EXHIBIT 10.30
FORM OF UNDERWRITERS' WARRANT
THIS WARRANT (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER SECTION 4 OF THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND NEITHER THIS WARRANT NOR ANY SHARES
ACQUIRED UPON EXERCISE OF THIS WARRANT MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THE HOLDER OF THIS WARRANT AGREES FOR THE BENEFIT OF THE ISSUER THAT
(A) SUCH WARRANT MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) IN
ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, OR PURSUANT TO ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL), (b) TO THE ISSUER OR ITS SUBSIDIARIES, (c) OUTSIDE
THE UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (d) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (2) IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THE WARRANT EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE.
No. W-___ Right to Purchase
Common Stock
WARRANT
THIS CERTIFIES THAT, for value received, [name of Underwriter], and its
successors and assigns registered with the undersigned (the "HOLDER"), is
entitled to purchase from VICTORY ENTERTAINMENT CORP., a Florida corporation
(the "COMPANY"), at any time or from time to time during the period specified in
Section 2, as adjusted pursuant to Section 4, __________ [an aggregate of 10% of
shares to be sold in the offering [less 80,000 shares]] fully paid and
nonassessable shares of the Company's Common Stock, par value $.001 per share
(the "COMMON STOCK"), at the Exercise Price (as defined below). The term
"EXERCISE PRICE," as used herein, means 165% of the Initial Public Offering
Price. The term "INITIAL PUBLIC OFFERING PRICE," as used herein, means the price
at which shares of Common Stock are offered and sold to the public in an initial
public offering (the "INITIAL PUBLIC OFFERING") of Common Stock pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "SECURITIES ACT"). The
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term "WARRANT SHARES," as used herein, refers to the Common Stock issued or
issuable hereunder, and the term "AGGREGATE NUMBER," as used herein, refers to
the maximum number of shares of Common Stock issuable hereunder (as such number
may be decreased or increased as more fully set forth herein).
This Warrant ("WARRANT") is subject to the following terms, provisions,
and conditions:
1. MANNER OF EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
(a) GENERAL EXERCISE. Subject to the provisions hereof, this Warrant
may be exercised from time to time following the IPO Closing Date (as defined in
Section 2) by the Holder, in whole or in part (but not as to a fractional
Warrant Share), by the surrender of this Warrant, together with a completed
Exercise Agreement in the form attached hereto as ANNEX A, to the Company during
normal business hours on any Business Day (as defined in Section 5) at the
Company's principal office in Orlando, Florida (or such other office or agency
of the Company as it may designate by notice to the Holder), and either (1) upon
payment to the Company in cash in United States dollars or by check payable in
United States dollars of the Exercise Price, for the Warrant Shares specified in
said Exercise Agreement; or (2) in the event the Holder elects a "cashless"
exercise under Section 1(b), upon receipt of the Exercise Agreement, for the
number of Warrant Shares determined in accordance with Section 1(b). The Warrant
Shares so purchased shall be deemed to be issued to the Holder or its designee
as the record owner of such shares as of the close of business on the date (the
"EXERCISE DATE") on which this Warrant shall have been surrendered, the
completed Exercise Agreement delivered and, if applicable, payment made for such
shares as aforesaid. In the event of a "cashless" exercise under Section 1(b),
the Exercise Date shall be the date used to determine the applicable Current
Market Price (as defined in Section 5). Certificates for the Warrant Shares so
purchased, representing the aggregate number of shares specified in said
Exercise Agreement, shall be delivered to the Holder within a reasonable time,
not exceeding seven business days, after this Warrant shall have been so
exercised. The certificates so delivered shall be in such denominations as may
be requested by the Holder and shall be registered in the name of said Holder or
such other name as shall be designated by the Holder; PROVIDED, in the event
such certificates are registered in a name other than the name of the Holder,
the Company shall have received an opinion of counsel, reasonably satisfactory
to the Company, that the issuance
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of such Warrant Shares is exempt from registration under the Securities Act. If
this Warrant shall have been exercised only in part, then, unless this Warrant
has expired, the Company shall, at its expense, at the time of delivery of said
certificates, deliver to the Holder a new Warrant representing the number of
shares with respect to which this Warrant shall not then have been exercised.
The Company shall pay any and all United States federal and state taxes and
other expenses and charges payable in connection with the preparation, execution
and delivery of share certificates (and any new Warrants) pursuant to this
Section 1 except that, in case such share certificates shall be registered in a
name or names other than the Holder, funds sufficient to pay all transfer taxes
which shall be payable in connection with the execution and delivery of such
share certificates shall be paid by the Holder to the Company at the time of the
delivery of such share certificates by the Company as mentioned above.
(b) CASHLESS EXERCISE. The Holder shall have the right to pay all or a
portion of the Exercise Price by making a "CASHLESS EXERCISE" pursuant to this
Section 1(b), in which case the portion of the Exercise Price to be so paid
shall be paid by reducing the number of shares of Common Stock otherwise
issuable pursuant to the Exercise Agreement by an amount equal to (1) the
Exercise Price to be so paid divided by (2) the Current Market Price (as defined
in Section 5 hereof).
The number of shares of Common Stock to be issued to the Holder as a result of a
Cashless Exercise will therefore be as follows:
(CURRENT MARKET PRICE/SHARE - EXERCISE PRICE/SHARE) X MAXIMUM WARRANT SHARES(1)
-------------------------------------------------------------------------------
Current Market Price/Share
(1) The number of Warrant Shares issuable immediately before the
Cashless Exercise set forth in the Exercise Agreement.
Within three business days of receipt of the Warrant and an Exercise
Agreement specifying a Cashless Exercise, the Company shall provide to the
Holder in writing its determination of the Current Market Price (including the
basis therefor), which shall be determined as of the Exercise Date.
(c) LOCK-UP PERIOD. The Holder agrees that, without the prior written
consent of the Company, the Holder will not, during the period commencing on the
date hereof and ending 365 days after the date of the final prospectus relating
to the Initial Public Offering (the "LOCK-UP PERIOD"), (1) offer,
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pledge, announce the intention to sell, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, this Warrant or any Warrant Shares, or (2) enter into
any swap, option, future, forward or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of this Warrant or any
Warrant Shares, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. In addition, the Holder agrees that, without the prior
written consent of the Company, it will not, during the Lock-Up Period, exercise
any right with respect to the registration of this Warrant or any Warrant
Shares, including under Section 6.
2. PERIOD OF EXERCISE. After the date of consummation of the Initial
Public Offering (the "IPO CLOSING DATE") and before 5:00 p.m. eastern standard
time on the fifth anniversary of the IPO Closing Date, this Warrant is
exercisable at any time or from time to time.
3. CERTAIN AGREEMENTS OF THE COMPANY. The Company hereby covenants and
agrees as follows:
(a) SHARES TO BE FULLY PAID. All Warrant Shares will, upon issuance, be
validly issued, fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issue thereof.
(b) RESERVATION OF SHARES. During the period within which this Warrant
may be exercised, the Company will at all times have authorized, and
reserved for the purpose of issue upon exercise of this Warrant, a
sufficient number of shares of Common Stock to provide for the exercise
of this Warrant. The Company will not take any action which would cause
the Aggregate Number to exceed the total number of shares of Common
Stock or other securities then authorized by the Company's articles of
incorporation and available for the purpose of issue upon such
exercise.
(c ) REGISTRATION. If the issuance of any Warrant Shares required to be
reserved for purposes of exercise of this Warrant requires registration
with or approval of any governmental authority under any United States
federal or state law (other than any registration under the Securities
Act or under applicable state securities or blue sky laws) or listing
on any United States securities exchange,
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before such shares may be issued upon exercise of this Warrant, the
Company will, at its expense, use its best efforts to cause such shares
to be duly registered or approved, or listed on the relevant securities
exchange, as the case may be, at such time, so that such shares may be
issued in accordance with the terms hereof.
4. ADJUSTMENTS. The Exercise Price and the Aggregate Number of shares
of Common Stock issuable upon the exercise of this Warrant (the "EXERCISE RATE")
are subject to adjustment from time to time upon the occurrence of the events
enumerated in this Section 4.
(a) ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock or other capital stock of the Company; or
(2) subdivides, combines or reclassifies its outstanding shares of
Common Stock,
then the Exercise Rate in effect immediately prior to such action shall be
proportionately adjusted so that the Holder may receive the Aggregate Number and
kind of shares of capital stock of the Company which the Holder would have owned
immediately following such action if this Warrant had been exercised immediately
prior to such action and the Exercise Price in effect immediately prior to such
action shall be adjusted to a price determined by multiplying the Exercise Price
in effect immediately prior to such action by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding before giving effect
to such action and the denominator of which shall be the number of shares of
Common Stock and/or such other capital stock outstanding referred to in the
foregoing clause (a)(1) after giving effect to such action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment the Holder of this Warrant upon exercise of it
may receive shares of two or more classes of capital stock of the Company, the
Board of Directors of the Company shall determine the allocation of the adjusted
Exercise Price between the classes of capital stock. After such
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allocation, the exercise privilege and the Exercise Price of each class of
capital stock shall thereafter be subject to adjustment on terms comparable to
those applicable to Common Stock in this Section 4.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) ADJUSTMENT FOR CERTAIN ISSUANCES OF COMMON STOCK. If the Company
issues or sells to any Person shares of its Common Stock or distributes any
rights, options or warrants entitling any Person to purchase shares of Common
Stock, or securities convertible into or exchangeable for Common Stock, in each
case, at a price per share less than the Current Market Value on the record date
for determining entitlements to participate in such issuance, sale or
distribution (the "TIME OF DETERMINATION"), the Exercise Rate shall be adjusted
in accordance with the formula:
E' = E X O + N
-------
O + N X P
-----
M
and the Exercise Price shall be adjusted in accordance with the following
formula:
EP' = EP X E
---
E'
where:
E' = the adjusted Exercise Rate.
E = the Exercise Rate immediately prior to the Time of
Determination for any such issuance, sale or
distribution.
EP' = the adjusted Exercise Price.
EP = the Exercise Price immediately prior to the Time
of Determination for any such issuance, sale or
distribution.
O = the number of Fully Diluted Shares (as defined
below) outstanding immediately prior to the Time of
Determination for any such issuance, sale or
distribution.
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N = the number of additional shares of Common Stock
issued, sold or issuable upon exercise of such
rights, options or warrants.
P = the per share price received and receivable by the
Company in the case of any issuance or sale of
Common Stock or rights, options or warrants
inclusive of the exercise price per share of Common
Stock payable upon exercise of such rights, options
or warrants.
M = the Current Market Value per share of Common Stock
on the Time of Determination for any such issuance,
sale or distribution.
For purposes of this Section 4 the term "FULLY DILUTED SHARES" shall
mean (i) the shares of Common Stock outstanding as of a specified date, and (ii)
the shares of Common Stock into or for which rights, options, warrants or other
securities outstanding as of such date are exercisable or convertible (other
than this Warrant).
The adjustments shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
relevant Time of Determination. Notwithstanding the foregoing, the Exercise Rate
and the Exercise Price shall not be subject to adjustment in connection with (i)
the issuance of any shares of Common Stock upon exercise of any such rights,
options or warrants or conversion or exchange of convertible or exchangeable
securities which have previously been the subject of an adjustment under this
Agreement for which the required adjustment has been made or which were issued
by the Company on or prior to the date of issuance of this Warrant, (ii) any
exercise of this Warrant, (iii) any underwritten public offering of Common Stock
or securities convertible into or exchangeable for Common Stock or (iv) any
issuance of Common Stock or securities convertible or exchangeable for Common
Stock pursuant to Rule 144A of the Securities Act. If at the end of the period
during which any such rights, options or warrants are exercisable or such other
securities are convertible or exchangeable, not all rights, options or warrants
shall have been exercised or such other securities converted or exchanged, this
Warrant shall be immediately readjusted to what it would have been if "N" in
each of the above formulas had been the number of shares actually issued.
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(c) ADJUSTMENT FOR OTHER DISTRIBUTIONS. If the Company distributes to
holders of its Common Stock (i) any evidences of indebtedness of the Company or
any of its subsidiaries, (ii) any assets of the Company or any of its
subsidiaries (whether in cash, property or otherwise), or (iii) any rights,
options or warrants to acquire any of the foregoing or to acquire any other
securities of the Company, the Exercise Rate shall be adjusted in accordance
with the formula:
E' = E X M
-----
M - F
and the Exercise Price shall be decreased (but not increased) in accordance with
the following formula:
EP' = EP X E
---
E'
where:
E' = the adjusted Exercise Rate.
E = the current Exercise Rate on the record date
referred to in this paragraph (c) below.
EP' = the adjusted Exercise Price.
EP = the current Exercise Price on the record date
referred to in this paragraph (c) below.
M = the Current Market Value per share of Common Stock
on the record date referred to in this paragraph (c)
below.
F = the fair market value (as determined in good faith
by the Company's Board of Directors) on the record
date referred to in this paragraph (c) below of the
indebtedness, assets, rights, options or warrants
distributable in respect of one share of Common
Stock.
The adjustments shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive the distribution.
If any adjustment is made pursuant to clause (iii) above of this subsection (c)
as a result of the issuance of rights, options or warrants and at the end of the
period during which any such
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rights, options or warrants are exercisable, not all such rights, options or
warrants shall have been exercised, this Warrant shall be immediately readjusted
as if "F" in the above formula was the fair market value on the record date of
the indebtedness or assets actually distributed upon exercise of such rights,
options or warrants divided by the number of shares of Common Stock outstanding
on the record date.
This subsection does not apply to rights, options or warrants referred
to in subsection (b) of this Section 4.
(d) OTHER CONSIDERATIONS. The following provisions shall be applicable
to the making of adjustments of the Exercise Price and Exercise Rate herein
before provided for in this Section 4:
(i) The sale or other disposition of any issued shares of Common Stock
owned or held by or for the account of the Company shall be deemed an
issuance thereof for the purposes of this Section 4.
(ii) The adjustments required by the preceding paragraphs of this
Section 4 shall be made whenever and as often as any specified event
requiring an adjustment shall occur, except as expressly provided herein.
For the purpose of any adjustment, any specified event shall be deemed to
have occurred at the close of business on the date of its occurrence.
(iii) In computing adjustments under this Section 4 fractional
interests in Common Stock shall be taken into account to the nearest
one-thousandth (.001) of a share and shall be aggregated until they equal
one whole share.
(iv) If the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive any item described in
Sections 4(a) through 4(c) hereof, but abandon its plan to pay or deliver
such item, then 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.
(v) The consideration for any additional shares of Common Stock
issuable pursuant to any options, warrants or other rights to subscribe for
or purchase the same shall be the consideration received or receivable by
the Company for issuing such options, warrants or other rights, plus
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the additional consideration payable to the Company upon the exercise
of such options, warrants or other rights. The consideration for any
additional shares of Common Stock issuable pursuant to the terms of any
convertible or exchangeable securities shall be the consideration received
or receivable by the Company for issuing any options, warrants or other
rights to subscribe for or purchase such convertible or exchangeable
securities, plus the consideration paid or payable to the Company in
respect of the subscription for or purchase of such convertible or
exchangeable securities, plus the additional consideration, if any, payable
to the Company upon the exercise of the right of conversion, exercise or
exchange of such convertible or exchangeable securities. In case of the
issuance at any time of any additional shares of Common Stock or
convertible or exchangeable securities in payment or satisfaction of any
dividend upon any class of stock other than Common Stock, the Company shall
be deemed to have received for such additional shares of Common Stock or
convertible or exchangeable securities a consideration equal to the amount
of such dividend so paid or satisfied.
(vi) Shares of Common Stock, convertible or exchangeable securities or
warrants, rights or options to acquire any of the foregoing shall not be
deemed outstanding for purposes of this Section 4 if held by the Company.
(e) FURTHER ADJUSTMENTS. In case of any capital reorganization, other
than in the cases referred to in Section 4(a), (b) or (c) hereof and other than
any capital reorganization that does not result in any reclassification of the
outstanding shares of Common Stock into shares of other stock or other
securities or property, or the consolidation or merger of the Company with or
into another corporation (other than a merger or consolidation in which the
Company is the continuing corporation and which does not result in any
reclassification of the outstanding shares of Common Stock into shares of other
stock or other securities or property), or the sale of all or substantially all
of the assets of the Company (collectively such actions being hereinafter
referred to as "REORGANIZATIONS"), there shall thereafter be deliverable upon
exercise of this Warrant (in lieu of the number of shares of Common Stock
theretofore deliverable) the number of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock that would
otherwise have been deliverable upon the exercise of this Warrant would have
been entitled upon such Reorganization if this Warrant had been exercised in
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full immediately prior to such Reorganization. In case of any Reorganization,
appropriate adjustment, as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a duly adopted resolution
certified by the Company's Secretary, shall be made in the application of the
provisions herein set forth with respect to the rights and interests of Holder
so that the provisions set forth herein shall thereafter be applicable, as
nearly as possible, in relation to any such shares or other securities or
property thereafter deliverable upon exercise of this Warrant.
The Company shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof the successor corporation (if other
than the Company) resulting from such Reorganization or the corporation or other
entity purchasing such assets shall expressly assume, by a supplemental warrant
or other acknowledgment executed and delivered to the Holder the obligation to
deliver to the Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the Holder may be entitled to
purchase, and the due and punctual performance and observance of each and every
covenant, condition, obligation and liability under this Warrant to be performed
and observed by the Company in the manner prescribed herein.
The foregoing provisions of this Section 4(e)(ii) shall apply to
successive Reorganization transactions.
(f) NO DUPLICATION OF ADJUSTMENTS. The occurrence of a single event
shall not trigger an adjustment of the Exercise Price and Exercise Rate under
more than one paragraph of this Section 4.
(g) MINIMUM ADJUSTMENT OF AGGREGATE NUMBER; EFFECTIVE DATE FOR
ADJUSTMENTS. If the amount of any adjustment of the Aggregate Number required
pursuant to this Section 4 would result in an increase in the number of Warrant
Shares purchasable hereunder which is less than one percent (1%) of the number
of Warrant Shares purchasable hereunder immediately before such adjustment is
otherwise so required to be made, such amount shall be carried forward and
adjustment with respect thereto made at the time of and together with any
subsequent adjustment which, together with such amount and any other amount or
amounts so carried forward, shall result in an increase in the number of Warrant
Shares purchasable hereunder which is at least one percent (1%) of number of
Warrant Shares purchasable hereunder immediately before such adjustment;
PROVIDED that, upon the exercise of this Warrant, all adjustments
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carried forward and not theretofore made up to and including the date of such
exercise shall, with respect to the portion of this Warrant then exercised, be
made.
(h) NO EXERCISE PRICE ADJUSTMENT BELOW PAR VALUE. Anything herein to
the contrary notwithstanding, the Company shall not be required to make any
adjustment of the Exercise Price in the event such adjustment will result in an
Exercise Price below the existing par value of the Company's Common Stock.
(i) NOTICE OF ADJUSTMENT. Upon the occurrence of any event requiring an
adjustment of the Exercise Rate or Exercise Rate, then and in each such case the
Company shall promptly deliver to the Holder an officer's certificate stating
the Exercise Rate and Exercise Price resulting from such adjustment and the
increase or decrease, if any, in the number of shares of Common Stock issuable
upon exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
5. DEFINITIONS. For the purpose of this Warrant, the following terms
shall have the following meanings:
"AFFILIATE": shall mean, with respect to any specified Person, any
other Person directly or indirectly controlling or specified Person,
including, but not limited to, any holder of 10% or more of the voting
securities of any Person. For the purposes of this definition, "control"
when used with respect to any specified Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
A "BUSINESS DAY" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day
on which banking institutions are not required to be open in the State of
New York.
"CAPITAL STOCK": shall mean any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interest in (however designated) capital stock.
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The "CLOSING BID PRICE" for any Security on each Business Day means the
closing price, regular way, on such day on the principal exchange on which
such Security is traded, or if no sale takes place on such day, the average
of the closing bid and asked prices on such day.
"COMMISSION": the United States Securities and Exchange Commission and
any other similar or successor agency of the United States federal
government administering the Securities Act or the Exchange Act.
"CURRENT MARKET VALUE": per share of Common Stock or of any other
security (herein collectively referred to as a "SECURITY") at any date
shall be:
(1) if the Security is not registered under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), the
value of the Security determined as of a date within 30 days preceding
such date by an Independent Financial Expert selected by the Company,
or
(2) if the Security is registered under the Exchange Act,
the average of the daily closing bid prices of such Security
for the 20 consecutive Business Days preceding such date,
but only if such Security shall have been listed on a
national securities exchange or the Nasdaq National Market
or traded through an automated quotation system during such
entire 20 Business Day period.
"INDEPENDENT": any Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect financial
interest in the Company or any of its subsidiaries, or in any affiliate of
the Company or any of its subsidiaries (other than as a result of holding
securities of the Company in trading accounts) and (iii) is not an officer,
employee, promoter, trustee, partner, director or Person performing similar
functions for the Company or any of its subsidiaries or any affiliate of
the Company or any of its subsidiaries.
"INDEPENDENT FINANCIAL EXPERT": a reputable accounting, appraisal or
investment banking firm that is, in the reasonable judgment of the Board of
Directors of the Company, qualified to perform the task for which such firm
has been engaged hereunder, is nationally recognized and disinterested and
Independent with respect to the Company
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and its affiliates and is reasonably acceptable to the Holder.
"PERSON": an individual, corporation, partnership, limited liability
company, trust or trustee thereof, estate or executor thereof,
unincorporated organization or joint venture, court or governmental unit or
any agency or subdivision thereof, or any other legally recognizable
entity.
6. REGISTRATION RIGHTS.
(a) RIGHT TO PARTICIPATE IN REGISTRATIONS. If, following the Lock-Up
Period, the Company proposes to register shares of capital stock (as defined in
Section 5) under the Securities Act, in connection with a public offering for
its own account (other than a registration statement on Form S-8 or Form S-4
under the Securities Act or on any other registration statement which is not
suitable for use to register the Warrant Shares), the Company shall each such
time give notice of such proposed registration to the Holder of this Warrant.
Subject to the terms and provisions of this Section 6, upon the request of the
Holder made within 20 days after the giving of such notice by the Company, the
Company shall use its best efforts to cause all Warrant Shares the Holder shall
have requested to be included in the proposed registration ("REGISTRABLE
SHARES") to be included in such registration to the extent required to permit
the sale or other disposition by such Holder of such Registrable Shares, unless,
in the opinion of counsel to the Company, registration of such Registrable
Shares is not required to transfer such Registrable Shares. Notwithstanding
anything to the contrary contained herein, the Company shall not be required to
register any Registrable Shares if such Registrable Shares, at the time of the
filing of such registration, are covered by or included in any other
registration theretofore filed by the Company under the Securities Act. Any
Registrable Shares registered pursuant to this Section 6(a) shall be included in
such registration on the same terms and conditions as those applicable to the
other shares of capital stock being registered. Notwithstanding anything to the
contrary contained herein, for the purposes of this Section 6, "Registrable
Shares" shall not include Warrant Shares which are eligible for resale under
Rule 144(k) of the Securities Act.
In the event an offering to be conducted pursuant to the proposed
registration is to be an underwritten public offering, the Company shall advise
the Holder as a part of the written notice given pursuant to this Section 6(a),
and the
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registration rights provided in this Section 6(a) shall be subject to the
condition that, if the managing underwriter or underwriters of such offering
conclude that marketing factors require a limitation on the number of securities
to be underwritten, the Company shall include in such registration: (i) first,
all shares of the capital stock the Company proposes to sell; (ii) second, all
shares of capital stock requested to be included in such registration by all
holders who have registration rights EXPRESSLY superior to the rights contained
in this Section 6; and (iii) third, the Warrant Shares requested by the Holder
to be included in such registration and all shares of the capital stock
requested to be included in such registration by any other holders of the
capital stock who are entitled to include shares of the capital stock in such
registration pursuant to written registration rights agreements granted by the
Company on a PARI PASSU basis (the "OTHER SHAREHOLDERS") in excess of the number
of shares of the capital stock the Company under clause (i) and the holders
described under clause (ii) propose to sell which, in the opinion of such
underwriters, can be sold without adversely affecting the anticipated price or
probability of success of such offering (such aggregate number of shares of the
capital stock included in such offering to be allocated pro rata among Holder
and the Other Shareholders on the basis of the number of shares of the capital
stock requested to be included therein by the Holder and each Other
Shareholder).
(b) REGISTRATION PROCEDURES. If and whenever the Company is required
pursuant to Section 6(a) to use its best efforts to cause the Registrable Shares
to be included in the registration of securities of the Company under the
Securities Act, the Company will, as expeditiously as possible:
(i) prepare and file with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (the "REGISTRATION STATEMENT")
covering the Registrable Shares and use its best efforts to cause the
Registration Statement to become effective and to remain effective for so
long as may reasonably be necessary to complete the sale or other
disposition of such Registrable Shares; PROVIDED that the Company shall not
in any event be required to use its best efforts to maintain the
effectiveness of the Registration Statement for a period in excess of 180
days;
(ii) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus contained
therein as may be necessary to
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keep the Registration Statement effective, and comply with the provisions
of the Securities Act, with respect to the sale or other disposition of
such Registrable Shares whenever the Holders thereof shall desire to sell
or otherwise dispose of the same but only to the extent provided in this
Section 6(b); PROVIDED, the Holder, upon receipt from the Company of notice
that an event has occurred which requires a post-effective amendment to the
Registration Statement, a supplement to the prospectus included therein or
a supplemental filing with the Commission to be incorporated by reference
therein, shall promptly discontinue the sale of Registrable Shares until
the Holder receives copies of a supplemental or amended prospectus from the
Company or notice from the Company that the existing prospectus has become
available for such sale, which the Company shall provide as soon as
practicable after such notice of discontinuance; PROVIDED, HOWEVER, in the
event the Company provides such notice of discontinuance to the Holder, the
180 day period referred to in clause (i) above shall be extended for the
period equal to the number of days during which the prospectus, as
supplemented as necessary, was not available to facilitate sales of the
Registrable Shares by the Holder;
(iii) furnish to the Holder such numbers of copies of the Registration
Statement, the prospectus contained therein (including each preliminary
prospectus), and each amendment and supplement to the Registration
Statement and such prospectus, in conformity with the requirements of the
Securities Act, and such other documents, as the Holder may reasonably
request in order to facilitate the sale or other disposition of the
Registrable Shares; and
(iv) use its best efforts to register or qualify such Registrable
Shares for sale under the securities or blue sky laws of such jurisdictions
as the Holder may request, and do any and all other acts and things that
may be necessary under such securities or blue sky laws to enable the
Holder to consummate the sale or other disposition of the Registrable
Shares in such jurisdictions; PROVIDED that the Company shall not in any
event be required to keep any such registration or qualification in
effect after the expiration of the period during which the Company
maintains the effectiveness of the Registration Statement and shall not
for any such purpose be required to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified or to
subject itself to taxation in any such jurisdiction.
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(c) REQUIRED INFORMATION. The Company shall not be required to use its
best efforts to include the Registrable Shares in a proposed registration of its
securities under the Securities Act unless and until (i) the Holder furnishes to
the Company such information regarding the Holder and the Registrable Shares and
the intended method of disposition of such Registrable Shares as the Company
shall reasonably request in order to satisfy the requirements applicable to such
registration, and (ii) in the event the offering to be conducted pursuant to
such registration is to be an underwritten public offering, the Holder agrees to
the terms of an underwriting agreement agreed to between the Company and the
underwriter or underwriters of such offering and executes all documents
reasonably required to effect such offering.
(d) EXPENSES OF REGISTRATION. The Company shall pay or cause to be paid
and shall indemnify and hold harmless the Holder from and against any and all
reasonable costs and expenses incurred in connection with any registration of
Registrable Shares under Section 6(a), including, without limitation, all
federal and state blue sky filing and registration or qualification fees
attributable to such shares and fees (not to exceed $5,000); PROVIDED, HOWEVER
that the Company shall not be required to pay any brokerage and underwriting
discounts and commissions attributable to such shares or the fees and expenses
of any financial, legal or accounting advisors employed by the Holder in
connection with any such registration.
(e) INDEMNIFICATION. In connection with any registration of the
Registrable Shares pursuant to the provisions of this Section 6, the Company
shall indemnify and hold harmless the Holder to the extent that companies
generally indemnify and hold harmless underwriters in connection with public
offerings under the Securities Act, and the Holder shall indemnify and hold
harmless the Company, each director and officer of the Company, and each person
who controls the Company within the meaning of the Securities Act to the extent
that selling shareholders generally indemnify and hold harmless issuers of
securities in connection with public offerings under the Securities Act with
respect to the written information provided by such Holder for use by the
Company in the preparation of the Registration Statement.
(f) TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Shares under this Section 6 may be assigned
to any assignee of Registrable Shares.
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(g) LIMITATIONS ON GRANTING OTHER REGISTRATION RIGHTS. The Company will
not provide or otherwise grant to any officer, director or other party,
registration rights with respect to the Company's securities which would
conflict with the provisions in this Section 6.
7. ISSUE TAX. The issuance of certificates for Warrant Shares upon the
exercise of this Warrant shall be made without charge to the Holder or such
shares for any issuance tax in respect thereof; 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 Holder.
8. AVAILABILITY OF INFORMATION. The Company will cooperate with the
Holder in supplying such information as may be reasonably necessary for the
Holder to complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the availability of an
exemption from the Securities Act, for the sale of this Warrant or any Warrant
Shares. The Company will deliver to the Holder, promptly upon their becoming
available, copies of all financial statements, reports, notices, and proxy
statements sent or made available generally by the Company to its shareholders,
and copies of all regular and periodic reports and all registration statements
and prospectuses filed by the Company with any securities exchange, the
Commission or similar agency.
9. NO RIGHTS OR LIABILITIES AS A SHAREHOLDER. This Warrant shall not
entitle the Holder hereof to any voting rights or other rights as a shareholder
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 the 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.
10. TRANSFER, EXCHANGE, AND REPLACEMENT OF WARRANT.
(a) WARRANT TRANSFERABLE. Subject to Section 10(f), the transfer of
this Warrant and all rights hereunder, in whole or in part, is registrable at
the office or agency of the Company referred to in Section 10(e) by the Holder
in person or by his duly authorized attorney (which may include officers of the
Company), upon surrender of this Warrant properly endorsed together with a
completed Assignment Agreement in the form
-19-
attached hereto as ANNEX B. Each taker and holder of this Warrant, by taking or
holding the same, consents and agrees that this Warrant, when endorsed in blank,
shall be deemed negotiable, and that the holder hereof, when this Warrant shall
have been so endorsed, may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner and holder hereof for any
purpose and as the person entitled to exercise the rights represented by this
Warrant and to the registration of transfer hereof on the books of the Company;
but until due presentment for registration of transfer on such books the Company
may treat the registered holder hereof as the owner and holder hereof for all
purposes, and the Company shall not be affected by any notice to the contrary.
(b) WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This Warrant is
exchangeable, upon the surrender hereof by the Holder hereof at the office or
agency of the Company referred to in Section 10(e), for new Warrants of like
tenor representing in the aggregate the right to purchase the number of shares
of Common Stock which may be purchased hereunder, each of such new Warrants to
represent the right to purchase such number of shares of Common Stock as shall
be designated by said Holder hereof at the time of such surrender. For purposes
hereof, the term "Warrant" shall be deemed to include any and all such
replacement Warrants, whether issued pursuant to this Section 10(b) or any other
Section hereof.
(c) REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably
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, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
(d) CANCELLATION; PAYMENT OF EXPENSES. Upon the surrender of this
Warrant in connection with any transfer, exchange, or replacement as provided in
this Section 10, this Warrant shall be promptly cancelled by the Company. The
Company shall pay any and all United States federal and state taxes (other than
securities transfer taxes) and all other expenses and charges payable in
connection with the preparation, execution, and delivery of Warrants pursuant to
this Section 10.
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(e) REGISTER. The Company shall maintain, at its principal office in
Orlando, Florida (or such other office or agency of the Company as it may
designate by notice to the Holder hereof), a register for this Warrant, in which
the Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
(f) RESTRICTIVE LEGENDS. Each certificate for any Warrant Shares issued
upon the exercise of this Warrant, and each stock certificate issued upon the
transfer of any such Warrant Shares (except as otherwise permitted by this
Section 10) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR ANY EXEMPTION THEREFROM UNDER THE SECURITIES ACT AND
UNDER ANY APPLICABLE STATE SECURITIES LAWS. THESE SHARES MAY NOT BE
TRANSFERRED EXCEPT UPON THE CONDITIONS SPECIFIED IN THE WARRANT
PURSUANT TO WHICH THESE SHARES HAVE BEEN ISSUED, AND NO TRANSFER OF
THESE SHARES SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH
CONDITIONS SHALL HAVE BEEN COMPLIED WITH.
Each Warrant issued in substitution for any Warrant pursuant to this
Section 10 and each Warrant issued upon the transfer of any Warrant (except as
otherwise permitted by this Section 10) shall be stamped or otherwise imprinted
with a legend substantially in the form of the legend contained on the front
page of this Warrant.
(g) TERMINATION OF RESTRICTIONS. The restrictions imposed by Section
10(f) upon the transferability of Warrants and Warrant Shares shall apply as to
this Warrant and any Warrant Shares until (i) such securities shall have been
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering such securities, or (ii) such time as,
in the reasonable opinion of counsel for the Company, or upon the written
opinion of counsel for the Holder reasonably acceptable to the Company, such
restrictions are not required in order to comply with the Securities Act.
Whenever such restrictions shall terminate as to any Warrants or Warrant Shares,
the holder thereof shall be entitled
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to receive from the Company, without expense, new certificates of like tenor not
bearing the restrictive legends set forth in Section 10(f).
11. NOTICES. All notices, requests, and other communications required
or permitted to be given or delivered hereunder to the Holder or to the holder
of shares acquired upon exercise of this Warrant shall be in writing, and shall
be personally delivered, or shall be sent by certified or registered mail,
postage prepaid and addressed, to such holder at the address shown for such
holder on the books of the Company, or at such other address as shall have been
furnished to the Company by notice from such holder. All notices, requests, and
other communications required or permitted to be given or delivered hereunder to
the Company shall be in writing, and shall be personally delivered, or shall be
sent by certified or registered mail, postage prepaid and addressed, to the
office of the Company at 1000 Universal Studios Plaza, Building 22A, Orlando,
Florida 32819, or at such other address as shall have been furnished to the
Holder by notice from the Company. Any such notice, request, or other
communication may be sent by telegrams or telex, but shall in such case be
subsequently confirmed by a writing personally delivered or sent by certified or
registered mail as provided above. All notices, requests, and other
communications shall be deemed to have been given either at the time of the
delivery thereof to (or the receipt by, in the case of a telegram or telex) the
person entitled to receive such notice at the address of such person for
purposes of this Section 11, or, if mailed, at the completion of the third full
day following the time of such mailing thereof to such address, as the case may
be.
12. GOVERNING LAW; SUBMISSION TO PROCESS. THIS WARRANT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
13. REMEDIES. The Company stipulates that the remedies at law of the
Holder in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate, and that such terms may be specifically enforced by a
decree for the specific enforcement of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
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14. MISCELLANEOUS.
(a) AMENDMENTS. This Warrant and any provision hereof may not be
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by the party (or any predecessor in interest thereof) against
which enforcement of the same is sought.
(b) DESCRIPTIVE HEADINGS. The descriptive headings of the several
Sections of this Warrant are inserted for purposes of reference only, and shall
not effect the meaning of construction of any of the provisions hereof.
(c) SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon any
entity succeeding to the Company by merger, consolidation, or acquisition of all
or substantially all the Company's assets.
(d) OBLIGATIONS OF WARRANT HOLDERS. By accepting this Warrant, the
Holder thereof agrees to all of its obligations contained herein.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer on this [ ] day of [ ], 2000.
VICTORY ENTERTAINMENT CORP.
By:
----------------------------
Name:
Title:
ANNEX A
FORM OF EXERCISE AGREEMENT
Dated: ______, _____.
To: VICTORY ENTERTAINMENT CORP.
The undersigned, pursuant to the provisions set forth in the
within Warrant, hereby agrees to purchase ________ ("WARRANT SHARES") shares of
Common Stock covered by such Warrant, and makes payment herewith in full
therefor at the price per share provided by such Warrant either (check one):
o in cash or by check in the amount of U.S. $__________; or
o by "cashless" exercise in accordance with Section 1(b) of such
Warrant (in which case the number of Warrant Shares issuable
upon this exercise will be appropriately determined).
Please issue a certificate or certificates for the appropriate
number of shares of Common Stock in the name of and pay any cash in U.S. dollars
for any fractional share to:
Name:
--------------------------
Signature:
---------------------
Title of Signing Officer or
Agent
(if any):
----------------------
Note: The above signature
should correspond exactly
with the name on the face
of the within Warrant or
with the name of the
assignee appearing in the
assignment form.
Signature guaranteed by:
-------------------------------
NOTE: Signature must be
guaranteed by a commercial
bank, trust company, or by a
member firm of a registered
national securities exchange.
and, if said number of shares of Common Stock shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the name
of said undersigned covering the balance of the shares purchasable thereunder
less any fraction of a share paid in cash.
ANNEX B
FORM OF ASSIGNMENT AGREEMENT
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.