EXHIBIT 4.4
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE
ACT"). THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT.
WARRANT TO PURCHASE COMMON STOCK
OF
XXX.XXX, INC.
VOID AFTER MARCH 13, 2001
This Warrant (the "Warrant") is issued to Bad Boy Touring, Inc. or its
registered assigns ("Holder") by XXX.xxx, Inc., a Delaware corporation (the
"Company"), on March 14, 2000 (the "Warrant Issue Date") as partial
consideration for certain rights relative to the Xxxx Xxxxx and the Family
European tour, in connection with an agreement of even date herewith by and
among the Company and Bad Boy Touring, Inc.
1. Purchase Shares. Subject to the terms and conditions herein set
forth, the Holder is entitled, upon surrender of this Warrant at the principal
corporate office of the Company (or at such other place as the Company shall
notify the Holder hereof in writing), to purchase from the Company up to 100,000
shares of common stock (the "Warrant Shares") of the Company, $.001 par value
(the "Common Stock") at the Exercise Price (defined below), subject to
adjustment as provided in Section 8.
2. Exercise Price. The purchase price for the Shares shall be $16.00
per Warrant Share, as adjusted from time to time pursuant to Section 8 hereof
(the "Exercise Price").
3. Exercise Period. This Warrant shall be exercisable, in whole or in
part, during the period commencing on the Warrant Issue Date and ending at 5:00
p.m. on March 13, 2001 (the "Exercise Period").
4. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the rights to purchase Warrant Shares evidenced hereby. Such
exercise shall be effected by:
(a) the surrender of the Warrant, together with a duly
executed copy of the form of Notice of Exercise attached hereto, to the
Secretary of the Company at its principal corporate offices; and
(b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Warrant Shares being
purchased.
5. Certificates for Shares. Upon the exercise of the purchase rights
evidenced by this Warrant, one or more certificates for the number of Warrant
Shares so purchased shall be issued as soon as practicable thereafter (with
appropriate restrictive legends, if applicable), and in any event within thirty
(30) days of the delivery of the subscription notice and the Holder's compliance
with Section 4 hereof.
6. Issuance of Shares. The Company covenants that the Warrant Shares,
when issued pursuant to the exercise of this Warrant, will be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens, and charges
with respect to the issuance thereof.
7. Adjustment of Exercise Price and Kind and Number of Shares. The
number and kind of securities purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time during the Exercise Period of this Warrant
(i) subdivide its Common Stock, by split-up or otherwise, or combine
its Common Stock or (ii) issue additional shares of its Common Stock or
other equity securities as a dividend with respect to any shares of its
Common Stock, the number of shares of Common Stock issuable on the
exercise of this Warrant shall forthwith be proportionately increased
in the case of a subdivision or stock dividend, or proportionately
decreased in the case of a combination. Appropriate adjustments shall
also be made to the Exercise price payable per Warrant Share, but the
aggregate Exercise price payable for the total number of Warrant Shares
purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 8(a) shall become effective at the close
of business on the date the subdivision or combination becomes
effective, or as of the record date of such dividend, or in the event
that no record date is fixed, upon the making of such dividend.
(b) Reclassification, Reorganization and Consolidation. In
case of any reclassification, capital reorganization, or change in the
Common Stock of the Company (other than as a result of a subdivision,
combination, or stock dividend provided for in Section 7(a) above),
then, as a condition of such reclassification, reorganization, or
change, lawful provision shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be
delivered to the Holder, so that the Holder shall have the right at any
time prior to the expiration of this Warrant to purchase, at a total
price equal to that payable upon the exercise of this Warrant (subject
to adjustment of the Exercise Price as provided in Section 8, the kind
and amount of shares of stock and other securities and property
receivable in connection with such reclassification, reorganization, or
change by a holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change. In any such case appropriate provisions
shall be made with respect to the rights and interest of the Holder so
that the provisions hereof shall thereafter be applicable with respect
to any shares of stock or other securities and property deliverable
upon exercise hereof, and appropriate adjustments shall be made to
the purchase price per share payable hereunder, provided the aggregate
purchase price shall remain the same.
(c) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of
the Warrant, or in the Exercise Price, the Company shall promptly
notify the Holder of such event and of the number of shares of Common
Stock or other securities or property thereafter purchasable upon
exercise of this Warrant.
(d) Issuance of New Warrant. Upon the occurrence of any of the
events listed in this Section 7 that results in an adjustment of the
type, number or exercise price of the securities underlying this
Warrant, the Holder shall have the right to receive a new warrant
reflecting such adjustment upon the Holder tendering this Warrant in
exchange. The new warrant shall otherwise have terms identical to this
Warrant.
8. Covenants and Conditions.
(a) No Impairment. Pursuant to the terms and conditions of this
Warrant, Company shall: (i) reserve an appropriate number of
shares of Company's Common Stock to facilitate the issuance of
shares to Holder pursuant to this Warrant and (ii) not amend
its articles or take any other action that would materially
impair Company's ability to comply with the terms of the
Warrant.
