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EXHIBIT 10.50
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WARRANT AGREEMENT OF
THE ▇▇▇▇▇▇ ENTERTAINMENT COMPANY
50,000 SHARES
Dated as of January 16, 1997
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COMMON STOCK PURCHASE WARRANT
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WARRANT AGREEMENT dated as of January 16, 1997, between The ▇▇▇▇▇▇
Entertainment Company, a California corporation (the "Company"), the Company as
Warrant Agent (in such capacity, "Warrant Agent"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the
"Warrant Holder" or "Holder").
The Company proposes to issue two Common Stock Purchase Warrants as
hereinafter described (collectively the "Warrant") to purchase an aggregate of
up to 50,000 shares of its Common Stock (the "Common Stock"), no par value per
share (the shares of Common Stock issuable on exercise of the Warrant being
referred to herein as the "Warrant Shares"), in favor of Warrant Holder.
In consideration of the nonexclusive consulting services provided to
the Company in matters relating to possible acquisition transactions, investment
opportunities, investor relations and such services as the Company may request
from time to time (the "Services") from the Warrant Holder, and for the purpose
of defining the terms and provisions of the Warrant and the respective rights
and obligations thereunder of the Company and the Holder, the Company and the
Warrant Holder hereby agree as follows:
SECTION 1. TRANSFERABILITY AND FORM OF THE WARRANT.
1.1 REGISTRATION. The Warrant shall be numbered and shall
be registered on the books of the Company maintained at the principal office of
the Company in Los Angeles, California ("the Warrant Register"). The Company
shall be entitled to treat the Holder of the Warrant as the owner in fact
thereof for all purposes and shall not be bound to recognize any equitable or
other claim to or interest in such Warrant on the part of any other person, and
shall not be liable for any Company registration or transfer of Warrant which is
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer, or
with such knowledge of such facts that its participation therein amounts to bad
faith.
1.2 TRANSFER RESTRICTIONS. The Holder may not transfer the
Warrant without the prior written consent of the Company, which consent may be
granted or denied in the sole discretion of the Company. Should such consent be
granted, the Warrant so transferred shall continue to be bound by this
restriction in the hands of a subsequent Holder, and the Company shall not
recognize any attempted transfer of the Warrant in violation of this Agreement.
1.3 TRANSFER-GENERAL. Subject to the terms hereof, the
Warrant shall be transferable only on the books of the Company maintained at its
principal office upon delivery thereof duly endorsed by the Holder or by his
duly authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. In all cases of transfer by an
attorney, the original power of attorney, duly approved, or a copy thereof, duly
certified, shall be deposited and remain with the Company. In case of transfer
by executors, administrators, guardians or other legal representatives, duly
authenticated
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evidence of their authority shall be produced, and may be required
to be deposited and to remain with the Company in its discretion. Upon any
registration of transfer, the Company shall countersign and deliver a new
Warrant to the persons entitled thereto. The Company or the Warrant Agent may
require the payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any such transfer.
1.4 FORM OF THE WARRANT. The text of the Warrant and of the
form of election to purchase Warrant Shares (the "Purchase Form") shall be
substantially as set forth respectively in Exhibits A, B and C attached hereto.
The price per Warrant Share and the number of Warrant Shares issuable upon
exercise of each Warrant are subject to adjustment upon the occurrence of
certain events, all as hereinafter provided. The Warrant shall be executed on
behalf of the Company by its Chairman of the Board, its Chief Executive Officer,
President or one of its Vice Presidents, under its corporate seal reproduced
thereon, and attested by its Secretary or an Assistant Secretary.
The Warrant shall be dated as of the date of
countersignature thereof by the Company either upon initial issuance or upon
transfer.
SECTION 2. TERM OF THE WARRANT; EXERCISE OF THE WARRANT; WARRANT
PRICE, ETC.
2.1 TERM OF THE WARRANT. Subject to the terms of this
Agreement, the Holder shall have the right, which may be exercised from time to
time, from and through the dates set forth in the Warrant, to purchase from the
Company the number of fully paid and nonassessable Warrant Shares which the
Holder may at the time be entitled to purchase on exercise of such Warrant. If
the last day for the exercise of the Warrant shall not be a business day, then
the Warrant may be exercised on the next succeeding business day.
2.2 VESTING OF THE WARRANT. Warrant No. One to purchase
25,000 Warrant Shares shall immediately vest and may be exercised on or after
the date hereof in accordance with the terms of this Agreement and the Warrant
Certificate. Warrant No. Two to purchase 25,000 Warrant Shares may be exercised
and will vest on the earlier of (i) a Change of Control (as hereinafter defined)
of the Company or (ii) January 1, 1998, in the event that the Company has
requested and the Warrant Holder has agreed to continue to perform the Services
through December 31, 1998; provided, however, that in the event on January 1,
1998, (i) there has been no Change of Control of the Company or (ii) the Company
has not requested or the Warrant Holder has not agreed to provide services
through December 31, 1998, then Warrant No. Two shall not vest, may not be
exercised, and shall be of no force or effect. For this purpose, a "Change of
Control" is: (i) the consummation of a merger, consolidation or other
reorganization of the Company pursuant to which control of more than 50% of the
Company's voting securities has changed; (ii) successful completion of a tender
offer for more than 50% of the Company's outstanding capital stock; (iii) or the
sale of all or substantially all of the assets of the Company to any person
other than AKAUSA Limited and/or its affiliates or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and his
affiliates.
