EXHIBIT 10.7
THIS WARRANTS REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE WARRANTS
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED, OR UNLESS SOLD PURSUANT TO RULE 144 (K) OF SUCH
ACT.
WARRANT AGREEMENT
This WARRANT AGREEMENT ("Agreement") is made as of ___________,1999,
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between HOB Entertainment, Inc., a Delaware corporation (the "Company"), and
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________________ (together with its permitted assigns, the "Holder").
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RECITALS
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WHEREAS, the Company deems it advisable to issue in consideration for the
benefits provided to the Company by Holder to issue to Holder warrants (the
"Warrants") represented and evidenced by this Agreement entitling Holder to
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purchase an aggregate of ___________ shares of Common Stock of the Company,
$.0001 par value (such shares of Common Stock issuable upon exercise of the
Warrants are referred to as the "Warrant Shares"), with each such Warrant being
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exercisable initially for one Warrant Share, subject to adjustment and on the
terms provided for herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereto agree as follows:
ARTICLE 1. Issuance And Delivery Of Warrants.
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Section 1.01. Issuance of Warrants. To be effective as of the date
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first written above (the "Effective Date", the Company does hereby grant to
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Holder or its assignees (who shall be persons to whom Warrants could be
transferred under Section 5.01), Warrants to acquire up to _________ Warrant
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Shares.
ARTICLE 2. Duration and Exercise of Warrants.
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Section 2.01. Duration of Warrants. Subject to Section 4.03 hereof,
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the Warrants represented hereby may be exercised at any time on or after the
Effective Date and shall remain exercisable until the close of business on the
tenth anniversary of the Effective Date (the "Termination Date"); provided,
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however, that if the Termination Date provided for herein shall fall on a
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Saturday, Sunday or legal holiday, then such Termination Date shall be deemed
to be the first regular business day following such Saturday, Sunday or legal
holiday.
Section 2.02. Terms of Exercise. Each Warrant shall entitle the holder
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thereof to purchase one (1) Warrant Share upon payment of $.01 per share,
each as adjusted as provided in Article 3. Such price, as in effect from time
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to time as provided in Article 3, is referred to as the "Exercise Price." In
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no event may Holder exercise any Warrant represented hereby (before or after
any adjustment or substitution pursuant to Article 3 hereof) for a fraction of
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a share.
Section 2.03. Exercise of Warrants
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(a) All or any portion of such Warrants may be exercised by surrendering
this Agreement, together with a subscription in the form attached hereto duly
executed, accompanied by payment of the Exercise Price. Such Agreement and
subscriptions may be surrendered at the corporate headquarters of the Company
(as set forth in Section 9.02, or as such address may be changed from time to
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time) or, if the Company so notifies the Holder hereafter, at the office of any
transfer agent for the Common Stock appointed hereafter. The payment and
subscription materials shall be accompanied by such other instruments or
agreements duly signed by Holder as may be reasonably necessary or advisable in
order that the issuance of such Warrant Shares comply with applicable rules and
regulations under the Securities Act, any applicable state securities laws or
any requirement of any national securities exchange on which Common Stock may be
traded.
(b) Payment shall be made either: (1) by cash, money order, certified or
bank cashier's check drawn in United States currency and payable to the order of
the Company; (2) by wire transfer; (3) by cashless exercise pursuant to Section
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2.03(c), ("Cashless Exercise") or (4) any combination of the foregoing at the
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option of the Holder.
(c) In lieu of paying the Exercise Price in cash, the Holder may utilize a
Cashless Exercise. A Holder is permitted to exercise Warrants pursuant to a
Cashless Exercise by directing the Company to withhold from the Warrant Shares
issuable upon such exercise a number of Warrant Shares having an aggregate Fair
Market Value (as defined herein) equal to the aggregate Exercise Price for all
Warrants exercised.
