Exhibit 4.5
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") AND THE TERMS AND CONDITIONS HEREOF. THE HOLDER OF THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF ARE SUBJECT TO THE
RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M., PHILADELPHIA, PENNSYLVANIA TIME, SEPTEMBER 18, 2002.
*********************************
WARRANT
to
PURCHASE COMMON STOCK
of
NATIONAL MEDIA CORPORATION
*********************************
This certifies that, for good and valuable consideration, National Media
Corporation, a Delaware corporation (the "Company"), grants to CoreStates Bank,
N.A. or permitted registered assigns (the "Warrantholder" or "Warrantholders"),
the right to subscribe for and purchase from the Company, at $5.1875 per share
(the "Exercise Price"), from and after the date hereof, and to and including
5:00 P.M. Philadelphia, Pennsylvania time on September 18, 2002 (the "Expiration
Date"), 125,000 shares, as such number of shares may be adjusted from time to
time (the "Warrant Shares"), of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), subject to the provisions and upon the terms and
conditions herein set forth The Exercise Price and the number of Warrant Shares
are subject to adjustment from time to time as provided in Section 6.
SECTION 1. Exercise of Warrant; Limitation on Exercise: Payment of Taxes
1.1 Exercise of Warrant.
(a) The Warrantholder may exercise this Warrant, at any time and from
time to time after the date hereof, in whole or in part, by presentation and
surrender of this Warrant to the Company at its principal executive offices with
the Subscription Form annexed hereto duly executed and accompanied by cash
payment of the full Exercise Price for each Warrant Share to be purchased
against the Exercise Price as set forth in Section 1.3 hereof.
(b) Upon receipt of this Warrant, with the Subscription Form duly
executed and accompanied by payment of the aggregate Exercise Price for the
Warrant Shares for which this Warrant is then being exercised, the Company shall
cause to be issued certificates for the total number of whole shares of Common
Stock for which this Warrant is being exercised (adjusted to reflect the effect
of the antidilution provisions contained in Section 6 hereof, if any, and as
provided in Sections 5 and 7.8 hereof) in such denominations as are requested
for delivery to the Warrantholder, and the Company shall thereupon cause its
transfer agent to deliver such certificates to the Warrantholder. The stock
certificates so delivered shall be in such denominations as may be specified by
the Warrantholder and shall be issued in the name of the Warrantholder or, if
permitted by Section 5 and in accordance with the provisions thereof, such other
name as shall be designated in the Subscription Form. The Warrantholder shall
be deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Common
Stock shall not then be actually delivered to the Warrantholder. If at the time
this Warrant is exercised, a registration statement is not in effect to register
under the Securities Act of 1933, the resale of the Warrant Shares issuable upon
exercise of this Warrant, the Company may require the Warrantholder to make such
customary representations, and may place such customary legends on certificates
representing the Warrant Shares, as may be reasonably required in the opinion of
counsel to the Company to permit the Warrant Shares to be issued without such
registration.
(c) If this Warrant shall have been exercised only in part, the
Company shall, at the time of delivery of the certificates for the Warrant
Shares, deliver to the Warrantholder a replacement Warrant evidencing the rights
to purchase the remaining Warrant Shares, which replacement Warrant shall in all
other respects be identical with this Warrant. No adjustments or payments shall
be made on or in respect of Warrant Shares issuable on the exercise of this
Warrant for any regular cash dividends paid or payable to holders of record of
Common Stock prior to the date as of which the Warrantholder shall be deemed to
be the record holder of such Warrant Shares.
1.2 Limitation on Exercise. If this Warrant is not exercised prior to
5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Saturday, Sunday or a day on which the New York Stock
Exchange is authorized to close or on which the Company is otherwise closed for
business (a "Nonbusiness Day"), this Warrant, or any new Warrant issued
2
pursuant to Section 1.1, shall cease to be exercisable and shall become void and
all rights of the Warrantholder hereunder shall cease.
1.3 Payment of Exercise Price. Payment of the Exercise Price shall be
made to the Company in cash; by certified or official bank check payable in
United States dollars to the order of the Company; or by any combination of the
foregoing.