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2.3 EXERCISE OF THE WARRANT. The Warrant may be exercised
upon surrender to the Company, at its principal office, of the certificate
evidencing the Warrant to be exercised, together with the Purchase Form on the
reverse thereof duly filled in and signed, and upon payment to the Company, of
the Warrant Price (as defined in and determined in accordance with the
provisions of Sections 2 and 6 hereof), for the number of Warrant Shares in
respect of which such Warrant is then exercised. Upon partial exercise, a
Warrant Certificate for the unexercised portion shall be delivered to the
Holder. Payment of the aggregate Warrant Price shall be payable in cash, by
certified or official bank check or wire transfer.
Subject to Section 3 hereof, upon such surrender of the
Warrant and payment of the Warrant Price as aforesaid, the Company shall issue
and cause to be delivered with all reasonable dispatch to or upon the written
order of the Holder and in such name or names as the Holder may designate, a
certificate or certificates for the number of full Warrant Shares so purchased
upon the exercise of such Warrant, together with cash, as provided in Section 8
hereof, in respect of any fractional Warrant Shares otherwise issuable upon such
surrender. Such certificate or certificates shall be deemed to have been issued
and any person so designated to be named therein shall be deemed to have become
a holder of record of such Warrant Shares as of the date of the surrender of
such Warrant and payment of the Warrant Price, as aforesaid; provided, however,
that if, at the date of surrender of such Warrant and payment of such Warrant
Price, the transfer books for the Warrant Shares or other class of stock
purchasable upon the exercise of such Warrant shall be closed, the certificates
for the Warrant Shares in respect of which such Warrant are then exercised shall
be issuable as of the date on which such books shall next be opened (whether
before or after the Expiration Date) and until such date the Company shall be
under no duty to deliver any certificate for such Warrant Shares; provided,
further, that the transfer books of record, unless otherwise required by law,
shall not be closed at any one time for a period longer than 20 calendar days.
2.4 COMPLIANCE WITH GOVERNMENT REGULATIONS. Holder
acknowledges that none of the Warrant or Warrant Shares has been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and
therefore may be sold or disposed of in the absence of such registration only
pursuant to an exemption from such registration and in accordance with this
Agreement. The Warrant and the Warrant Shares will bear a legend to the
following effect:
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE OR OTHER
DISPOSITION OR PLEDGE OF THESE SECURITIES OR THE SECURITIES UNDERLYING
THESE SECURITIES CAN BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATING THERETO OR AN AVAILABLE EXEMPTION FROM
REGISTRATION."
2.5 WARRANT PRICE. The price per share at which Warrant
Shares shall be purchasable upon exercise of the Warrant (the "Warrant Price")
shall be $10.00, subject to
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adjustment pursuant to Section 6 hereof.
SECTION 3. PAYMENT OF TAXES AND INDEMNIFICATION.
3.1 PAYMENT OF TAXES. The Company will pay all documentary
stamp taxes, if any, attributable to the initial issuance of Warrant and Warrant
Shares upon the exercise of Warrant; provided, however, that the Company shall
not be required to pay any income tax or taxes resulting from the issuance of
the warrant or any other tax or taxes which may be payable in respect of any
transfer involved in the issue or delivery of the Warrant or certificates for
Warrant Shares.
3.2 INDEMNIFICATION. Warrant Holder hereby agrees to
indemnify and hold the Company harmless from any and all taxes that may result
from the issuance of the Warrant or any subsequent exercise of the Warrant and
issuance of the Warrant shares, including, but without limitotion, any income or
transfer taxes.
SECTION 4. MUTILATED OR MISSING WARRANT. In case the Warrant shall
be mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or destroyed, a new
Warrant certificate of like tenor and representing an equivalent right or
interest; but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction of such Warrant certificate and
indemnity or bond, if requested, also reasonably satisfactory to them. An
applicant for such substitute Warrant certificate shall also comply with such
other reasonable regulations and pay such other reasonable charges as the
Company may prescribe.
SECTION 5. RESERVATION OF WARRANT SHARES.
5.1 RESERVATION OF WARRANT SHARES. There have been
reserved, and the Company shall at all times keep reserved, out of its
authorized shares of Common Stock, a number of shares of Common Stock sufficient
to provide for the exercise of the rights of purchase represented by the
outstanding Warrant. The transfer agent for the Common Stock ("Transfer Agent"),
and every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of any of the rights of purchase aforesaid will
be and are hereby irrevocably authorized and directed at all times until the
Expiration Date to reserve such number of authorized shares as shall be
requisite for such purpose. The Company will keep a copy of this Agreement on
file with the Transfer Agent and with every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of the rights
of purchase represented by the Warrant. The Company covenants that all Warrant
Shares which may be issued upon exercise of Warrant will, upon issue, be fully
paid, nonassessable, free of preemptive rights and free from all taxes, liens,
charges and security interests with respect to the issue thereof. The Company
will supply such Transfer Agent and any subsequent transfer agent with duly
executed stock certificates for such purpose and will itself provide or
otherwise make available any cash which may be payable as provided in Section 8
of this Agreement. The Company will furnish to such Transfer Agent a copy of all
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notices of adjustments, and certificates related thereto, transmitted to each
Holder. The Warrant surrendered in the exercise of the rights thereby evidenced
shall be cancelled by the Company.