(d) Warrants shall be exercisable during the period provided in Section
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2.01 at any time in whole or from time to time in part. As soon as practicable
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after any of the Warrants have been so exercised, the Company shall issue and
deliver or cause to be delivered to, or upon the order of, the Holder, in such
name or names as may be directed by Holder, a certificate or certificates for
the number of full Warrant Shares to which Holder is entitled, and if the
Warrants represented by the surrendered Agreement shall not have been exercised
in full, a new Warrant Agreement, for the remaining number of Warrants which
shall not have been exercised (however, to the extent such a new Warrant
Agreement is issued for such remaining number of Warrants on the same terms and
conditions as set forth herein, such replacement Warrant Agreement may be
unilaterally executed and delivered by the Company, without need for Holder's
signature). In connection with such exercise, the Company shall use its best
efforts to cause its transfer agent to deliver the shares, as provided herein,
on a timely basis in order to permit settlement of a normal brokerage
transaction within three business days of the exercise.
Section 2.04. Common Stock Issued upon Exercise of Warrants.
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(a) All Warrant Shares shall be duly authorized, validly issued, fully
paid and nonassessable. The Company shall pay all documentary stamp taxes
attributable to the initial issuance of Warrant Shares. The Company shall not
be required, however, to pay any tax imposed in connection with any transfer
involved in the issue of the Warrant Shares in a name other than that of the
Holder. In such case, the Company shall not be required to issue any
certificate for Warrant Shares until the person or persons requesting the same
shall have paid to the Company the amount of any such tax or shall have
established to the Company's satisfaction that the tax has been paid or that no
tax is due. The Company shall at all times reserve and keep available such
number of shares of its authorized but unissued Common Stock as shall from time
to time be sufficient to permit the exercise of all outstanding Warrants
represented hereby. If at any time the number of authorized but unissued shares
of Common Stock shall
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not be sufficient for such purpose, the Company shall take such action as may
reasonably be necessary to increase its authorized but unissued Common Stock to
such number of shares as shall be sufficient for such purpose. The Company will
not take any actions or enter into any agreements which will frustrate or
interfere with the timely exercise and performance under this Warrant.
(b) Each stock certificate shall carry such appropriate legend, and such
written instructions shall be given to the Company's transfer agent, as may be
reasonably necessary or advisable to satisfy the requirements of the Securities
Act of 1933, as amended (the "Securities Act") or any state securities laws.
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Neither Holder nor its legal representative shall be or have any of the rights
or privileges of a stockholder of the Company in respect to any of the Warrant
Shares unless and until certificates representing such shares shall have been
issued and delivered to Holder.
ARTICLE 3. Anti-Dilution Provisions.
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Section 3.01. Adjustment of Exercise Price and Number of Warrant Shares.
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The Exercise Price shall be subject to adjustment from time to time as
provided in this Article 3. Upon each adjustment of the Exercise Price, the
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Holder shall be entitled to purchase pursuant hereto, at the Exercise Price
resulting from such adjustment, the number of Warrant Shares obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of Warrant Shares purchasable pursuant to the aggregate number of
unexercised Warrants represented by this Agreement immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
Section 3.02. Adjustment in the Event of Certain Issuances.
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(a) Upon Issuance of Common Stock for Less Than Fair Market Value. If the
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Company shall issue or sell, or be deemed to issue and sell in accordance with
Section 3.02(c) hereof, after the date hereof, shares of its Common Stock
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without consideration or at a price per share less than the Fair Market Value
(as determined in accordance with Section 3.02(c) hereof) of the Common Stock on
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the date of such issuance or sale, then in each such case, the Exercise Price in
effect immediately prior to such issuance or sale shall be lowered so as to be
equal to an amount determined by multiplying the Exercise Price in effect
immediately prior to such issuance or sale by a fraction, the numerator of which
shall be the sum of the number of shares of Common Stock outstanding (or deemed
outstanding in accordance with Section 3.02(d)(i) hereof) immediately prior to
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such issuance or sale and the number of shares of Common Stock which the
aggregate consideration received (or deemed received in accordance with Section
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3.02(c) hereof) by the Company for such issuance or sale would purchase at such
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Fair Market Value per share of Common Stock, and the denominator of which shall
be the number of shares of Common Stock outstanding (or deemed outstanding in
accordance with Section 3.02(c) hereof) immediately after such issuance or sale.
