 11(a)(8)), its outstanding shares of Common
Stock into a greater number of shares, the Exercise Price in effect immediately
prior to such subdivision shall be appropriately reduced, and, conversely, in
case the outstanding shares of Common Stock of the Company shall be combined
into a smaller number of shares, the Exercise Price in effect immediately prior
to such combination shall be proportionately increased.
(d) Reorganization, Reclassification, Consolidation, Merger or
Sale of Assets. If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of the Company's assets to
another corporation shall be effected in such a way that holders of Common Stock
shall be entitled to receive stock, securities, cash or other property with
respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the holder of this Warrant shall have
the right to acquire and receive
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upon exercise of this Warrant such shares of stock, securities, cash or other
property issuable or payable (as part of the reorganization, reclassification,
consolidation, merger or sale) with respect to or in exchange for such number of
outstanding shares of the Company's Common Stock as would have been received
upon exercise of this Warrant at the Exercise Price then in effect. The Company
will not effect any such consolidation, merger or sale, unless prior to the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument mailed or delivered to the Holder at
the last address of the Holder as shown on the Warrant Register, the obligation
to deliver to the Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the Holder may be entitled to
purchase. If a purchase, tender or exchange offer is made to and accepted by the
holders of more than 50% of the outstanding shares of Common Stock of the
Company, the Company shall not effect any consolidation, merger or sale with the
person having made such offer or with any Affiliate of such person, unless prior
to the consummation of such consolidation, merger or sale the Holder shall have
been given a reasonable opportunity to then elect to receive upon the exercise
of this Warrant the stock, securities or assets, as the case may be, then
issuable with respect to the Common Stock in accordance with such offer. For
purposes hereof, the term "Affiliate" with respect to any given person shall
mean any person controlling, controlled by or under common control with the
given person.
(e) No Adjustment for Exercise of Certain Options, Warrants,
Etc. The provisions of this Section 11 shall not apply to any Common Stock
issued, issuable or deemed outstanding under Sections 11(a)(1) through (9): (i)
to any person pursuant to any stock option, stock purchase or similar plan or
arrangement for the benefit of employees, consultants or directors of the
Company or its subsidiaries in any amount approved by the Board of Directors, or
(ii) pursuant to options, warrants and conversion rights in existence on the
date of issuance of this Warrant.
(f) Notices of Certain Events. In the event that:
(1) the Company shall declare any cash dividend
upon its Common Stock, or
(2) the Company shall declare any dividend upon its
Common Stock payable in capital stock or make any special
dividend or other distribution to the holders of its Common
Stock, or
(3) the Company shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock
of any class or other rights, or
(4) there shall be any capital reorganization or
reclassification of the capital stock of the Company,
including any subdivision or combination of its outstanding
shares of Common Stock, or consolidation or merger of the
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Company with, or sale of all or substantially all of its
assets to, another corporation, or
(5) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in connection with such event, the Company shall give to the Holder:
(i) at least ten days prior written notice of the
date on which the books of the Company
shall close or a record shall be taken for
such dividend, distribution or subscription
rights or for determining rights to vote in
respect of any such reorganization,
reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up; and
(ii) in the case of any such reorganization,
reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, at least ten
days prior written notice of the date when the same
shall take place.
Such notice in accordance with the foregoing clause (i) shall also specify, in
the case of any such dividend, distribution or subscription rights, the date on
which the holders of Common Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause (ii) shall also specify the date on which
the holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be. Each such written notice shall be given by first
class mail, postage prepaid, addressed to the Holder at the last address of the
Holder as shown on the Warrant Register, or telecopied to the Holder at the last
telecopier number of the Holder as shown on the Warrant Register.
(g) Grant, Issue or Sale of Options, Convertible Securities or
Rights. If at any time or from time to time on or after the date of issuance
hereof, the Company shall grant, issue or sell any Options, Convertible
Securities or rights to purchase property (the "Purchase Rights") pro rata to
the record holders of any class of Common Stock of the Company and such grants,
issuances or sales do not result in any adjustment of the Exercise Price under
Section 11(a) hereof (other than by reason of the fact that the issuance of such
shares was at an Exercise Price equal to or greater than the current Exercise
Price), then the Holder shall be entitled to acquire (within fifteen days after
the later to occur of the initial exercise date of such Purchase Rights or
receipt by the Holder of the notice concerning Purchase Rights to which the
Holder shall be entitled under Section 11(f)) and upon the terms applicable to
such Purchase Rights either:
(i) the aggregate Purchase Rights which the Holder
could have acquired if it had held the number of
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shares of Common Stock acquirable upon exercise of this
Warrant immediately before the grant, issuance or sale
of such Purchase Rights; provided that if any Purchase
Rights were distributed to holders of Common Stock
without the payment of additional consideration by such
holders, corresponding Purchase Rights shall be
distributed to the exercising Holder as soon as possible
after such exercise and it shall not be necessary for
the exercising Holder specifically to request delivery
of such rights; or
(ii) in the event that any such Purchase Rights shall have
expired or shall expire prior to the end of said fifteen
day period, the number of shares of Common Stock or the
amount of property which such holder could have acquired
upon such exercise at the time or times at which the
Company granted, issued or sold such expired Purchase
Rights.