5.2 CANCELLATION OF THE WARRANT. In the event the Company
shall purchase or otherwise acquire the Warrant, the same shall be cancelled and
retired.
SECTION 6. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF WARRANT
SHARES. The number and kind of securities purchasable upon the exercise of the
Warrant and the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events, as hereinafter defined.
6.1 MECHANICAL ADJUSTMENTS. The number of Warrant Shares
purchasable upon the exercise of the Warrant and the Warrant Price shall be
subject to adjustment as follows:
(a) In case the Company shall at any time after
the date of this Agreement (i) declare or 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 any shares of its capital stock in a
reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which
the Company is the continuing entity), the number of Warrant Shares
purchasable upon exercise of the Warrant immediately prior thereto
shall be adjusted so that the Holder of the Warrant shall be entitled
to receive the kind and number of Warrant Shares or other securities of
the Company which he would have owned or have been entitled to receive
after 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.
(b) In case the Company shall issue rights,
options or warrants to holders of its outstanding Common Stock
entitling them (for a period within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common Stock at
a price per share which is lower at the record date mentioned below
than the then current market price per share of Common Stock (as
defined in paragraph (e) below), the number of Warrant Shares
thereafter purchasable upon the exercise of the Warrant shall be
determined by multiplying the number of Warrant Shares theretofore
purchasable upon exercise of the Warrant by a fraction, of which the
numerator shall be the number of shares of Common Stock outstanding on
the date of issuance of such rights, options or warrants plus the
number of additional shares of Common Stock offered for subscription or
purchase, and of which the denominator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of shares which the aggregate
offering price of the total
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number of shares of Common Stock so offered would purchase at the
current market price per share of Common Stock at such record date.
Such adjustments shall be made whenever such rights, options or
warrants are issued, and shall become effective immediately after the
record date for the determination of stockholders entitled to receive
such rights, options or warrants.
(c) In case the Company shall distribute to
holders of its shares of Common Stock evidences of its indebtedness or
assets (excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus legally available for payment
of dividends at the time of any such payment or distribution, but
excluding dividends or distributions referred to in paragraph (a) above
or in the paragraph immediately following this paragraph) or rights,
options or warrants, or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common
Stock (excluding those referred to in paragraph (b) above), then in
each case the number of Warrant Shares thereafter purchasable upon the
exercise of the Warrant shall be determined by multiplying the number
of Warrant Shares theretofore purchasable upon the exercise of the
Warrant by a fraction, of which the numerator shall be the then current
market price per share of Common Stock (as defined in paragraph (e)
below) on the date of such distribution, and of which the denominator
shall be the then current market price per share of Common Stock, less
the then fair value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the portion of the
assets or evidences of indebtedness so distributed or of such
subscription rights, options or warrants, or of such convertible or
exchangeable securities applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and
shall become effective on the date of distribution retroactive to the
record date for the determination of stockholders entitled to receive
such distribution.
In the event of a distribution by the Company to
holders of its shares of Common Stock of stock of a subsidiary or
securities convertible into or exercisable for such stock, then in lieu
of an adjustment in the number of Warrant Shares purchasable upon the
exercise of the Warrant, the Holder of the Warrant, upon the exercise
thereof at any time after such distribution, shall be entitled to
receive from the Company, such subsidiary or both, as the Company shall
determine, the stock or other securities to which such Holder would
have been entitled if such Holder had exercised such Warrant
immediately prior thereto, all subject to further adjustment as
provided in this Section 6.1; provided, however, that no adjustment in
respect of dividends or interest on such stock or other securities
shall be made during the term of a Warrant or upon the exercise of a
Warrant other than adjustments required by this Section 6.
(d) In case the Company shall issue shares of
Common Stock or rights, options or warrants containing the right to
subscribe for or purchase shares of Common Stock or securities
convertible into Common Stock (excluding (i) shares, rights, options,
warrants or convertible securities issued in any of the transactions
described in paragraphs (a), (b) or (c) above, or (ii) Warrant Shares
issued upon
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exercise of the Warrant), for a price per share of Common Stock, in the
case of the issuance of Common Stock, or for a price per share of
Common Stock initially deliverable upon conversion or exchange of such
securities less than the then current market price per share of Common
Stock (as defined in paragraph (e) below) on the date the Company fixed
the offering, conversion or exchange price of such additional shares,
the number of Warrant Shares thereafter purchasable upon the exercise
of the Warrant shall be determined by multiplying the number of Warrant
Shares theretofore purchasable upon exercise of the Warrant by a
fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on such date plus the number of additional
shares of Common Stock offered for subscription or purchase, and of
which the denominator shall be the number of shares of Common Stock
outstanding on such date plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so offered
would purchase at the current market price per share of Common Stock at
such record date. Such adjustment shall be made whenever such shares,
rights, options or warranties are issued, and shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(e) For the purpose of any computation under
paragraphs (b), (c) and (d) of this Section, the current market price
per share of Common Stock at any date shall be the average of the daily
closing prices for 10 consecutive trading days commencing 20 trading
days before the date of such computation. The closing price for each
day shall be the last such reported sales price regular way or, in case
no such reported sale takes place on such day, the average of the
closing bid and asked prices regular way for such day, in each case on
the principal national securities exchange or in the NASDAQ National
Market System to which the shares of Common Stock are listed or
admitted to trading or, if not listed or admitted to trading, the
average of the closing bid and asked prices of the Common Stock in the
over-the-counter market as reported by NASDAQ or any comparable system,
or if the Common Stock is not listed on NASDAQ or a comparable system,
the average of the closing bid and asked prices as furnished by two
members of the National Association of Securities Dealers, Inc.
("NASD") selected from time to time by the Board of Directors of the
Company for that purpose. In the absence of one or more such
quotations, the Board of Directors of the Company shall determine the
current market price on the basis of such quotations as it considers
appropriate or in the case of securities which are not quoted, the
Board of Directors of the Company shall determine the current market
price based upon such information and advice as it considers
appropriate. In the case of rights, options, warrants or convertible or
exchangeable securities, the price per share of Common Stock shall be
determined by dividing (x) the total amount received or receivable by
the Company in consideration of the sale and issuance of such rights,
options, warrants or convertible or exchangeable securities, plus the
total consideration payable to the Company upon exercise or conversion
or exchange thereof, by (y) the total number of shares of Common Stock
covered by such rights, options, warrants or convertible or
exchangeable securities.
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(f) Whenever the number of Warrant Shares
purchasable upon the exercise of the Warrant is adjusted, as herein
provided, the Warrant Price payable upon exercise of the Warrant 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
Warrant Shares purchasable upon the exercise of the Warrant immediately
prior to such adjustment, and of which the denominator shall be the
number of Warrant Shares purchasable immediately thereafter.
(g) In case the Company shall sell or issue
shares of Common Stock or rights, options, warrants or convertible or
exchangeable securities containing the right to subscribe or purchase
shares of Common Stock in the following situations:
(i) to officers, directors, consultants or
employees of the Company pursuant to an employee
stock option plan approved by the Company's
shareholders either at a price not less than 95% of
the current market price of the Company's Common
Stock or in an amount (taking into account all prior
sales or issuances excluded pursuant to this clause
(i)) not greater than 5% of the total number of
shares of Common Stock outstanding on a fully
diluted basis; or
(ii) to sellers of assets or interests in
other enterprises in exchange for the arm's length
acquisition of such assets or interests,
there shall be no adjustment in the Warrant Price or the number of
Warrant Shares either upon the initial issuance of such securities or
upon the exercise or conversion thereof.
(h) No adjustment in the number of Warrant Shares
purchasable hereunder shall be required unless such adjustment would
result in an increase or decrease of at least one percent (1%) of the
Warrant Price; provided, however, that any adjustments which by reason
of this paragraph (h) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment or upon
exercise of the Warrant. All calculations shall be made to the nearest
cent or to the nearest one-thousandth of a share, as the case may be.
(i) No adjustment in the number of Warrant Shares
purchasable upon the exercise of the Warrant need be made under
paragraphs (b), (c), or (d) if the Company issues or distributes to the
Holder of the Warrant the shares, rights, options, warrants, or
convertible or exchangeable securities, or evidences of indebtedness or
assets referred to in those paragraphs which the Holder of the Warrant
would have been entitled to receive had the Warrant been exercised
prior to the happening of such event or the record date with respect
thereto. No adjustment in the number of Warrant Shares purchasable upon
the exercise of the Warrant need be made for sales of Warrant Shares
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value of the Warrant
Shares.
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(j) For the purpose of this Section 6.1, the term
"shares of Common Stock" shall mean (i) the class of stock designated
as the Common Stock of the Company at the date of this Agreement, or
(ii) any other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes from no
par value to par value, changes in par value, or changes from par value
to no par value. In the event that at any time, as a result of an
adjustment made pursuant to paragraph (a) above, the Holder shall
become entitled to purchase any securities of the Company other than
shares of Common Stock, thereafter the number of such other shares so
purchasable upon exercise of the Warrant and the Warrant Price of such
shares shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with
respect to the Warrant Shares contained in paragraphs (a) through (h),
inclusive, above, and the provisions of Section 2 and Sections 6.2
through 6.3, inclusive, with respect to the Warrant Shares, shall apply
on like terms to any such other securities; provided, however, that the
Warrant Price shall at no time be less than the par value of the Common
Stock of the Company; provided, further, that the Company shall reduce
the par value of its Common Stock from time to time as necessary so
that such par value shall not be more than the Warrant Price then in
effect.