(b) Registration Rights. At any time after the execution of this
Agreement, if the Company determines that it will file a
registration statement under the 1933 Act (other than a
registration statement on a Form S-4 or S-8 or filed in
connection with an exchange offer or an offering of securities
solely to the Company's existing securities holders) on any
form that would also permit the registration of the Warrant
Shares and such filing is to be on its behalf and/or on behalf
of selling holders of its securities for the general
registration of its securities to be sold for cash, at such
time the Company will, within forty-five (45) days following
such determination, give the Holder written notice by
registered mail of such determination setting forth the date
on which the Company proposes to file such registration
statement, which date will be no earlier than thirty (30) days
from the date of such notice, and advising the Holder of its
right to have its Warrant Shares included in such
registration. Upon the written request of the Holder received
by the Company no later than thirty (30) days after the date
of the Company's notice, the Company will use all reasonable
efforts to cause to be registered under the 1933 Act all of
the Warrant Shares that the Holder has so requested to be
registered. If, in the written opinion of the managing
underwriter or underwriters (or, in the case of a
non-underwritten offering, in the written opinion of the
placement agent), the total amount of such securities to be so
registered, including such Warrant Shares, will exceed the
maximum amount of the Company's securities which can be
marketed (i) at a price reasonably related to the then current
value of such securities, or (ii) without otherwise materially
and adversely affecting the entire offering, then the amount
of the Warrant Shares to be offered for the accounts of the
Holder will be reduced pro rata to the extent necessary to
reduce the total amount of securities to be included in such
offering to the recommended amount; provided, that if
securities are being offered for the account of other persons
which have registration rights which are pari passu with the
Holder as well as the Company, such reduction will not
represent a greater fraction of the number of securities
intended to be offered by the Holder than the fraction of
similar reductions imposed on such other persons which have
rights pari passu with the Holder, other than the Company over
the amount of securities they intended to offer.
Notwithstanding the foregoing, the rights of the Holder set
forth in this Section shall, only in the event of an
underwritten public offering of the Company's securities, be
subordinate to the rights of such shareholders and
warrantholders of the Company who have previously received
registration rights from the Company.
9. Representations and Warranties. Pursuant to the terms and conditions
of this Warrant, the Company represents and warrants that (i) the Company is
duly organized under the laws of the State of Delaware and (ii) the issuance of
this Warrant has been duly authorized by all necessary corporate action of the
Company and does not conflict with the terms any of the bylaws, articles of
incorporation or any material agreements of the Company.
10. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
11. No Stockholder Rights. Prior to exercise of this Warrant, the
Holder shall not be entitled to any rights of a stockholder with respect to the
shares of Common Stock issuable on the exercise hereof, including, without
limitation, the right to vote such shares of Common Stock, receive dividends or
other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such Holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company. However,
nothing in this Section 11 shall limit the right of the Holder to be provided
the Notices expressly required under this Warrant.
12. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the Holder
and their respective successors and assigns.
13. Amendments and Waivers. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder. Any waiver or amendment effected
in accordance with this Section 14 shall be binding upon each Holder of any
shares of Common Stock purchased under this Warrant at the time outstanding
(including securities into which such shares have been converted), each future
holder of all such Shares, and the Company.
14. Notices. All notices required under this Warrant and shall be
deemed to have been given or made for all purposes (i) upon personal delivery,
(ii) upon an automatic machine generated confirmation receipt that the
communication was successfully sent to the applicable number if sent by
facsimile; (iii) one business day after being sent, when sent by professional
overnight courier service, or (iv) five business days after posting when sent by
registered or certified mail. Notices to the Company shall be sent to the
principal corporate office of the Company (or at such other place as the Company
shall notify the Holder hereof in writing). Notices to the Holder shall be sent
to the address of the Holder on the books of the Company (or at such other place
as the Holder shall notify the Company hereof in writing).
15. Attorneys' Fees. If any action of law or equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which it may be entitled.
16. Captions. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
17. Governing Law. This Warrant shall be governed by the laws of the
State of Delaware as applied to agreements among Delaware residents made and to
be performed entirely within the State of Delaware, and without reference to any
of its conflict of laws principles.
IN WITNESS WHEREOF, the Company caused this Warrant to be
executed by an officer thereunto duly authorized.
XXX.XXX, INC.
By:/s/ Xxxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxxx
-----------------------
General Counsel
Address:
Fax Number:
NOTICE OF EXERCISE
To:
The undersigned hereby elects to:
Purchase _________________ shares of Common Stock of
_____________, pursuant to the terms of the attached
Warrant and payment of the Exercise Price per share
required under such Warrant accompanies this notice;
The undersigned hereby represents and warrants that the
undersigned is acquiring such shares for its own account for investment purposes
only, and not for resale or with a view to distribution of such shares or any
part thereof.
WARRANTHOLDER:
-----------------------------------------
By:
[NAME]
Address:
Date:
Name in which shares should be registered:
