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Exhibit: 10.57FT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION ("BLUE SKY LAWS"), AND CANNOT BE RESOLD UNLESS THEY ARE REGISTERED
UNDER THE ACT AND ANY APPLICABLE BLUE SKY LAWS, UNLESS AN EXEMPTION IS
AVAILABLE. THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF.
FUTECH INTERACTIVE PRODUCTS, INC.
STOCK PURCHASE WARRANT
WARRANT TO PURCHASE 21,000,000 SHARES OF
COMMON STOCK AS DESCRIBED HEREIN
Dated: December 3, 1998
This certifies that, for value received:
Name: Palmilla Management Trust
Address: 2999 North 44th St. Suite 225
Phoenix, Arizona 85018
Telephone: 602-808-9888
is entitled to purchase from Futech Interactive Products, Inc., an Arizona
corporation (the "Company"), having its principal office at 2999 North 44th
Street, Suite 225, Phoenix, Arizona 85018, Twenty-One Million (21,000,000) fully
paid and nonassessable shares of Common Stock, no par value, of the Company (the
"Common Stock"), subject to the terms set forth herein, at an exercise price of
Five Cents ($0.05) per share, subject to adjustment as provided elsewhere herein
(the "Warrant Price"). The holder of this Warrant shall be referred to herein as
the "Warrantholder" or the "Holder."
1. "Common Stock." If at any time, as a result of an adjustment made
pursuant to Section 3, the securities or other property obtainable upon exercise
of this Warrant shall include shares or other securities of the Company other
than common stock or securities of another corporation or other property,
thereafter the number of such other shares or other securities or property so
obtainable shall be subject to adjustment from time to time in a manner and on
terms
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as nearly equivalent as practicable to the provisions with respect to the Common
Stock contained in Section 3, and all other provisions of this Warrant with
respect to the Common Stock shall apply on like terms to any such other shares
or other securities or property. Subject to the foregoing, and unless the
context requires otherwise, all references herein to "Common Stock" shall, in
the event of an adjustment pursuant to Section 3, be deemed to refer as well to
any other securities or property then obtainable as a result of such
adjustments.
2. Exercise of Warrant. The purchase rights represented by this Warrant
may be exercised by the Warrantholder or its duly authorized attorney or
representative, in whole or in part (but not as to a fractional share of Common
Stock), at any time and from time to time during the period commencing on the
date of this Warrant (the "Commencement Date") and expiring at 5:00 p.m.,
Arizona Time, December 3, 2008 (the "Expiration Date"), or if such date is a day
on which federal or state chartered banking institutions are authorized by law
to close, then on the next succeeding day which shall not be such a day, upon
presentation of this Warrant at the principal office of the Company, or at the
office of its stock transfer agent, if any, with the purchase form attached
hereto duly completed and signed, and upon payment to the Company in cash or by
certified check or bank draft of an amount equal to the number of shares being
so purchased multiplied by the Warrant Price, together with all taxes applicable
upon such exercise. The Company agrees that the Warrantholder will be deemed the
record owner of such shares as of the close of business on the date on which the
Warrant shall have been presented and payment shall have been made for such
shares as aforesaid. Certificates for the shares of Common Stock so purchased
shall be delivered to the Warrantholder within a reasonable time, not exceeding
20 days, after the exercise in full of the rights represented by this Warrant.
If the Warrant is exercised in part only, the Company shall, upon
surrender of this Warrant for cancellation, deliver a new Warrant evidencing the
rights of the Warrantholder to purchase the balance of the shares of Common
Stock which the Warrantholder is entitled to purchase hereunder.
3. Certain Adjustments to Warrant.
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company,
the number of shares of Common Stock purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Warrantholder shall be
entitled to receive the kind and number of shares of Common Stock or other
securities of the Company which he would have owned or have been entitled to
receive at the happening of any of the events described above, had such Warrant
been exercised immediately prior to the happening of such event or any record
date with respect thereto. An adjustment made pursuant to this paragraph (a)
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
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(b) Whenever the number of shares of Common Stock purchasable upon the
exercise of this Warrant is adjusted, as herein provided, the Warrant Price
shall be adjusted by multiplying such Warrant Price immediately prior to such
adjustment by a fraction, of which the numerator shall be the number of shares
of Common Stock purchasable upon the exercise of this Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of shares
of Common Stock so purchasable immediately thereafter.
(c) In the event of any adjustment pursuant to this Section 3, no
fractional shares of Common Stock shall be issued in connection with the
exercise of any Warrants, but the Company shall, in lieu of such fractional
shares, make such cash payment therefor on the basis of the current market price
on the day immediately prior to exercise.
(d) Irrespective of any adjustments pursuant to this Section 3 to the
Warrant Price or to the number of shares or other securities obtainable upon
exercise of this Warrant, this Warrant may continue to state the Warrant Price
and the number of shares obtainable upon exercise, as the same price and number
of shares stated herein.
4. Merger: Change in Control.
(a) Change in Control shall be deemed to have occurred if (i) any
"person" (as such term is used in Paragraphs 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended [the "Exchange Act"]), other than a trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or a corporation owned directly or indirectly by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company representing
one-third or more of the total voting power represented by the Company's then
outstanding Common Stock, or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board of
Directors or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the Common Stock of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Common Stock of the surviving
entity) at least two-thirds of the total voting power represented by the Common
Stock of the Company or such surviving entity outstanding immediately after such
merger or consolidation, or the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of (in one transaction or a series of transactions) all or
substantially all the Company's assets.
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(b) In the event of a merger, consolidation or reorganization with
another corporation in which the Company is not the surviving corporation, the
Company (subject to the approval of the Board) or the board of directors of any
corporation assuming the obligations of the Company hereunder shall take action
pursuant to either clause (i) or (ii) below:
(i) Appropriate provision may be made for the protection of this
Warrant by the substitution on an equitable basis of appropriate shares of the
surviving corporation, provided that the excess of the aggregate fair market
value (as determined by the Company) of the shares subject to this Warrant
immediately before such substitution over the exercise price hereof is not more
than the excess of the aggregate fair market value of the substituted shares
made subject to purchase immediately after such substitution over the exercise
price thereof; or
(ii) Appropriate provision may be made for the cancellation of this
Warrant. In such event, the Company, or the corporation assuming the obligations
of the Company hereunder, shall pay the Holder an amount of cash (less normal
withholding taxes) equal to the excess of the highest fair market value per
share of the Common Stock during the 60-day period immediately preceding the
merger, consolidation or reorganization over the exercise price, multiplied by
the number of shares subject to this Warrant (whether or not then exercisable).
(c) Upon a Change in Control, this Warrant (provided that it has been
outstanding for at least six months) shall accelerate so that the Holder shall
have the right, at all times until the expiration or earlier termination of this
Warrant, to exercise the unexercised portions of this Warrant.
5. Covenants of the Company. The Company covenants and agrees that:
(a) During the period within which the rights represented by the
Warrant may be exercised, the Company will at all times reserve and keep
available, free from preemptive rights out of the aggregate of its authorized
but unissued Common Stock, for the purpose of enabling it to satisfy any
obligation to issue shares of Common Stock upon the exercise of this Warrant,
the number of shares of Common Stock deliverable upon the exercise of this
Warrant. If at any time the number of shares of authorized Common Stock shall
not be sufficient to effect the exercise of this Warrant, the Company will take
such corporate action as may be necessary to increase its authorized but
unissued Common Stock to such number of shares as shall be sufficient for such
purpose. The Company shall have analogous obligations with respect to any other
securities or properties issuable upon exercise of this Warrant. The Company's
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Common Stock upon the exercise of this
Warrant;
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(b) All Common Stock that may be issued upon exercise of the rights
represented by this Warrant will, upon issuance, be validly issued, fully paid,
nonassessable, and free from all taxes, liens, and charges with respect to the
issue thereof; and
(c) All original issue taxes payable with respect to the issuance of
shares upon the exercise of the rights represented by this Warrant will be borne
by the Company but in no event will the Company be responsible or liable for
income taxes or transfer taxes upon the transfer of any Warrant.
7. No Stockholder Rights. Until exercised, this Warrant shall not
entitle the Warrantholder to any voting rights or other rights as a stockholder
of the Company. The rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
8. Transfer Restrictions.
(a) This Warrant is not transferable except by will or the laws of
descent and distribution and, during Holder's lifetime, it may only be exercised
by Holder.
(b) Neither this Warrant nor the shares of stock issuable upon the
exercise hereof have been registered under the Securities Act of 1933, as
amended (the "Securities Act") or under any state securities laws and unless so
registered may not be transferred, sold, pledged, hypothecated or otherwise
disposed of unless an exemption from such registration is available. In the
event Holder desires to transfer any of the shares of stock issued hereunder,
the Holder must give the Company prior written notice of such proposed transfer
including the name and address of the proposed transferee. Such transfer may be
made only either (i) upon publication by the Securities and Exchange Commission
(the "Commission") of a ruling, interpretation, opinion or "no action letter"
based upon facts presented to said Commission, or (ii) upon receipt by the
Company of an opinion of counsel to the Company in either case to the effect
that the proposed transfer will not violate the provisions of the Securities
Act, the Securities Exchange Act of 1934, as amended, or the rules and
regulations promulgated under either such act, or in the case of clause (ii)
above, to the effect that the shares of stock to be sold or transferred have
been registered under the Securities Act and that there is in effect a current
prospectus meeting the requirements of Subsection 10(a) of the Securities Act,
which is being or will be delivered to the purchaser or transferee at or prior
to the time of delivery of the certificates evidencing the shares of stock to be
sold or transferred.
(c) Prior to any such proposed transfer, and as a condition thereto,
if such transfer is not made pursuant to an effective registration statement
under the Securities Act, the Holder will, if requested by the Company, deliver
to the Company (i) an investment covenant signed by the proposed transferee,
(ii) an agreement by such transferee to the impression of the restrictive
investment legend set forth herein on the certificate or certificates
representing the securities acquired by such transferee, (iii) an agreement by
such transferee that the Company may
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place a "stop transfer order" with its transfer agent or registrar, and (iv) an
agreement by the transferee to indemnify the Company to the same extent as set
forth in paragraph 7(d) below.
(d) Holder acknowledges that Holder understands the meaning and
legal consequences of this Section 7, and the Holder hereby agrees to indemnify
and hold harmless the Company, its representatives and each officer and director
thereof from and against any and all loss, damage or liability (including all
attorneys' fees and costs incurred in enforcing this indemnity provision) due to
or arising out of (i) the inaccuracy of any representation or the breach of any
warranty of Holder contained in, or any other breach of, this Warrant Agreement,
(ii) any transfer of any of this Warrant or the shares of stock issuable
hereunder in violation of the Securities Act, the Securities Exchange Act of
1934, as amended, or the rules and regulations promulgated under either of such
acts, (iii) any transfer of this Warrant or any of said shares of stock not in
accordance with this Warrant Agreement or (iv) any untrue statement or omission
to state any material fact in connection with the investment representations or
with respect to the facts and representations supplied by the Holder to counsel
to the Company upon which its opinion as to a proposed transfer shall have been
based.
(e) Any assignment, transfer, pledge, hypothecation or other
disposition of this Warrant attempted contrary to the provisions of this Warrant
Agreement, or any levy of execution, attachment or other process attempted upon
the Warrant, shall be null and void and without effect.
(f) Unless the shares of stock issuable hereunder have been
registered under the Securities Act, upon exercise of this Warrant (in whole or
in part) and the issuance of any of said shares, the Company shall instruct its
transfer agent to enter stop transfer orders with respect to such shares, and
all certificates representing said shares shall bear on the face thereof
substantially the following legend, insofar as is consistent with Arizona law:
"The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended, and
may not be sold, offered for sale, assigned, transferred or
otherwise disposed of unless registered pursuant to the provisions
of that Act or an opinion of counsel to the Company is obtained
stating that such disposition is in compliance with an available
exemption from such registration."
10. No Guarantee of Employment. This Agreement shall in no way
restrict any right (which might otherwise exist) of the Company or any of its
subsidiaries to terminate Holder's employment at any time.
11. Lost Certificate. If this Warrant is lost, stolen, mutilated or
destroyed, the Company shall, on such terms as the Company may reasonably
impose, including a requirement that the Warrantholder obtain a bond, issue a
new Warrant of like denomination, tenor and date.
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12. Binding Effect This Warrant shall inure to the benefit of and be
binding upon the Warrantholder, the Company and their respective successors and
permitted assigns.
13. Company's Notice of Certain Events. So long as this Warrant shall
be outstanding and unexercised (i) if the Company shall pay any dividend or make
any distribution upon the Common Stock, or (ii) if the company shall offer to
the holders of Common Stock for subscription or purchase by them any shares of
stock of any class or any other rights, or (iii) in the event of any capital
reorganization of the Company, reclassification of the Company, reclassification
of the capital stock of the Company, consolidation or merger of the Company with
or into another corporation, sale, lease or transfer of shall or substantially
all of the property and assets of the Company to another corporation, or
voluntary or involuntary dissolution, the Company shall cause to be delivered to
the Holder, at least ten days prior to the date specified in (a) or (b) below,
as the case may be, a notice containing a brief description of the proposed
action and stating the date on which (a) a record is to be taken for the purpose
of such dividend, distribution or rights, or (b) such reclassification,
reorganization, consolidation, merger, conveyance, lease, dissolution,
liquidation or winding up is to take place and the date, if any, is to be fixed,
as of which the holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up.
14. Notice. Notices and other communications to be given to the Holder
of the Warrants evidenced by this certificate shall be delivered by hand, by
facsimile transmission, or by overnight express courier or mailed, postage
prepaid, to the Holder at the address set forth above, or such other address as
Holder shall have designated by written notice to the Company as provided
herein. Notices or other communications to the Company shall be deemed to have
been sufficiently given if delivered by hand, by facsimile transmission, or by
overnight express courier or mailed, postage prepaid, to the company at 2999
North 44th Street, Suite 225, Phoenix, Arizona 85018, or such other address as
the Company shall have designated by written notice to such registered owner as
herein provided. All notices required hereunder shall be in writing and shall be
deemed received when delivered personally, one business day after delivery to a
nationally recognized commercial overnight courier service, or two business days
after mailing when mailed by certified or registered mail to the Company or the
Warrantholder.
15. Governing Law. The validity, interpretation, and performance of
this Warrant and of the terms and provisions hereof shall be governed by and
construed in accordance with the internal laws of the State of Arizona without
giving effect to the principles of conflicts of laws.
16. Amendment. This Warrant may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the Company and the Warrantholder.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
effective as of Dec. 3, 1998.
FUTECH INTERACTIVE PRODUCTS, INC.
By: /s/ Vincent W. Goett
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Name: Vincent W. Goett
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Title: CEO/Chairman
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PURCHASE FORM
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To Be Executed
Upon Exercise of Warrant
The undersigned hereby exercises the right to purchase_________shares
of Common Stock of Futech Interactive Products, Inc., evidenced by the within
Warrant, according to the terms and conditions thereof, and herewith makes
payment of the purchase price in full. The undersigned requests that
certificate(s) for such shares shall be issued in the name set forth below.
Dated: [NAME OF HOLDER]
By
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(Signature)
Name:
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(Please Print)
Address:
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Employer Identification No., Social
Security No. or other identifying number:
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If the number of shares specified above shall not be all the shares
purchasable under the within warrant, the Warrantholder hereby requests that a
new Warrant for the unexercised portion shall be registered in Warrantholder's
name and delivered to the address set forth in the Warrant.
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