1.4 Payment of Taxes. The Company shall be required to pay any and all
taxes which may be payable in respect to the issuance and delivery of any
certificates for Warrant Shares, provided that the Company shall not be required
to pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than the initial holder
of this Warrant.
SECTION 2. Reservation and Listing of Shares. Etc.; Registration
All Warrant Shares which are issued upon the exercise of the rights
represented by this Warrant shall, upon issuance and payment of the Exercise
Price, be validly issued, fully paid and nonassessable and free from all taxes,
liens, security interests, charges and other encumbrances with respect to the
issue thereof other than taxes in respect of such issuance. During the period
within which this Warrant may be exercised, the Company shall 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 this
Warrant, and if at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to effect the exercise of this Warrant (and
all other Warrants and securities of the Company convertible into or exercisable
or exchangeable for Common Stock), in addition to such other remedies as shall
be available to a Warrantholder, the Company will take such corporate action as
may, in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purposes. In addition, the Company shall at its expense procure the
listing of the Warrant Shares (or any other issues of capital stock issuable
upon the exercise of this Warrant if such other class of capital stock is then
so listed) which shall be issued upon exercise of this Warrant (subject to
official notice of issuance) as then may be required on all stock exchanges or
interdealer quotation systems on which the Common Stock is then listed and shall
maintain such listing if and so long as any shares of the same class shall be
listed on such stock exchanges or interdealer quotation systems. The Company
shall, from time to time, take all such action as may be required to assure that
the par value per share of the Warrant Shares is at all times equal to or less
than the then effective Exercise Price.
The resale by Warrantholder of the Warrant Shares shall be registered under
the Securities Act of 1933 and applicable state securities laws, as soon a
practicable, and shall be maintained by the Company in effect until the Warrant
has been exercised or has expired.
3
SECTION 3. Exchange, Loss or Destruction of Warrant
If permitted by Section 5 and in accordance with the provisions thereof,
upon surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be cancelled. 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 such
mutilation, upon surrender and cancellation of this Warrant, the Company will
execute and deliver a new Warrant of like tenor. The term "Warrant" as used
herein includes any Warrants issued in substitution or exchange of this Warrant.
SECTION 4. Ownership of Warrant; Certain Rights of Warrantholders
(a) 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 or its agent)
for all purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer as provided in
subsection 1. 1, Section 3 or Section 5.
(b) Nothing contained in this Warrant shall be construed as conferring
upon the Warrantholder or its transferees the right to vote or to receive
dividends or to consent or to receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or of any
other matter, or any rights whatsoever as stockholders of the Company. No
provision of this Warrant, in the absence of affirmative action by the holder
hereof to purchase Warrant Shares, and no mere enumeration herein of the rights
or privileges of the holder hereof, shall give rise to any liability of such
holder for the Exercise Price or as a shareholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
SECTION 5. Split-Up, Combination. Exchange and Transfer of Warrants
(a) Subject to the provisions of Section 5(b), this Warrant may be split
up, combined or exchanged for another Warrant or Warrants containing the same
terms to purchase a like aggregate number of Warrant Shares. If the
Warrantholder desires to split up, combine or exchange this Warrant, he, she or
it shall make such request in writing delivered to the Company and shall
surrender to the Company this Warrant and any other Warrants to be so split up,
combined or exchanged. Upon any such surrender for a split up, combination or
exchange, the Company shall execute and deliver to the person entitled thereto a
Warrant or Warrants, as the case may be, as so requested. The Company shall not
be required to effect any split up, combination or exchange which will result in
the issuance of a warrant entitling the Warrantholder to purchase upon exercise
a fraction of a share of Common Stock or a fractional Warrant. The Company may
require such
4
Warrantholder to pay a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any split up, combination or exchange of
Warrants.
(b) Neither this Warrant nor the Warrant Shares may be transferred except
in accordance with and subject to the provisions of the Securities Act and the
rules and regulations promulgated thereunder. The Company may require the
Warrantholder to make such customary representations, and may place such
customary legends on certificates representing this Warrant, as may be
reasonably required in the opinion of counsel to the Company to permit a
transfer without registration.
SECTION 6. Certain Adjustments
(a) If at any time or from time to time the Company shall (i) take a
record of the holders of the Common Stock for the purpose of entitling them to
receive a dividend payable in, or other distribution of, shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock into a larger number of
shares of Common Stock or (iii) combine the outstanding shares of Common Stock
into a smaller number of shares of Common Stock, then the number of shares of
Common Stock thereafter issuable upon exercise of this Warrant and the Exercise
Price then in effect shall be adjusted so that this Warrant shall be exercisable
for the same number of shares that a record holder of the number of shares of
Common Stock issuable upon exercise of this Warrant immediately prior to the
happening of such event would own or be entitled to receive after the happening
of such event and so that the aggregate Exercise Price payable for the purchase
of all Warrant Shares pursuant to this Warrant shall remain unchanged. Any
adjustments required by this Section 6(a) shall be made whenever and as often as
any specified event requiring an adjustment shall occur. If the Company shall
take a record of the holders of the Common Stock for the purpose of effecting
such distribution, subdivision or combination and shall, thereafter and before
such distribution, subdivision, or combination, legally abandon its plan to pay
or deliver such distribution or effect such subdivision or combination, then
thereafter no adjustment shall be required by reason of the taking of such
record and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(b) If at any time prior to the exercise of this Warrant in full, the
Company shall (i) other than pursuant to the exercise or conversion of a Common
Stock Equivalent (as hereinafter defined) outstanding as of the date hereof or
pursuant to the exercise or conversion of a Common Stock Equivalent with
exercise or conversion price which was at the date of issuance of such Common
Stock Equivalent set at a price equal or greater than market price of the Common
Stock, issue or sell any Common Stock without consideration or for consideration
per share (in cash, property or other assets) less than the current market price
per share on the date of such issuance or sale as determined pursuant to Section
6(d), (ii) issue or sell a Common Stock Equivalent with an exercise or
conversion price which, as of the date of issuance of such Common Stock
Equivalent, is less than the then current market price of the Common Stock or
(iii) fix a record date for the issuance of subscription rights, options or
warrants to all holders of Common Stock entitling them to subscribe for or
purchase Common Stock (or Common Stock Equivalents) at a price (or having an
exercise or conversion price per share) less than the then current market price
of the Common Stock (as
5
determined pursuant to Section 6(d)) on the record date described below, the
Exercise Price shall be adjusted so that the Exercise Price shall equal the
price determined by multiplying the Exercise Price in effect immediately prior
to the date of such sale or issuance (which date in the event of a distribution
to stockholders shall be deemed to be the record date set by the Company to
determine stockholders entitled to participate in such distribution) by a
fraction, the numerator of which shall be (i) the number of shares of Common
Stock outstanding on the date of such sale or issuance, plus (ii) the number of
additional shares of Common Stock which the aggregate consideration received by
the Company upon such issuance or sale (plus the aggregate of any additional
amount to be received by the Company upon the exercise of such subscription
rights, options or warrants) would purchase at such current market price per
share of the Common Stock and the denominator of which shall be (i) the number
of shares of Common Stock outstanding on the date of such issuance or sale, plus
(H) the number of additional shares of Common Stock offered for subscription or
purchase (or into which the Common Stock Equivalents so offered are exercisable
or convertible). Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to this Section 6(b), the number of Warrant Shares
issuable upon exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Warrant Shares issuable upon exercise of this Warrant
by the Exercise Price in effect on the date of such adjustment and dividing the
product so obtained by the Exercise Price, as adjusted. Any adjustments
required by this Section 6(b) shall be made immediately after such issuance or
sale or record date, as the case may be. No duplicative adjustment shall be
made in the event of a Common Stock Equivalent requiring an adjustment hereunder
and the subsequent exercise or conversion of such Common Stock Equivalents. To
the extent that shares of Common Stock (or Common Stock Equivalents) are not
delivered in connection with the exercise of such subscription rights, options
or warrants, or as result of the expiration or termination thereof, the Exercise
Price shall be readjusted to the Exercise Price which would then be in effect
had the adjustments made upon the issuance of such rights, options or warrants
been made upon the basis of delivery of only the number of shares of Common
Stock (or Common Stock Equivalents) actually delivered. In the case of an issue
of additional Common Stock or Common Stock Equivalents for cash, the
consideration received by the Company therefor, before deducting therefrom any
reasonable discount or commission or other reasonable expenses allowed, paid or
incurred by the Company for underwriting of, or otherwise in connection with,
the issuance thereof, shall be deemed to be the amount received by the Company
therefor. In the case of an issue of additional Common Stock or Common Stock
Equivalents for consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair value thereof as
reasonably determined by the Company's Board of Directors. No adjustments to
the Exercise Price or the number of Warrant Shares issuable upon exercise of
this Warrant shall be made pursuant to this Section 6(b) for (x) any transaction
for which adjustment thereto is required to be made pursuant to Section 6(a)
hereof, (y) the exercise of Warrants or (2) the conversion, exchange or exercise
of any Common Stock Equivalents.