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Such adjustment shall be made successively whenever the Company issues shares of
its Common Stock without consideration or at a price per share less than the
Fair Market Value. If both this Section and Section 3.02(b) are applicable to
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an issuance, then the Section which provides the adjustment to the Exercise
Price most favorable to the Holder shall apply and be applicable to such
issuance.
(b) Upon Issuance of Common Stock for Less Than Designated Value.
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Subject to the last sentence of Section 3.02(a), if the Company shall issue or
sell, or be deemed to issue and sell in accordance with Section 3.02(c) hereof,
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after the hereof, shares of its Common Stock without consideration or at a
price per share less than $1.62 per share, as equitably adjusted for any stock
split, stock dividend, combination, reclassification or like event affecting the
Common Stock after the date
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hereof (the "Designated Value") of the Common Stock on the date of such issuance
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or sale, then in each such case, the Exercise Price in effect immediately prior
to such issuance or sale shall be lowered so as to be equal to an amount
determined by multiplying the Exercise Price in effect immediately prior to such
issuance or sale by a fraction, the numerator of which shall be the sum of the
number of shares of Common Stock outstanding (or deemed outstanding in
accordance with Section 3.02(c) hereof) immediately prior to such issuance or
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sale and the number of shares of Common Stock which the aggregate consideration
received (or deemed received in accordance with Section 3.02(c) hereof) by the
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Company for such issuance or sale would purchase at such Designated Value per
share of Common Stock, and the denominator of which shall be the number of
shares of Common Stock outstanding (or deemed outstanding in accordance with
Section 3.02(c) hereof) immediately after such issuance or sale. Such adjustment
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shall be made successively whenever the Company issues shares of its Common
Stock without consideration or at a price per share less than the Designated
Value.
(c) Upon Issuance of Warrants, Options and Rights to Purchase Common
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Stock.
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(i) For the purpose of this Section 3.02, the issuance of any
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warrants, options, subscriptions or purchase rights with respect to shares
of Common Stock and the issuance of any securities convertible into,
exercisable for or exchangeable for shares of Common Stock (or the issuance
of any warrants, options or any rights with respect to such convertible or
exchangeable securities) shall be deemed an issuance of such Common Stock
at such time if the Net Consideration Per Share (as hereinafter defined)
which may be received by the Company for such Common Stock shall be less
than the Fair Market Value or the Designated Value, as the case may be, of
the Common Stock on the date of such issuance. Any obligation, agreement
or undertaking to issue warrants, options, subscriptions or purchase rights
at any time in the future shall be deemed to be an issuance at the time
such obligation, agreement or undertaking is made or arises. No adjustment
of the Exercise Price shall be made under this Section 3.02 upon the
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issuance or deemed issuance of any shares of Common Stock which are issued
pursuant to the exercise of any warrants, options, subscriptions or
purchase rights or pursuant to the exercise of any conversion or exchange
rights with respect to any convertible securities if an adjustment shall
previously have been made upon the issuance of such warrants, options or
subscriptions or purchase rights or upon the issuance of such convertible
securities (or upon the issuance of such warrants, options or any rights
therefor), as the case may be, as above provided.