(k) Upon the expiration of any rights, options,
warrants or conversion or exchange privileges, the issuance of which
required an adjustment in the number of shares of Common Stock
purchasable upon exercise of the Warrant, if any thereof shall not have
been exercised, the Warrant Price and the number of shares of Common
Stock purchasable upon the exercise of the Warrant shall, upon such
expiration, be readjusted and shall thereafter be such as it would have
been had it been originally adjusted (or had the original adjustment
not been required, as the case may be) as if (A) the only shares of
Common Stock so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights and (B) such shares of Common
Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised; provided,
however, that no such readjustment shall have the effect of increasing
the Warrant Price or decreasing the number of shares of Common Stock
purchasable upon the exercise of the Warrant by an amount in excess of
the amount of the adjustment initially made in respect to the issuance,
sale or grant of such rights, options, warrants or conversion or
exchange rights, and provided further that the issuance of shares of
Common Stock pursuant to rights, options, warrants or conversion or
exchange rights shall not be cause for additional adjustments beyond
the adjustments provided in respect of the initial issuance of the
rights, options, warrants or conversion or exchange rights.
6.2 NOTICE OF ADJUSTMENT. Whenever the number of Warrant
Shares purchasable upon the exercise of the Warrant or the Warrant Price of such
Warrant Shares is adjusted, as herein provided, the Company shall mail by first
class, postage prepaid, to each
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Holder notice of such adjustment or adjustments and shall deliver to the Holder
a copy of a certificate of either the Board of Directors of the Company or of a
firm of independent public accountants selected by the Board of Directors of the
Company (who may be the regular accountants employed by the Company) setting
forth the number of Warrant Shares purchasable upon the exercise of the Warrant
and the Warrant Price of such Warrant Shares after such adjustment, setting
forth a brief statement of the facts requiring such adjustment and setting forth
the computation by which such adjustment was made. Such certificate shall be
conclusive evidence of the correctness of such adjustment in the absence of
manifest error.
6.3 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in
Section 6.1, no adjustment in respect of any dividends shall be made during the
term of a Warrant or upon the exercise or conversion of a Warrant.
6.4 PRESERVATION OF PURCHASE RIGHTS UPON MERGER,
CONSOLIDATION, ETC. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale, transfer or
lease to another corporation of all or substantially all the property of the
Company, the Company or such successor or purchasing corporation, as the case
may be, shall execute an amendment to this Agreement that each Holder shall have
the right thereafter upon payment of the Warrant Price in effect immediately
prior to such action to purchase upon exercise of the Warrant the kind and
amount of shares and other securities and property which he would have owned or
have been entitled to receive upon the happening of such consolidation, merger,
sale, transfer or lease had such Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of a Warrant or upon the exercise of a Warrant.
Such agreement shall provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
6. The provisions of this Section 6.4 shall similarly apply to successive
consolidations, mergers, sales, transfers or leases.
6.5 STATEMENT ON THE WARRANT. Irrespective of any
adjustments in the Warrant Price or the number or kind of shares purchasable
upon the exercise of the Warrant, the Warrant theretofore or thereafter issued
may continue to express the same price and number and kind of shares as are
stated in the Warrant initially issuable pursuant to this Agreement.
SECTION 7. REGISTRATION RIGHTS.
7.1 CERTAIN DEFINITIONS.
As used in this Warrant Agreement, the following terms shall
have the following respective meanings:
(a) COMMISSION means the Securities and Exchange
Commission.
(b) EXCHANGE ACT means the Securities Exchange
Act of 1934, as
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amended, or any successor act, and the rules and regulations of
the Commission promulgated thereunder, all as the same shall be in effect at the
time.
(c) REGISTRABLE SECURITIES means the Warrant
Shares issued or issuable upon exercise of the Warrants. As to any particular
Registrable Security, once issued, such security shall cease to be one of the
Registrable Securities when (x) such security shall have been transferred to any
person pursuant to an effective registration statement, (y) such security shall
have been transferred to any person that is not an Affiliate (as defined in the
Exchange Act) of the initial Warrant Holder pursuant to Rule 144 (or any
successor provision) under the Securities Act and the shares thereupon become
freely tradeable, or (z) such security shall have ceased to be outstanding.
(d) REGISTRATION EXPENSES means all expenses
incident to the Company's performance of or compliance with the registration
rights herein, including, without limitation, all registration, filing, listing
and NASD fees, all fees and expenses of complying with securities or blue sky
laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, fees and expenses of Company's counsel and independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, and any fees
and disbursements of underwriters customarily paid by issuers and sellers of
securities; provided, however, that Registration Expenses shall not include fees
and expenses of counsel for the holders of Registrable Securities nor shall it
include underwriting discounts, commissions and transfer taxes, if any, relating
to the offer and sale of Registrable Securities, all of which shall be borne by
such holders.
(e) SECURITIES ACT means the Securities Act of
1933, as amended, or any successor act thereto, and the rules and regulations of
the Commission promulgated thereunder, all as the same shall be in effect at the
time.
7.2 REGISTRATION.
(a) COMPANY REGISTRATION. If (without any
obligation to do so) the Company proposes to register (including for this
purpose any registration effected by the Company for holders other than the
holders of Registrable Securities) any of its Common Stock or other securities
under the Securities Act in connection with the public offering of such
securities solely for cash (other than a registration on Forms S-4 or S-8 or
equivalent successor forms), then the Company shall, at such time, promptly give
all holders of Registrable Securities written notice of such registration. Any
such registration effected by the Company is referred to herein as a "Company
Registration." Upon the written request of such holders given within fifteen
(15) days after the giving of such notice by the Company, the Company shall,
subject to the provisions of Section 7.2(c) below, cause to be included in such
registration statement and registered under the Securities Act all of the
Registrable Securities that each such holder ("Participating Holders") has
requested to be registered.