(c) For purposes of this Section 6, "Common Stock Equivalents" shall mean
any options, warrants or other securities or rights convertible into, or
exercisable or exchangeable for, shares of Common Stock.
6
(d) For the purpose of any computation under this Section 6, the current
market price per share of Common Stock at any date shall be deemed to be (i) the
closing sale price for the shares of Common Stock as reported on the New York
Stock Exchange for the trading day immediately preceding such date, or (ii) if
the New York Stock Exchange is not the principal trading market for the shares
of Common Stock, the closing sale prices on the principal trading market for the
Common Stock for the trading day immediately preceding such date, or (iii) if
market value cannot be calculated as of such date on any of the foregoing bases,
market price shall be the average fair market value as reasonably determined by
an investment banking firm selected by the Company and reasonably acceptable to
the holder, with the costs of the appraisal to be borne by the Company. The
manner of determining the market price of the Common Stock set forth in the
foregoing definition shall apply with respect to any other security in respect
of which a determination as to market value must be made hereunder. The term
"issue" shall include the sale other disposition of shares held by or on account
of the Company or in the treasury of the Company but until so sold or otherwise
disposed of such shares shall not be deemed outstanding.
(e) In the event that at any time, as a result of any adjustment made
pursuant to Section 6, the Warrantholder thereafter shall become entitled to
receive any shares of the Company other than Common Stock, thereafter the number
of such other shares so receivable upon exercise of any Warrant shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Stock contained in
Section 6.
(f) Liquidating Dividends, Etc. If the Company at any time while Warrants
are outstanding and unexpired makes a distribution of its assets (or rights to
acquire its assets) to the holders of its Common Stock as a dividend in
liquidation or by way of return of capital or stock repurchase or other than as
a dividend payable out of earnings or surplus legally available for dividends
under applicable law or any distribution to such holders made in respect of the
sale of all or substantially all of the Company's assets (other than under the
circumstances provided for in the foregoing subsections), the holder of this
Warrant shall be entitled to receive upon the exercise hereof, in addition to
the shares of Common Stock receivable upon such exercise, and without payment of
any consideration other than the Exercise Price, an amount in cash equal to the
value of such distribution per share of Common Stock multiplied by the number of
shares of Common Stock which, on the record date for such distribution, are
issuable upon exercise of this Warrant (with no further adjustment being made
following any event which causes a subsequent adjustment in the number of shares
of Common Stock issuable upon the exercise hereof), and an appropriate provision
therefor should be made as part of any such distribution. The value of a
distribution which is paid in other than cash shall be determined in good faith
by the Board of Directors.
(g) No Impairment. The Company will not, by amendment of its Certificate
of Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Company, but will
at all times in good faith assist in the carrying out of all the provisions of
this
7
Warrant and in the taking of all such action as may reasonably be requested by
the holder of this Warrant in order to protect the exercise privilege of the
holder of this Warrant against dilution or other impairment, consistent with the
tenor and purpose of this Warrant. Without limiting the generality of the
foregoing, the Company (i) will not increase the par value of any shares of
Common stock receivable upon the exercise of this Warrant above the Exercise
Price then in effect, and (ii) will take all such actions as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of this Warrant.
(h) Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Exercise Price pursuant to this Section 6, the Company,
at its expense, shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to the Warrantholder a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Company
shall, upon the written request at any time of the Warrantholder, furnish or
cause to be furnished to such holder a like certificate setting forth (i) such
adjustment and readjustment, (ii) the Exercise Price at the time in effect, and
(iii) the number of shares of Common Stock and the amount, if any, of other
property which at the time would be received upon the exercise of this Warrant.