(ii) Should the Net Consideration Per Share of any such warrants,
options, subscriptions or purchase rights or convertible securities be
decreased or increased from time to time then, upon the effectiveness of
each such change, the Exercise Price shall be adjusted to such Exercise
Price as would have resulted (1) had the adjustments made upon the issuance
of such warrants, options, rights or convertible securities been made upon
the basis of the actual Net Consideration Per Share of such securities, and
(2) had the adjustments made to the Exercise Price since the date of
issuance of such securities been made to the Exercise Price as adjusted
pursuant to (1) above. Any adjustment of the Exercise Price with respect
to this Section 3.02 which relates to warrants, options, subscriptions or
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purchase rights with respect to shares of Common Stock shall be disregarded
if, as, and when all of such warrants, options, subscriptions or purchase
rights expire or are canceled without being exercised, so that the Exercise
Price effective immediately upon such cancellation or expiration shall be
equal to the Exercise Price which would have been in effect at the time of
such cancellation or expiration had the expired or canceled warrants,
options, subscriptions or purchase rights not been issued.
(d) Certain Definitions. For purposes of this Section 3.02, the following
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terms shall have
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the following meanings:
(i) The "Fair Market Value" of a share of Common Stock as of a
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particular date shall mean:
(x) If the Company is subject to the reporting obligations under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
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pursuant to Section 12 or Section 15(d) of such Exchange Act, or if a
registration under the Securities Act of 1933, as amended, covering an
initial underwritten public offering of such capital stock of the Company
has been declared effective by the U.S. Securities and Exchange Commission
and consummated, then the "Fair Market Value" of the Common Stock shall be
deemed to be the average of the reported last sale price (or reported
closing bid price, if last sale data is not reported for such security) for
the five consecutive business day period ending with the last business day
immediately prior to the date such determination is made as reported by the
principal national securities exchange or automated quotation system on
which such security is then traded (as measured by average daily volume of
trading in such security during such five business day period); and
(y) In all other cases, the "Fair Market Value" of the Common
Stock shall be determined in good faith by the Board of Directors of the
Company upon review of the relevant factors; provided, however, that if the
date of such determination falls within five business days prior to the
effective date of a registration statement for an initial public offering
of Common Stock, the Fair Market Value of a share of Common Stock included
in such registration statement will be deemed to be the per share public
offering price, less the aggregate underwriting discount, provided for in
such registration statement; and provided further, however, that if, within
60 days after receipt of the first notice of the issuance of any security
in one or a series of related transactions in which the aggregate
consideration received (or deemed received in accordance with Section
3.02(c)) exceeds $1.0 million and the holders of 30% or more of the
Warrants issued pursuant to the Stock Purchase Agreement, dated as of July
__, 1999, notify the Company of their reasonable belief that the "Fair
Market Value" of the Common Stock as so determined by the Board of
Directors above is less than the actual fair market value of the Common
Stock, then the "Fair Market Value" of the Common Stock shall be determined
by a nationally recognized investment banking firm selected by the Company.
(ii) The "Net Consideration Per Share" which may be received by the
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Company shall mean the amount equal to the total amount of consideration, if
any, received by the Company for the issuance of such, warrants, options,
subscriptions or other purchase rights or convertible or exchangeable securities
(taking into consideration appropriate allocations of consideration if
securities are issued in units or are otherwise issued with other securities or
property), plus the minimum amount of consideration, if any, payable to the
Company upon exercise or conversion thereof, divided by the maximum aggregate
number of shares of Common Stock that would be issued if all such warrants,
options, subscriptions or other purchase rights or convertible or exchangeable
securities were exercised, exchanged or converted.
(e) Consideration Other than Cash. For purposes of this Section 3.02, if a
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part or all of the consideration received by the Company in connection with the
issuance of shares of the Common Stock
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or the issuance of any of the securities described in this Section 3.02 consists
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of property other than cash, such consideration shall be deemed to have a fair
market value as is reasonably determined in good faith by the Board of Directors
of the Company.
(f) Events Not Requiring an Adjustment. Notwithstanding the provisions
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of this Section 3.02, no adjustment of the Exercise Price or the number of
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Warrant Shares shall be required with respect to any issuances to which
Section 3.03 or Section 3.04 are applicable and with respect to the items
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specified in Article Four, Section 5(a)(iv)(A)(4) of the Second Amended and
Restated Certificate of Incorporation the Company as in effect on the date
hereof.
