THE SECURITIES OFFERED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER (THE "1933 ACT"), AND MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES (AS DEFINED IN REGULATION S OF THE 1993 ACT) OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S.PERSONS (AS DEFINED IN REGULATION S OF THE 1993 ACT)
EXCEPT AS PURSUANT TO REGISTRATION UNDER OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT.
Warrant to Purchase 50,000 Shares
WARRANT
to Purchase Common Stock of
XXXXX XXXXXX MULTIMEDIA COMPANY, INC.
THIS CERTIFIES THAT, for value received, ____________________
("Holder") is entitled to purchase from XXXXX XXXXXX MULTIMEDIA COMPANY, INC., a
corporation organized and existing under the laws of the State of New York
(hereinafter called the "Company"), in whole or in part, at a purchase price per
share equal to the Warrant Purchase Price (as defined herein) from time to time
in effect, at any time from and after the date hereof to and including October
31, 1999 (the "Final Exercise Date"), 50,000 shares of the Company's Common
Stock, par value $.001 per share, subject, however, to the provisions and upon
the terms and conditions hereinafter set forth.
This Warrant is being purchased pursuant to and in connection with the
Offshore Securities Subscription Agreement between the Warrant Holder and the
Company (the "Subscription Agreement"). The Warrant Holder acknowledges that it
takes this Warrant subject to the representations and warranties contained in
the Subscription Agreement, including but not limited to the Warrant Holder's
status as a Non-U.S. Person as defined in Regulation S and that the Company is
relying upon the truth and accuracy of such representations and warranties
contained in the Subscription Agreement.
Certain terms used in this Warrant are defined in Section 5.
The number of shares of Common Stock purchasable hereunder, and the
Warrant Purchase Price payable therefor, are subject to adjustment as
hereinafter set forth.
This Warrant is exercisable at any time after the date hereof to and
including October 31, 1999.
1. (a) Exercise of Warrant. The rights represented by this Warrant may
be exercised by the holder hereof, in whole or in part, by delivering to the
office of the Company at 00 Xxxx 00xx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
10010 (or such other office or agency of the Company as it may designate by
notice in writing to the holder hereof),
(i) this Warrant, together with a properly completed
Subscription Form in the form attached hereto, and
(ii) a certified check or bank draft in the amount of the
aggregate Warrant Purchase Price for each share of Common Stock being
purchased.
The Company agrees that the shares so purchased shall be deemed to be issued to
the Holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been delivered to the Company and payment
made for such shares as aforesaid. Certificates for the shares so purchased
shall be delivered to the Holder hereof within a reasonable time, not exceeding
ten Business Days (to the extent it can legally do so), after the rights
represented by this Warrant shall have been so exercised, and, unless this
Warrant has expired, a new Warrant representing the number of shares of Common
Stock, if any, with respect to which this Warrant shall not then have been
exercised, in all other respects identical with this Warrant, shall also be
issued and delivered to the Holder hereof within such time, or, at the request
of such Holder, appropriate notation may be made on this Warrant and the same
returned to such holder.
(b) Transfer Restriction Legend. Each certificate for Warrant Shares
initially issued upon exercise of this Warrant, unless at the time of exercise
such Warrant Shares are registered under the Securities Act, shall bear a legend
in substantially the same form as the legend set forth on the first page of this
Warrant and such other legend(s) as may be required to comply with applicable
state securities laws.
Any certificate issued at any time in exchange or substitution
for any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution under a registration statement of the
securities represented thereby) shall also bear such legend unless in the
opinion of counsel reasonably satisfactory to the Company the securities
represented thereby need no longer be subject to the restrictions contained in
this Warrant. The provisions of paragraph 2 shall be binding upon all subsequent
holders of certificates bearing the above legend.
2. Warrants and Warrant Shares Not Registered. The Holder, by
acceptance thereof, represents and acknowledges that this Warrant and the
Warrant Shares which may be purchased upon exercise of this Warrant are not
being registered under the Securities Act and are being offered and sold to it
in reliance on specific exemptions from the registration requirements of Federal
and State securities laws of the Untied States, and that the Company is relying
upon the truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of Holder set forth in the Subscription
Agreement, in order to determine the applicability of such exemptions and the
suitability of Holder and any purchaser from Holder to acquire the Securities.
Upon the exercise of this Warrant, the Company shall impose a "stop
transfer" instruction with respect to the certificates representing the Common
Stock until the end of the holding period as required by Regulation S. Nothing
in this Section 2, however, shall affect in any way the Warrant Holder's or such
nominee's obligations and agreement to comply with all applicable securities
laws upon resale of the Common Stock issued upon the exercise of the Warrant.