(i) Consolidation, Merger or Sale. In case of any consolidation of the
Company with, or merger of the Company into any other corporation, or in case of
any sale of conveyance of all or substantially all of the assets of the Company
other than in connection with a plan of complete liquidation of the Company at
any time prior to the exercise of this Warrant, then as a condition of such
consolidation, merger or sale or conveyance, adequate provision will be made
whereby the holder of this Warrant will have the right to acquire and receive
upon exercise of this Warrant in lieu of the shares of Common Stock immediately
theretofore acquirable upon the exercise of this Warrant, such shares of stock,
securities, cash or assets as were issued or payable with respect to or in
exchange for the number of shares of Common Stock immediately thereto acquirable
and receivable upon exercise of this Warrant had such consolidation, merger or
sale or conveyance not taken place. In any such case, the Company will make
appropriate provision to insure that the provisions of this Section 6 hereof
will thereafter be applicable as nearly as may be in relation to any shares of
stock or securities thereafter deliverable upon the exercise of this Warrant.
The Company will not effect any consolidation, merger or sale or conveyance of
the Company whereby the resulting entity is not the Company unless prior to or
upon the consummation thereof, the successor corporation assumes in writing the
Company's obligations under this Warrant, including the obligation to deliver to
the Warrantholder such shares of stock or securities as, in accordance with the
other provisions hereof, the Warrantholder may be entitled to acquire.
(j) Certain Events. If, at any time prior to the exercise of the Warrant,
any event occurs of the type contemplated by the adjustment provisions of this
Section 6 but not expressly provided for by such provisions, the Company's Board
of Directors will make an appropriate adjustment in the Exercise Price and the
number of shares of Common Stock acquirable upon exercise of this Warrant so
that the rights of the holder shall be neither enhanced nor diminished by such
event.
8
(k) Other Notices. In case at any time:
(i) the Company shall declare any dividend upon the Common Stock
payable in shares of any class or make any other distribution (other than
dividends or distributions payable in cash out of retained earnings consistent
with the Company's past practices with respect to declaring dividends and making
distributions) to the holders of the Common Stock;
(ii) the Company shall offer for subscription pro rata to the holders
of the Common Stock any additional shares of stock of any class or other rights;
(iii) there shall be any capital reorganization of the Company, or
reclassification of the Common Stock, or consolidation or merger of the Company
with or into, or sale of all or substantially all of its assets to, another
corporation or entity; or
(iv) there shall be voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
then, in such case, the Company shall give to the holder of this Warrant (a)
notice of the date on which the books of the Company shall close or a record
shall be taken for determining the holders of Common Stock entitled to receive
any such dividend, distribution, or subscription rights or for determining the
holders of Common Stock entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up and (b) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, notice of
the date (or, if not then known, a reasonable estimate thereof by the Company)
when the same shall take place. Such notice shall also specify the date on
which the holders of Common Stock shall be entitled to receive such dividend,
distribution, or subscription rights or to exchange their Common Stock for stock
or other securities or property deliverable upon such reorganization,
reclassification, consolidation, merger, sale dissolution, liquidation, or
winding-up, as the case may be. Such notice shall be given at least 30 days
prior to the record date or the date on which the Company's books are closed in
respect thereto.
SECTION 7. Miscellaneous.
7.1 Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the Warrantholder with respect to this Warrant and
Warrant Shares.
7.2 Binding Effects; Benefits. This Warrant shall inure to the benefit of
and shall be binding upon the Company and the Warrantholder and their respective
heirs, legal representatives, successors and assigns, including any entity
succeeding to the Company by merger, consolidation or acquisitions of all or
substantially all of the Company's assets. Nothing in this Warrant, expressed
or implied, is intended to or shall confer on any person other than the Company,
the Warrantholders and holders of Warrant Shares, or their respective heirs,
legal representatives, successors or assigns,
9
any rights, remedies, obligations or liabilities under or by reason of this
Warrant or the Warrant Shares.
7.3 Amendments and Waivers. This Warrant may not be modified or amended
except by an instrument in writing signed by the Company and the Warrantholder.
The Company and the Warrantholder may, by an instrument in writing, waive
compliance by the other party with any term or provision of this Warrant on the
part of such other party hereto to be performed or complied with. The waiver by
any such party of a breach of any term or provision of this Warrant shall not be
construed as a waiver of any subsequent breach.
7.4 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.
7.5 Further Assurances. Each of the Company and the Warrantholder shall
do and perform all such further acts and things and execute and deliver all such
other certificates, instruments and/or documents (including without limitation,
such proxies and/or powers of attorney as may be necessary or appropriate) as
any party hereto may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this Warrant.
7.6 Notices. All demands, requests, notices and other communications
required or permitted to be given under this Warrant shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
United States certified or registered first class mail, postage prepaid, to the
parties hereto at the following addresses or at such other address as any party
hereto shall hereafter specify by notice to the other party hereto:
(a) if to the Company, addressed to:
National Media Corporation
Suite 1100, 0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
(b) if to Warrantholder, address to:
CoreStates Bank, N.A.
The Xxxxxxx Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
10
Except as otherwise provided herein, all such demands, requests, notices
and other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third business day after the mailing
thereof.
7.7 Separability. 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 any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with Section 1.1 (a)(ii)) of a share of such stock as of the date of such
exercise.
7.9 Rights of the Holder. The Warrantholder shall not, solely by virtue
of this Warrant, be entitled to any rights of a stockholder of the Company,
either at law or in equity.
7.10 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
contracts made and performed in Delaware.
7.11 Indemnification and Contribution. In connection with any inclusion by
the Company of the Warrant Shares in a registration statement under the
Securities Act ("Registration Statement") for the purpose of registering the
resale by the Warrantholder of the Warrant Shares (for the purpose, the
"Registrable Securities"), the Company and the Warrantholder agree as follows:
a. To the extent permitted by law, the Company will indemnify, hold
harmless and defend (i) the Warrantholder and (ii) the directors, officers,
partners, members, employees, agents and each person who controls the
Warrantholder within the meaning of Section 15 of the Securities Act or Section
20 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), if
any, (each an "Indemnified Person"), against any joint or several losses,
claims, damages, liabilities or expenses, including without limitation,
reasonable attorney's fees and expenses (collectively, together with actions,
proceedings or inquiries by any regulatory or self-regulatory organization,
whether commenced or threatened, in respect thereof, "Claims") to which any of
them may become subject insofar as such Claims arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact in a
Registration Statement or the omission or alleged omission to state therein a
material fact required to be stated or necessary to make the statements therein
not misleading, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus if used prior to the
effective date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files
11
any amendment thereof or supplement thereto with the United States Securities
Exchange Commission ("SEC")) or the omission or alleged omission to state
therein any material fact necessary to make the statements made therein, in
light of the circumstances under which the statements therein were made, not
misleading, or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any other applicable securities law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth below, the
Company shall reimburse the Warrantholder and each other Indemnified Person,
promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses are incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained herein: (i) shall not apply to a Claim arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished to the Company by such Indemnified Person for use in the Registration
Statement or any such amendment thereof or supplement thereto; (ii) shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld; and (iii) with respect to any preliminary prospectus,
shall not inure to the benefit of any Indemnified Person if the untrue statement
or omission of material fact contained in the preliminary prospectus was
corrected on a timely basis in the prospectus, as then amended or supplemented,
and the Indemnified Person was promptly advised in writing not to use the
incorrect prospectus prior to the use giving rise to a Violation and such
Indemnified person, notwithstanding such advise, used it. The indemnity
provided hereunder shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person, and shall survive
the exercise, expiration or termination of this Warrant.
b. The Warrantholder agrees to indemnify, hold harmless and defend,
to the same extent and in the same manner set forth in Subsection (a) above, the
Company, each of its directors, each of its officers, its employees, agents and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, and any other
stockholder selling securities pursuant to the Registration Statement or any of
its directors or officers or any person who controls such stockholder or
underwriter within the meaning of the Securities Act or the Exchange Act
(collectively and together with an Indemnified Person, and "Indemnified Party"),
against any Claim to which any of them may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as such Claim arises out of or is
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and conformity with information
furnished to the Company by such Investor for use in connection with such
Registration Statement; and, subject to the limitations set forth below, the
Warrantholder will reimburse any legal or other expenses (promptly as such
expenses are incurred and are due and payable) reasonably incurred by them in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained herein shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Warrantholder, which consent shall not be unreasonably withheld;
provided, further,
12
however, that the Warrantholder shall be liable under this Agreement for only
that amount as does not exceed the net proceeds actually received by the
Warrantholder as a result of the sale of the Registrable Securities pursuant to
such Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified
Party. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Subsection (a) with respect to any
preliminary prospectus shall not inure to the benefit of any Indemnified Party
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, and the Indemnified Party failed to utilize such
corrected prospectus. The indemnity provided hereunder shall survive the
exercise, expiration or termination of this Warrant.
c. Promptly after receipt by an Indemnified Person or Indemnified
Party of notice of the commencement of any action (including any governmental
action), such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to made against any indemnifying party, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that such
indemnifying party shall not be entitled to assume such defense if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
conflicts of interest between such Indemnified Person or Indemnified Party and
any other party represented by such counsel in such proceeding or the actual or
potential defendants in, or targets of, any such action include both the
Indemnified Person or the Indemnified Party and the indemnifying party and any
such Indemnified Person or Indemnified Party reasonably determines that there
may be legal defenses available to such Indemnified person or Indemnified Party
which are different from or in addition to those available to such indemnifying
party. The indemnifying party shall pay for only one separate legal counsel for
the Indemnified Persons or the Indemnified Parties, as applicable, and such
legal counsel shall be selected by the Warrantholder or the Company, as
applicable. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified Person or
Indemnified Party, except to the extent that the indemnifying party is actually
prejudiced in its ability to defend such action. The indemnification required
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as such expense, loss, damage or liability is
incurred and is due and payable.
d. To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
hereunder to the fullest extent permitted by law; provided, however, that (i) no
contribution shall be made under circumstances where the maker would not have
been liable for indemnification under the fault standards set forth above, (ii)
no person guilty of fraudulent misrepresentation (within the meaning of Section
12(f) of the Securities
13
Act) shall be entitled to contribution from the Warrantholder if the
Warrantholder was not guilty of such fraudulent misrepresentation, and (iii)
contribution (together with any indemnification or other obligations under this
Agreement) by the Warrantholder shall be limited in amount to the net amount of
proceeds received from the sale of such Registrable Securities.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
NATIONAL MEDIA CORPORATION
By: ___________________________________
Name:
Title:
Dated:
14
SUBSCRIPTION FORM
(To be executed upon exercise of Warrant
pursuant to Section 1.1(a))
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
shares of Common Stock, as provided for therein, and delivers payment in full of
the Exercise Price in the amount of $ as follows:
Cash $________
Certified or Official bank check $________
Please issue a certificate or certificates for such Common Stock in the
name of, and pay any cash for any fractional share to:
Name: __________________________________
Address: __________________________________
__________________________________
__________________________________
Social Security No.:_________________________
(Please Print Name, Address and
Social Security No.)
Signature:_________________________________
NOTE: The above signature should
correspond exactly with the name on the
first page of this Warrant Certificate
or with the name of the assignee
appearing in the assignment form
delivered herewith.
And if said number of shares shall not be all the shares purchasable under
the within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder rounded up to the next higher number of shares.
15
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
all the rights of the undersigned under the within Warrant, with respect to the
number of shares of Common Stock covered thereby set forth hereinbelow, to:
Name of Assignee Address No. of Shares
---------------- ------- -------------
, and hereby irrevocably constitutes and appoints as agent and attorney-in-fact
to transfer said Warrant on the books of the within-named corporation, with full
power of substitution in the premises.
Dated: _____________, _____,
In the presence of
__________________________
Name: ___________________________
Signature:__________________
Title of Signing Officer or Agent (if any):
Address:_________________________
_________________________
_________________________
Note: The above signature should
correspond exactly with the name on the face
of the within Warrant.
[This assignment is conditioned upon and subject to the terms of the within
Warrant regarding assignment, conveyance and transfer]
16