(b) EXPENSES. The Company shall pay all
Registration Expenses
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incurred in connection with the registration of Registrable Securities pursuant
to Section 7.2(a).
(c) PRIORITY IN REQUESTED REGISTRATIONS.
If the Company Registration pursuant to Section 7.2(a) involves an underwritten
offering, and the managing underwriter shall advise the Company in writing, with
a copy to the Participating Holders that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company which are not Registrable Securities) exceeds the number which
can be sold in such offering; then, in the case of a Company Registration (x)
first, other securities to be sold for the account of the Company to be included
in the Company Registration, and (y) second, the Registrable Securities and
other securities of the Company entitled to similar registration rights, pro
rata, in proportion to the number of Registrable Securities and other securities
requested to be included in such registration statement.
7.3 REGISTRATION PROCEDURES.
(a) If and whenever the Company is required to
use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Section 7.2, the Company, as
expeditiously as possible and subject to the terms and conditions of Section
7.2, will:
(i) prepare and file with the
Commission the requisite registration statement to effect such registration and
use its best efforts to cause such registration to become effective;
(ii) furnish to each Participating
Holder such number of conformed copies of such registration statement and of
each such amendment and supplement thereto, such number of copies of the
prospectus contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under Rule
424 under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as each Participating Holder may
reasonably request;
(iii) immediately notify the
Participating Holders at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and at the request of the Participating Holders promptly prepare and
furnish to the Participating Holders a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and
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(iv) use its best efforts to list all
Registrable Securities covered by such registration statement on the securities
exchange, if any, on which the Common Stock is then listed.
(b) The Company may require each Participating
Holder to furnish the Company with such information and undertakings as it may
reasonably request regarding the holders requesting registration and the
distribution of such securities as the Company may from time to time reasonably
request in writing.
(c) Each Participating Holder agrees (A) that
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 7.3(a)(iii), such holder will forthwith discontinue
its disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until receipt by such Participating
Holder of the copies of the supplemented or amended prospectus contemplated by
subdivision (a)(iii) of this Section 7.3 and, if so directed by the Company,
will deliver to the Company all copies, other than permanent file copies, then
in such holder's possession of the prospectus relating to such Registrable
Securities at the time of receipt of such notice and (b) that it will
immediately notify the Company, at any time when a prospectus relating to the
registration of such Registrable Securities is required to be delivered under
the Securities Act, of the happening of any event as a result of which
information previously furnished by such Participating Holder to the Company in
writing for inclusion in such prospectus contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) Nothing in this Agreement to the contrary,
the Company will not be required to file such a registration statement with
respect to, or include in any registration statement, any Registrable Securities
if the Company obtains an opinion (in form and substance satisfactory to the
holder requesting registration) of counsel acceptable to the holder of such
Registrable Securities to the effect that the sale of the Registrable Securities
in the manner contemplated by such holder may be effected without registration
regardless of the identity or status of the buyer(s) of such Registrable
Securities and that such securities are freely tradeable.
7.4 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event
of any registration under the Securities Act pursuant to Section 7 hereof of any
Registrable Securities covered by such registration, the Company will, and
hereby does, indemnify and hold harmless the Participating Holders, their
directors and officers, each other person who participates as an underwriter in
the offering or sale of such securities (if so required by such underwriter as a
condition to including the Participating Holders' Registrable Securities in such
registration) and each other person, if any, who controls the Participating
Holders or any such underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities,
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joint or several, to which the Participating Holders or any such director or
officer or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained therein
or any document incorporated therein by reference, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse the Participating Holders
and each such director, officer, underwriter and controlling person for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Participating Holder
either specifically for inclusion therein or which the Company has informed the
Participating Holder will be used for such purposes; provided further that the
Company shall not be liable to any person who participates as an underwriter in
the offering or sale of Registrable Securities or any other person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such person's failure to
send or give a copy of the final prospectus to the person claiming an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
person if such statement or omission was corrected in such final prospectus.
(b) INDEMNIFICATION BY THE PARTICIPATING HOLDERS. The
Company may require, as a condition to including any Registrable Securities of
the Participating Holders in any registration statement filed pursuant to
Section 7, that the Company shall have received an undertaking satisfactory to
it from the Participating Holders to indemnify and hold harmless (in the same
manner and to the same extent as set forth in subdivision (a) of this Section
7.4) the Company, each director of the Company, each officer of the Company and
each other person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by the Participating Holders either
specifically for inclusion therein or which the Company has informed the
Participating Holders will be used for such purposes.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party
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16
of notice of the commencement of any action or proceeding involving a claim
referred to in the preceding subdivisions of this Section 7.4, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action,
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding subdivisions of this Section 7.4, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall consent to entry of any judgment or enter into any settlement
without the consent of the indemnified party which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subdivisions of this Section 7.4 (with appropriate
modifications) shall be given by the Company and the Participating Holders with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority, other than
the Securities Act.
(e) CONTRIBUTION. If the indemnification provided for in
this Section 7.4 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then the indemnifying party, to the extent such
indemnification is unavailable, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions that resulted in
such losses, claims, damages, liabilities or expenses. The relative fault of
such indemnifying party and indemnified parties shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution
-15-
17
pursuant to this Section 7.4(e) were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No person
guilty of fraudulent misrepresentation (within the meaning of Section 10(f) of
the Securities Act) shall be entitled to contribution from any person.
If indemnification is available under this Section 7.4, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections 7.4(a) and 7.4(b) without regard to the relative fault of
said indemnifying parties or indemnified party or any other equitable
consideration provided for in this Section 7.4(e).
SECTION 8. FRACTIONAL INTERESTS. The Company shall not be required
to issue fractional Warrant Shares on the exercise of the Warrant. If any
fraction of a Warrant Share would, except for the provisions of this Section 8,
be issuable on the exercise of the Warrant (or specified portion thereof), the
Company shall pay an amount in cash equal to the closing price for one share of
the Common Stock, as defined in paragraph (e) of Section 6.1, on the trading day
immediately preceding the date the Warrant is presented for exercise, multiplied
by such fraction.
SECTION 9. NO RIGHTS AS STOCKHOLDER; NOTICES TO HOLDER. Nothing
contained in this Agreement or in the Warrant shall be construed as conferring
upon the Holder or his permitted transferees the right to vote or to receive
dividends or to consent to or receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company.
SECTION 10. INSPECTION OF WARRANT AGREEMENT. The Company shall keep
copies of this Agreement and any notices given or received hereunder available
for inspection by the Holder during normal business hours at its principal
office.
SECTION 11. IDENTITY OF TRANSFER AND WARRANT AGENT. Forthwith upon
the appointment of any subsequent transfer agent for the Common Stock or Warrant
Agent, or any other shares of the Company's capital stock issuable upon the
exercise of the Warrant, the Company will notify the Holder of the name and
address of such subsequent transfer agent.
SECTION 12. NOTICES. Any notice pursuant to this Agreement by any
Holder to the Company, shall be in writing and shall be mailed first class,
postage prepaid, or delivered to the Company at its office at 1999 Avenue of the
Stars, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Chief Executive
Officer.
Each party hereto may from time to time change the address to
which notices to it are to be delivered or mailed hereunder by notice in writing
to the other party. Any notice mailed pursuant to this Agreement by the Company
or the Warrant Agent to the Holder shall be in writing and shall be mailed first
class, postage prepaid, or delivered to the Holder at his address on the books
of the Warrant Agent.
-16-
18
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to principles of conflict of laws. The parties hereto agree to submit to
the jurisdiction of the Courts of the State of California in any action or
proceeding arising out of or relating to this Agreement.
SECTION 14. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not be inconsistent with the provisions of the Warrant and which shall not
adversely affect the interests of the Holder.
SECTION 15. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 16. MERGER OR CONSOLIDATION OF THE COMPANY. So long as the
Warrant remains outstanding, the Company will not merge or consolidate with or
into, or sell, transfer or lease all or substantially all of its property to,
any other corporation unless the successor or purchasing corporation, as the
case may be (if not the Company), shall expressly assume, by supplemental
agreement, the due and punctual performance and observance of each and every
covenant and condition of this Agreement to be performed and observed by the
Company.
SECTION 17. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
and the Holder any legal or equitable right, remedy or claim under this
Agreement, but this Agreement shall be for the sole and exclusive benefit of the
Company and the Holder.
SECTION 18. CAPTIONS. The captions of the Sections of this
Agreement have been inserted for convenience only and shall have no substantive
effect.
SECTION 19. COUNTERPARTS. This Agreement may be executed in any
number of counterparts each of which so executed shall be deemed to be an
original; but such counterparts together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed as of the day, month and year first above written.
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THE COMPANY:
THE ▇▇▇▇▇▇ ENTERTAINMENT
COMPANY, a California corporation
By: [SIG]
--------------------------------------
Title: EVP
-----------------------------------
THE WARRANT AGENT:
THE ▇▇▇▇▇▇ ENTERTAINMENT
COMPANY, a California corporation
By: [SIG]
--------------------------------------
Title: EVP
-----------------------------------
THE WARRANT HOLDER:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------
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20
EXHIBIT A
Warrant Certificate
No. One 25,000 Shares
COMMON STOCK PURCHASE WARRANT
Void After 5:00 P.M.
Pacific Time on January 16, 2002
THIS CERTIFIES THAT, for value received, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the
registered holder of this Common Stock Purchase Warrant (the "Warrant") or
permitted assigns (the "Holder"), is entitled to purchase from The ▇▇▇▇▇▇
Entertainment Company, a California corporation (the "Company"), at any time
until 5:00 p.m. Pacific Time on January 16, 2002 (the "Expiration Date"), at the
purchase price of $10.00 per share (the "Warrant Price"), the number of shares
of Common Stock of the Company (the "Common Stock") which is equal to the number
of Shares set forth above. The number of shares purchasable upon exercise of
this Warrant and the Warrant Price per share shall be subject to adjustment from
time to time as set forth in the Warrant Agreement referred to below.
This Warrant is issued under and in accordance with a Warrant
Agreement, dated as of January 16, 1997, between the Company Agent and the
Warrant Holder and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which the Holder of this Warrant by acceptance
hereof consents. A copy of the Warrant Agreement may be obtained for inspection
by the Holder hereof upon written request to the Company.
This Warrant may be exercised in whole or in part by presentation of
this Warrant with the Purchase Form on the reverse side hereof duly executed and
simultaneous payment of the Warrant Price (subject to adjustment) at the
principal office of the Company in Los Angeles, California. Payment of such
price shall be payable at the option of the Holder hereof in cash or by
certified or official bank check or wire transfer. Terms relating to exercise of
Warrant is set forth more fully in the Warrant Agreement.
This Warrant may be exercised in whole or in part. Upon partial
exercise, a Warrant Certificate for the unexercised portion shall be delivered
to the Holder. No fractional shares will be issued upon the exercise of this
Warrant but the Company shall pay the cash value of any fraction upon the
exercise of the Warrant. This Warrant is transferable only in limited
circumstances as described in this Warrant Agreement at the office of the
Company in Los Angeles, California, in the manner and subject to the limitations
set forth in the Warrant Agreement.
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT
21
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). NO SALE OR OTHER DISPOSITION OR PLEDGE OF THESE SECURITIES OR
THE SECURITIES UNDERLYING THESE SECURITIES CAN BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN AVAILABLE
EXEMPTION FROM REGISTRATION."
The Holder hereof may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company. Any notice to the contrary
notwithstanding, and until such transfer on which books, the Company may treat
the Holder hereof as the owner for all purposes.
This Warrant does not entitle any Holder hereof to any of the rights of
a stockholder of the Company.
THE ▇▇▇▇▇▇ ENTERTAINMENT COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
Attest /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary
DATED: As of January 16, 1997
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22
EXHIBIT B
Warrant Certificate
No. Two 25,000 Shares
COMMON STOCK PURCHASE WARRANT
Void After 5:00 P.M.
Pacific Time on January 16, 2003
THIS CERTIFIES THAT, for value received, and subject to the Company's
prior written election, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the registered holder of this Common
Stock Purchase Warrant (the "Warrant") or permitted assigns (the "Holder"),
subject to vesting, is entitled to purchase from The ▇▇▇▇▇▇ Entertainment
Company, a California corporation (the "Company"), from and after January 1,
1998 through 5:00 p.m. Pacific Time on January 16, 2003 (the "Expiration Date"),
at the purchase price of $10.00 per share (the "Warrant Price"), the number of
shares of Common Stock of the Company (the "Common Stock") which is equal to the
number of Shares set forth above. The number of shares purchasable upon exercise
of this Warrant and the Warrant Price per share shall be subject to adjustment
from time to time as set forth in the Warrant Agreement referred to below.
This Warrant is issued under and in accordance with a Warrant
Agreement, dated as of January 16, 1997, between the Company Agent and the
Warrant Holder and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which the Holder of this Warrant by acceptance
hereof consents. A copy of the Warrant Agreement may be obtained for inspection
by the Holder hereof upon written request to the Company.
If vested, this Warrant may be exercised in whole or in part by
presentation of this Warrant with the Purchase Form on the reverse side hereof
duly executed and simultaneous payment of the Warrant Price (subject to
adjustment) at the principal office of the Company in Los Angeles, California.
Payment of such price shall be payable at the option of the Holder hereof in
cash or by certified or official bank check or wire transfer. Terms relating to
exercise of Warrant is set forth more fully in the Warrant Agreement.
This Warrant may be exercised in whole or in part. Upon partial
exercise, a Warrant Certificate for the unexercised portion shall be delivered
to the Holder. No fractional shares will be issued upon the exercise of this
Warrant but the Company shall pay the cash value of any fraction upon the
exercise of the Warrant. This Warrant is transferable only in limited
circumstances as described in this Warrant Agreement at the office of the
Company in Los Angeles, California, in the manner and subject to the limitations
set forth in the Warrant Agreement.
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT
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23
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). NO SALE OR OTHER DISPOSITION OR PLEDGE OF THESE SECURITIES OR
THE SECURITIES UNDERLYING THESE SECURITIES CAN BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN AVAILABLE
EXEMPTION FROM REGISTRATION."
The Holder hereof may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company. Any notice to the contrary
notwithstanding, and until such transfer on which books, the Company may treat
the Holder hereof as the owner for all purposes.
This Warrant does not entitle any Holder hereof to any of the rights of
a stockholder of the Company.
THE ▇▇▇▇▇▇ ENTERTAINMENT COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
Attest /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary
DATED: As of January 16, 1997
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Exhibit C
PURCHASE FORM
Mailing Address
-------------------------------------- ------------------------------------
-------------------------------------- ------------------------------------
-------------------------------------- ------------------------------------
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant for, and to purchase thereunder,
_______________ shares of the stock provided for therein, and tenders herewith
payment of the purchase price in full in the form of cash or by cashier's check
in the amount of $_________________.]
The undersigned requests that certificates for such shares be issued in
the name of:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print Name, Address and Social Security No.)
DATED: , ______
Name of Warrant Holder or Permitted Assignee:
--------------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Signature:
----------------------------------------------------------------------
Signature Guaranteed: Note: The above signature must correspond with
the name as written upon the face of this
Warrant Certificate in every particular,
without alteration or enlargement or any
change whatever, unless this Warrant has
been assigned.
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