3. Special Agreements of the Company. The Company covenants and agrees
that:
(a) Character of Warrant Shares. All shares which may be issued upon
the exercise of the rights represented by this Warrant, upon issuance, will be
duly authorized, validly issued, fully paid and nonassessable.
(b) Will Reserve Shares. During the period within which the rights
represented by this Warrant may be exercised, the Company will have at all times
authorized, and reserved for the purpose of issue or transfer upon exercise of
the rights evidenced by this Warrant, a sufficient number of shares of its
Common Stock of the appropriate class to provide for the exercise of the rights
represented by this Warrant.
4. Adjustments.
(a) Adjustment of the Warrant Purchase Price for Stock Splits, Reverse
Stock Splits, and Stock Dividends. In the event that the outstanding shares of
Common Stock shall be subdivided (split) or combined (reverse split) by
reclassification or otherwise, or in the event of any dividend payable on the
Common Stock in shares of Common Stock, the applicable Warrant Purchase Price
and the number of Warrant Shares available for purchase in effect immediately
prior to such subdivision, combination or dividend shall be proportionately
adjusted.
(b) Adjustment for Capital Reorganizations. If at any time there shall
be a capital reorganization of the Company's Common Stock, or a merger or
consolidation of the Company with or into another corporation, or the sale of
the Company's properties and assets as, or substantially as, an entirety to any
other person or entity, then, as part of such reorganization, merger,
consolidation or sale, lawful provision shall be made so that Holder shall
thereafter be entitled to receive, on exercise of this Warrant during the period
specified in this Warrant and on payment of the Warrant Purchase Price then in
effect, the number of shares of stock or other securities or property of the
Company, or of the successor corporation resulting from such merger or
consolidation, to which a holder of the Common Stock deliverable on exercise of
this Warrant would have been entitled on such capital reorganization, merger or
consolidation, or sale if this Warrant had been exercised immediately before
that capital reorganization, merger, consolidation or sale. In any such case,
appropriate adjustment, as determined in good faith by the Board of Directors of
the Company, shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Warrant Holder after the
reorganization, merger, consolidation or sale to the end that provisions of this
Warrant (including adjustment of the Warrant Purchase Price then in effect and
the number of Warrant Shares purchasable on exercise of this Warrant, but
without any change in the aggregate Warrant Purchase Price) shall be applicable
after that event, as near as is reasonably possible, in relation to any shares
or other securities or property deliverable after that event upon exercise of
this Warrant.
(c) Adjustment For Dissolution In the case of a voluntary or
involuntary dissolution, liquidation or winding up of the Company or any sale or
conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety, in connection with which the Company is
dissolved, Holder shall have the right thereafter (after the commencement of and
until the expiration of the right of exercise of such Warrant) to receive upon
the exercise thereof, for the same aggregate Warrant Purchase Price payable
hereunder immediately prior to such event, the kind and amount of shares of
stock or other securities or property receivable upon such voluntary or
involuntary dissolution, liquidation or winding up of the Company or the
dissolution following any sale or other transfer, by Holder of the number of
shares of Common Stock of the Company obtainable upon exercise of such Warrant
immediately prior to such event.
(d) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 4, the Company, at its
expense, shall compute such adjustment or
readjustment in accordance with the terms hereof and furnish to the Warrant
Holder a certificate setting forth such adjustment or readjustment and showing
in reasonable detail the facts upon which such adjustment or readjustment is
based. The Company shall, upon the written request of Xxxxxx, at any time,
furnish or cause to be furnished to Holder a like certificate setting forth (i)
such adjustments and readjustments; (ii) the Warrant Purchase Price in effect at
the time; and (iii) the number of Warrant Shares that at the time would be
received upon the exercise of this Warrant.
(e) Notice of Record Date. In the event of any taking by the Company of
a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than ordinary cash dividends) or other distribution, the Company shall use its
reasonable efforts to mail to the Warrant Holder, at least ten (10) days prior
to the date specified for the taking of a record, a notice specifying the date
on which any such record is to be taken for the purpose of such dividend or
distribution.
5. Definitions. The terms defined in this paragraph 5, whenever used in
this Warrant, shall, unless the context otherwise requires, have the respective
meanings hereinafter specified.
"Commission" shall mean the Securities and Exchange
Commission, or any other Federal agency then administering the
Securities Act.
"Common Stock" shall mean and include the Company's
Common Stock, $.001 par value per share.
"Company" shall mean Xxxxx Xxxxxx Multimedia Company,
Inc., a New York corporation, and also includes any successor
thereto with respect to the obligations hereunder, by merger,
consolidation or otherwise.
"Outstanding" when used with reference to Common
Stock shall mean at any date as of which the number of shares
thereof is to be determined, all issued shares of Common Stock
(including, but without duplication, shares deemed issued
pursuant to paragraph 4), except shares then owned or held by
or for the account of the Company.