Section 3.03. Stock Dividends. If the Company shall declare a dividend
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or any other distribution upon any capital stock which is payable in shares of
Subject to Section 4.03 hereof, the Common Stock, the Exercise Price and
Designated Value shall be reduced to the quotient obtained by dividing (i) the
number of shares of Common Stock outstanding immediately prior to such
declaration multiplied by the then effective Exercise Price or Designated Value,
respectively, by (ii) the total number of shares of Common Stock outstanding
immediately after such declaration.
Section 3.04. Stock Splits and Reverse Stock Splits. If the Company shall
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subdivide its outstanding shares of Common Stock into a greater number of
shares, the Exercise Price and Designated Value shall be proportionately reduced
and the number of Warrant Shares issuable upon exercise of the Warrants
represented hereby shall be proportionately increased. If the Company shall
combine the outstanding shares of Common Stock into a smaller number of shares,
the Exercise Price and Designated Value shall be proportionately increased and
the number of Warrant Shares issuable upon exercise of the Warrants represented
hereby shall be proportionately decreased.
Section 3.05. Notice of Change in Shares Issuable, etc. Whenever the
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securities issuable or deliverable upon exercise of the Warrants is changed
pursuant to this Article 3, the Company shall mail a notice of such change to
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Holder at the address registered with the Company. Failure to file such
statement or to publish such notice, or any defect in such statement or notice,
shall not affect the legality or validity of any such change. Such notice shall
be accompanied by a certificate executed by the Company's chief financial
officer, setting forth in reasonable detail the facts requiring the change and
specifying the effective date of such change and the number or amount of, and
describing the shares or other securities issuable or deliverable in exchange
for, the Warrants as so changed.
Section 3.06. Limitations on Adjustment. Except in the case of a reverse
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stock split or similar recapitalizing transaction, the Exercise Price shall not
be increased as a result of any adjustments set forth in this Article 3 above
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the Exercise Price which would be in effect had no adjustment ever been made to
the Exercise Price in accordance with the terms of this Warrant with respect to
the Common Stock, options or convertible securities for which the adjustment in
question is being made.
Section 3.07. Good Faith. If any event occurs as to which in the
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reasonable opinion of the Board of Directors of the Company, in good faith, the
other provisions of this Article 3 are not strictly applicable but the lack of
any adjustment in the Warrant Shares would not in the opinion of the Board of
Directors of the Corporation fairly protect the exercise rights of the holders
of the Warrants, in accordance with the basic intent and principles of such
provisions, then the Board of Directors of the Corporation shall appoint a firm
of independent certified public accountants (which may be the regular auditors
of the Company) of recognized national standing, which shall give their opinion
upon the adjustment, if any, to the Exercise Price and/or Warrant Shares, as the
case may be, on a basis consistent with the basic intent and principles of this
Article 3, necessary to preserve, without dilution, the exercise
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rights of all the registered holders of the Warrants in accordance with this
Agreement.
To be included in initial Senior Preferred Stock Warrants Only:
[Section 3.08. Special Adjustment Related to Preemptive Rights Offering.