(h) Adjustment by Board of Directors. If any event occurs as
to which, in the opinion of the Board of Directors of the Company, the
provisions of this Section 11 are not strictly applicable, or if strictly
applicable would not fairly protect the rights of the Holder in accordance with
the essential intent and principles of such provisions, then the Board of
Directors shall make an adjustment in the application of such provisions, in
accordance with such essential intent and principles, so as to protect such
rights as aforesaid, but in no event shall any adjustment have the effect of
increasing the Exercise Price as otherwise determined pursuant to any of the
provisions of this Section 11, except in the case of a combination of shares of
a type contemplated in Section 11(c) and then in no event to an amount greater
than the Exercise Price as adjusted pursuant to Section 11(c).
(i) No Dilution or Impairment. The Company will not, by
amendment of its Certificate or bylaws 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
or any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such actions as
may be necessary or appropriate in order to protect the rights of the Holder
against dilution or other impairment.
12. Registration Rights If the Holder of this Warrant is a party to
that certain Registration Rights Agreement dated as of the date hereof (the
"Registration Rights Agreement"), such Holder shall be entitled to include any
shares of Common Stock received upon exercise of this Warrant (the "Warrant
Exercise Shares") with such Holder's Registrable Shares (as such term is defined
in the Registration Rights Agreement), and such Holder shall be entitled to the
same registration rights with respect to such Warrant Exercise Shares as such
Holder has with respect to such Holder's Registrable Shares pursuant to Section
1 of the Registration Rights Agreement, on the same terms and conditions as
those set forth in Section
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1 of the Registration Rights Agreement. The provisions of Section 1 of the
Registration Rights Agreement are hereby incorporated by reference and made a
part of this Agreement.
13. Miscellaneous.
(a) Governing Law. This Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware (without reference to any principles of conflicts of laws).
(b) Binding Effect. The provisions of this Warrant shall be
binding upon the Company and its successors and assigns.
(c) Remedies. In the event of a breach by the Company of this
Warrant, the Holder shall be entitled to injunctive relief and specific
performance of its rights under this Warrant, in addition to all of its rights
granted by law, including, without limitation, recovery of damages. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach of this Warrant by the Company and hereby waives
the defense in any action for injunctive relief or specific performance that a
remedy at law would be adequate.
(d) Headings. The headings in this Warrant are for purposes of
convenience in reference only and shall not be deemed to constitute a part
hereof.
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IN WITNESS WHEREOF, the undersigned have caused this Warrant to be
executed as of the 24th day of July, 1996.
TV FILME, INC.
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxx Xxxxxxx Lins de Albuquerque
------------------------ ----------------------------------------------
Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxx Xxxxxxx Lins de Albuquerque
Title: President
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NOTICE OF EXERCISE
(To be executed only upon exercise of Warrant)
To TV Filme, Inc.:
(1) The undersigned hereby elects to exercise the attached Warrant with
respect to _____ shares of Common Stock of TV Filme, Inc. pursuant to the terms
of the attached Warrant and (please check one of the following):
____ (a) tenders herewith payment of the purchase price for such
number of shares in full; or
____ (b) elects to receive shares equal to the value of the Warrant
with respect to such number of shares pursuant to Section 3(c)
thereof, in lieu of making payment of the purchase price.
(2) In exercising the Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock to be issued are being acquired
solely for the account of the undersigned and not as a nominee for any other
party, and that the undersigned will not sell, offer for sale, pledge,
hypothecate or otherwise dispose of any such shares of Common Stock, except
under circumstances that will not result in a violation of the Securities Act of
1933, as amended, or any state securities laws.
(3) 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)
________________________________
(Xxxxxx Xxxxxxx)
________________________________
(City, State, Zip Code)
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in such other name as is
specified below:
________________________________
(Name)
Dated: ________________ By: __________________________________
(Signature of Registered Owner)
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of the attached
Warrant hereby sells, assigns and transfers unto the Assignee named below all of
the rights of the undersigned under such Warrant, with respect to the number of
shares of Common Stock set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint as Attorney
________________________ to make such transfer on the books of TV Filme, Inc.,
maintained for the purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the
Assignee acknowledges that the Assignee will not sell, offer for sale, pledge,
hypothecate or otherwise dispose of the Warrant or any shares of Common Stock to
be issued upon exercise except under circumstances which will not result in a
violation of the Securities Act of 1933, as amended, or any state securities
laws. Further, the Assignee has acknowledged that upon exercise of the Warrant,
the Assignee shall, if requested by the Company, confirm in writing in a form
satisfactory to the Company, that the shares of stock so purchased are not being
acquired with a view toward distribution or resale, except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.
________________________________
(Signature of Registered Owner)
Dated: _____________ ________________________________
(Name of Registered Owner)