"Securities Act" shall mean the Securities Act of
1933, or any similar Federal statute, and the rules and
regulations of the Commission, or any other Federal
agency then administering such Securities Act, thereunder, all
as the same shall be in effect at the time.
"Warrant Purchase Price" shall mean the purchase
price per share of Common Stock payable upon exercise of this
Warrant, which shall be the purchase price of One Dollar (US
$1.00) per share, as adjusted from time to time pursuant to
the other provisions hereof providing for adjustments to the
Warrant Purchase Price.
"Warrant" shall mean this Warrant issued by the
Company evidencing the right to purchase an aggregate of
50,000 shares of Common Stock, and all Warrants issued in
exchange, transfer or replacement of any thereof.
"Warrant Shares" shall mean the shares of Common
Stock purchased or purchasable by the holders of Warrants upon
the exercise thereof pursuant to paragraph 1.
6. Exchange, Replacement and Assignability. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, of a bond
of indemnity or other security satisfactory to the Company, or, in the case of
any such mutilation, upon surrender or cancellation of this Warrant, the Company
will issue to Holder a new Warrant of like tenor and date, in lieu of this
Warrant, or such new Warrants, representing the right to purchase the number of
shares which may be purchased hereunder.
7. Transfer Books; No Rights as Stockholder; Survival of Rights. The
Company will at no time close its transfer books against the transfer of this
Warrant or any Warrant Shares in any manner which interferes with the timely
exercise of this Warrant. This Warrant shall not entitle Holder to any voting
rights or any rights as a stockholder of the Company. The rights and obligations
of the Company, of Holder and of any holder of Warrant Shares issued upon
exercise of this Warrant pursuant to the terms of this Warrant shall survive the
exercise of this Warrant.
8. Governing Law; Amendments and Waivers; Headings. The validity,
interpretation and performance of this Warrant and each of its terms and
provisions shall be governed by the laws of the State of New York. No provision
of this Warrant may be changed, waived, discharged or terminated except by an
instrument in
writing signed by the party against which enforcement of the same is sought. The
headings in this Warrant are for purposes of reference only and shall not affect
the meaning or construction of any of the provisions hereof.
9. Notices. Any notice or other document required or permitted
to be given or delivered to Holder shall be delivered at, or sent by certified
or registered mail to Holder at, the address shown on such holder's Warrant or
to such other address as shall have been furnished to the Company in writing by
Xxxxxx. Any notice or other document required or permitted to be given or
delivered to the Company shall be delivered at, or sent by certified or
registered mail to the principal office of the Company at 00 Xxxx 00xx Xxxxxx -
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other address or addresses as shall
have been furnished to Holder by the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer, and to be dated as of ___________, 1997.
XXXXX XXXXXX MULTIMEDIA
COMPANY, INC.
By: _____________________________
Name:
Title:
ACKNOWLEDGED, AGREED AND ACCEPTED
By:______________________________
Name:
FULL SUBSCRIPTION FORM
To Be Executed by the Registered Holder in Order
to Exercise in Full the Within Warrant
The undersigned hereby exercises the right to purchase the _______
shares of ___ Common Stock covered by the within Warrant at the date of this
subscription and herewith makes payment of the sum of $ ________ representing
the Warrant Purchase Price of $ __________ per share in effect at this date.
Certificates for such shares shall be issued in the name of and delivered to the
undersigned, unless otherwise specified by written instructions, signed by the
undersigned and accompanying this subscription.
Dated: _______________________, 19___.
Signature _____________________________
Address _____________________________
_____________________________
PARTIAL SUBSCRIPTION FORM
To Be Executed by The Registered Holder in Order
to Exercise in Part Only the Within Warrant
The undersigned hereby exercises the right to purchase ____ shares of
the total of _______ shares of ____ Common Stock covered by the within Warrant
at the date of this subscription and herewith makes payment of the sum of $
___________ representing the Warrant Purchase Price of $_________________ per
share in effect at this date. Certificates for such shares and a new Warrant of
like tenor and date for the balance of the shares not subscribed for shall be
issued in the name of and delivered to the undersigned, unless otherwise
specified by written instructions, signed by the undersigned and accompanying
this subscription.
(The following paragraph need be completed only if the Warrant Purchase
Price and number of shares of Common Stock specified in the within Warrant have
been adjusted pursuant to paragraph 4 of the Warrant.)
The shares hereby subscribed for constitute __________ shares of Common
Stock (to the nearest whole share) resulting from adjustment of _______ shares
of the total of ________ shares of Common Stock covered by the within Warrant,
as said shares were constituted at the date of the Warrant, leaving a balance of
________ shares of Common Stock, as constituted at the date of the Warrant, to
be covered by the new Warrant.
Dated: ____________________, 19____.
Signature _____________________________
Address _____________________________
_____________________________