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The number of Warrant Shares shall be adjusted (the "Special Financing
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Adjustment") upon the completion by the Company of the Preemptive Rights
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Offering (the "Preemptive Offering") provided for in Section 8 of the Amended
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and Restated Stockholders Agreement, dated as of _________, 1999, and related
to the Stock Purchase Agreement, dated as of _________, 1999, pursuant to which
the Class D-2 Preferred Stock, 12% Senior Redeemable Preferred Stock and Senior
Convertible Preferred Stock of the Company were originally issued. The Special
Financing Adjustment will be equal to the amount arrived at by multiplying the
number of Warrant Shares then issuable pursuant to the exercise of this Warrant
Agreement in full by the percentage dilution caused by the Preemptive Offering
(the "Adjustment Factor"). The Adjustment Factor will be equal to a fraction
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wherein the numerator is the number of common stock equivalents issued in the
Preemptive Offering and the denominator is the number of common stock
equivalents of the Company outstanding immediately prior to the closing of the
Preemptive Offering. The Warrant Shares represented by the Special Financing
Adjustment will be evidenced by an additional warrant agreement, substantially
identical to this Warrant Agreement (except that this Section 3.08 shall not be
included in such warrant agreement, and for purposes of the anti-dilution
adjustment provisions, such warrant agreement shall be deemed to have been
issued on the date of this Warrant Agreement). The adjustment made by this
Section 3.08 shall be made only once, and once made and documented by delivery
of the related warrant agreement, this Section shall be extinguished.]
ARTICLE 4. Rights; Liquidation, Merger, etc.
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Section 4.01. Subscription or Purchase Rights. If at any time the
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Company grants, issues or Sells any options, convertible securities or rights to
purchase stock, warrants, securities or other property pro rata to the record
holders of Common Stock (the "Purchase Rights"), then the Holder of this
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Warrant will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which such Holder could have acquired if
such Holder had held the number of Warrant Shares issuable upon complete
exercise of this Warrant immediately before the date on which a record is taken
for the grant, issuance or sale of such Purchase Rights, or, if no such record
is taken, the date as of which the record holders of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
Section 4.02. Notice to Holder. If, at any time after the date hereof:
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(a) the Company shall authorize the distribution to all holders of Common
Stock of evidence of its indebtedness, assets (other than Common Stock (for
which adjustment is provided in Section 3.03 hereof) or cash dividends or cash
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distributions payable out of current earnings, retained earnings or earned
surplus or dividends payable in Common Stock);
(b) there shall be proposed any consolidation or merger to which the
Company is to be a party and for which approval of the holders of Common Stock
is required, or the conveyance or transfer of the properties and assets of the
Company substantially as an entirety;
(c) there shall be proposed any capital reorganization or reclassification
(other than a subdivision or combination of shares, stock dividend,
consolidation, merger, or conveyance or transfer of
7
assets provided for elsewhere herein); or
(d) there shall be proposed the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
the Company shall cause to be given to Holder at the address registered with the
Company, by first-class mail, postage prepaid, a written notice stating (i) the
date as of which the holders of record of shares of Common Stock to be entitled
to receive any such distributions are to be determined or (ii) the date on which
any consolidation, merger, conveyance, transfer, reorganization,
reclassification, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of record of
shares of Common Stock shall be entitled to exchange the shares for securities
or other property, if any, deliverable upon the consolidation, merger,
conveyance, transfer, reorganization, reclassification, dissolution, liquidation
or winding up. Such notice shall be filed and mailed in the case of a notice
pursuant to clause (i) above at least 10 calendar days before the record date
specified and, in the case of a notice pursuant to clause (ii) above, at least
20 calendar days before the earlier of the dates specified. Any notice pursuant
to clause (ii) above shall also state whether or not unexercised Warrants will
become void as provided in the last sentence of Section 4.03.
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Section 4.03. Expiration Date of Warrants or Limitations of Rights.
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From the time notice is required to be given pursuant to Section 4.02,
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the Holder shall be entitled to exercise the Warrants represented hereby,
effective immediately prior to the transaction described in the notice, at the
Exercise Price then in effect. For any transaction pursuant to Section 4.02(b)
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in which the Company is not the surviving or acquiring entity and Holder does
not exercise all of the Warrants, the Company shall use reasonable efforts to
negotiate to cause the surviving or acquiring entity to assume the obligation
represented by such Warrants so as to insure that each Holder will thereafter
have the right to acquire and receive in lieu of or addition to the shares of
Common Stock immediately theretofore acquirable and receivable upon exercise of
such Warrants, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for the number of shares of Common Stock
immediately theretofore acquirable and receivable upon exercise of such Warrants
had such transaction not taken place. As to any transaction specified in
Section 4.02(b) above in which the Company shall not be the surviving or
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acquiring party and in which the Company is unable to negotiate the assumption
of the obligations represented by the Warrants by the acquiring or surviving
entity (and the Company has used its reasonable efforts to negotiate such
assumption), or in which the Company shall have disposed of substantially all of
its assets, or any transaction specified in Section 4.02(b), the right to
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exercise the Warrants shall expire at the close of business on the later of the
dates specified in such notice as the date on which any consolidation, merger,
conveyance, transfer, reorganization, reclassification, dissolution, liquidation
or winding up is expected to become effective and the date as of which it is
expected that holders of record of shares of Common Stock shall be entitled to
exchange such shares for securities or other property, if any, deliverable upon
the consolidation, merger, conveyance, transfer, reorganization,
reclassification, dissolution, liquidation or winding up. Any Warrant not so
exercised in such cases shall become void and all rights under this Warrant
Agreement shall cease.
ARTICLE 5. Transfer of Ownership of Warrants.
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Section 5.01. Negotiability and Ownership. The Warrants represented
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hereby shall not be transferable by the Holder or his permitted assigns during
their term except (a) to persons who demonstrate to the reasonable satisfaction
of the Company that they are "accredited investors" within the meaning of
Regulation D promulgated under the Securities Act and who deliver to the Company
warranties and representations substantially to the same effect as those set
forth in Section 6.02 hereof or
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otherwise reasonably appropriate to demonstrate compliance with the Securities
Act, (b) in the case of an individual, pursuant to such individual's last will
and testament or the laws of descent and distribution, or (c) to any underwriter
in connection with an underwritten public offering in which such Warrants will
be exercised by such underwriters prior to or concurrently with the sale of the
Warrant Shares to the public and, in any of the foregoing cases, only in
compliance with the Securities Act. Any attempted transfer in contravention of
this Section 5.01 shall be null and void. Any such transferee may be required to
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execute an investment letter containing representation and warranties as to his
or her investment intent, financial sophistication and ability to bear the risk
of any investment in the Warrants or the Warrant Shares, and containing
substantially similar warranties and representations to those contained in
Section 6.02 hereof before any such transfer shall be given effect. Further, the
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Company may condition any such transfer on the execution by the transferee of a
joinder agreement to the Company's Amended and Restated Registration Rights
Agreement in the same form as was binding against the Holder who transferred
such Warrants.
ARTICLE 6. Warranties and Representations.
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Section 6.01. Company's Representations, Warranties. The Company
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represents and warrants to the Registered Holder that:
(a) The Company has full power and authority to enter into this Agreement,
and to issue and deliver this Agreement and the Warrant Shares upon exercise of
the Warrants, and to incur and perform fully the obligations provided herein,
all of which have been duly authorized by all necessary corporate action, upon
exercise in accordance with the terms hereof, the Warrant Shares issued upon
such exercise will be validly issued, fully paid and non-assessable;
(b) This Agreement has been duly executed and delivered and is the valid
and binding obligation of the Company enforceable in accordance with its terms;
(c) The Company has obtained all necessary consents prior to the execution
and delivery of this Agreement and the performance by the Company of this
Agreement in accordance with its terms and conditions will not: (i) require the
approval or consent of any governmental or regulatory body whether federal,
state, local or foreign or the approval or consent of any other person, or (ii)
conflict with or result in any breach or violation of any of the terms and
conditions of, or constitute (with notice or lapse of time or both) a default
under any certificate of incorporation, by-law, statute, regulation, order,
judgment or decree of or applicable to the Company, or any instrument, contract
or other agreement to which the Company is a party or by or to which the Company
is bound or subject; and
(d) There are no preemptive rights with respect to the issuance and sale of
the Warrants or the Warrant Shares which have not been waived or previously
satisfied.
