EXHIBIT 4.5
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 Xxxx
X. Xxxxxxx, his successors and permitted assigns (the "Warrantholder"), the
right to subscribe for and purchase from the Company Fifty Thousand (50,000)
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 purchase price per share equal to 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. References herein to "Warrants" or "Warrant"
shall mean this Warrant.
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, as adjusted hereunder, and (2) 82.5% of the average of the daily
Closing Price per share of Common Stock for the 30 consecutive trading days
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
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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 holders of a majority in interest of the Warrant Shares issuable upon
the exercise of the Investor Warrants disagree with the Board's determination
of fair market value for the purposes of the Investor Warrants, the fair
market value for the purposes of the Warrant shall be the fair market value
determined for the purposes of the Investor Warrants. 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.
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 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.
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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 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 substantially the following form:
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
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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.
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
5
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 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
6
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 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 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
7
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,
the Investor Warrants, the Affiliate Warrants 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, the Investor Warrants, Affiliate Warrants 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 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
8
upon conversion of shares of the Company's Series B Convertible Preferred
Stock, par value $.001 per share (the "Series B Preferred Stock"), (D) shares
of Common Stock issued upon exercise of the Investor Warrants, including any
increase in the number of shares of Common Stock issuable under such Investor
Warrants as a result of the conditional annual increase provision included
therein, (E) shares of Common Stock issued upon conversion of shares of the
Company's Series C Convertible Preferred Stock, par value $.001 per share
(the "Series C Preferred Stock"), (F) shares of Common Stock issued upon
exercise of the Affiliate Warrants 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 (h).
(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 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
9
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) 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.
(g) 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.
(h) 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, 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 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.
(i) 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.
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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.
(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.
(d) At the Put Closing, the Warrantholder shall deliver
to the Company the certificate or certificates representing the
Warrantholder's Warrant
11
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,
dissolution, 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, 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.
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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
consolidation 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, employees, partners or members) 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 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.
13
"CHANGE OF CONTROL REPURCHASE PRICE" means (i) if any Investor
Warrants are then outstanding, an amount in cash, on a per Warrant Share
basis, equal to the "Change of Control Repurchase Price" (on a per Investor
Warrant Share basis) for the Investor Warrants, or (ii) if no Investor
Warrants are then outstanding, 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, 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; provided
that if the holders of a majority in interest of the Investor Warrant Shares
disagree with the Board of Director's determination of fair market value for
purposes of the Investor Warrants, the fair market value for purposes of this
Warrant shall be the same as the fair market value determined for purposes of
the Investor Warrants.
"EXERCISE FORM" means an Exercise Form in the form annexed hereto
as Exhibit A.
14
"EXPIRATION DATE" has the meaning specified on the cover of this
Warrant.
"INDEPENDENT FINANCIAL EXPERT" means an independent nationally
recognized investment banking firm.
"INVESTMENT AGREEMENT" means the Investment Agreement, dated as of
October 12, 1997, as amended and as hereafter amended, among the Investors
and the Company.
"INVESTORS" means MAC Music LLC, a Delaware limited liability
company, and SK-Palladin Partners, LP, a Delaware limited partnership.
"INVESTOR WARRANTS" mean the warrants issued to the Investors
pursuant to the Investment Agreement.
"INVESTOR WARRANT SHARES" mean the shares of Common Stock issued or
issuable upon exercise of the Investor Warrants.
"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 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.
15
"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 constitutes 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
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.
16
(b) if to the Warrantholder, addressed to:
Xxxx X. Xxxxxxx
0000 Xxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
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)