Section 6.02. Investment Warranties and Representations. In connection
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with the acquisition of the Warrants, and with the understanding that warranties
and representations of similar effect hereto may be required to be made by any
holder of the Warrants in connection with the exercise thereof, Holder hereby
makes the following representations to the Company in order that the Company may
rely on such representations in connection with the issuance and sale of the
Warrants and/or the Warrant Shares:
9
(a) Holder is at present financially able to bear the economic risks
of an investment in the Warrants or the Warrant Shares of the Company and
has no need for liquidity in this investment.
(b) Holder has received no public solicitation or advertisement and
has attended no public seminar or meeting regarding investment in the
Company, nor is Holder aware of any such public solicitation, advertisement
or meeting.
(c) The Warrants have been, and, if the Warrants are exercised, the
Warrant Shares will be, acquired for the account of Holder for investment
and not with a view to resale or further distribution thereof in
contravention of applicable law.
(d) Holder has no contract, undertaking, arrangement or agreement
with any person to sell or transfer or to have any person sell for Holder
all or any of the Warrants or Warrant Shares and is aware of and agrees to
the restrictions on transferability of the Warrants imposed by Section 5.01
------------
hereof.
(e) Prior to any exercise of the Warrants, Holder understands and
agrees that it may be required to represent and provide such reasonably
satisfactory evidence thereof as the Company may require that he is an
"accredited investor" within the meaning of Regulation D promulgated by the
Securities and Exchange Commission.
(f) Holder is knowledgeable in and experienced with respect to
investments in general and with respect to investments of a nature similar
to an investment in the Company. By reason of such knowledge and
experience, Holder is capable of evaluating the merits and risks of, and
making an informed business decision with regard to, an investment in the
Company.
(g) Holder (i) received all the information that Holder deemed
necessary to make an informed investment decision with respect to an
investment in the Company, (ii) has had the unrestricted opportunity to
make such investigation as Holder desired pertaining to the Company and an
investment therein to verify the information previously furnished to
Holder; and (iii) has had the opportunity to ask questions of the Company's
representatives concerning the Company.
(h) Holder hereby consents to the placement of a legend on any
certificate evidencing the Warrants or Warrant Shares, which legend shall
be in form substantially as set forth at the top of this Agreement.
(i) Holder also consents to the placement of a "stop order" on the
stock transfer books of the Company to enforce the restrictions set forth
in the above-mentioned legend. Holder further indemnifies and agrees to
hold the Company harmless from and against all loss, liabilities,
obligations and costs arising out of or related to the resale or
distribution by Holder of all or any portion of the Warrants and Warrant
Shares under such circumstances as to bring the issuance, sale or transfer
of the Warrants and Warrant Shares within the provisions of Section 5 of
the Securities Act unless a Registration Statement under the Securities Act
is in effect as to the Warrants or Warrant Shares or unless an opinion of
counsel satisfactory to the Company is delivered opining that an exemption
from such registration requirements is available for any such sale or
transfer.
10
(j) Holder realizes that the Warrants and Warrant Shares have not been
registered under the Securities Act by reason of a specific exemption under
the provisions of the Securities Act which depends upon the investment
intent of the undersigned. Therefore, the Warrants and Warrant Shares are
"restricted securities" as that term is defined in Securities and Exchange
Commission Rule 144 ("Rule 144"), and accordingly, must be held
--------
indefinitely unless they are subsequently registered under the Securities
Act, or an exemption from such registration is available.
(k) Holder realizes that Rule 144, which provides an exemption from
registration under the Securities Act, merely permits the sale of limited
amounts of Warrants and Warrant Shares in accordance with the terms and
conditions set forth in Rule 144. One such condition at present is that
the Warrants and Warrant Shares not be sold until such time as they have
been held for at least two (2) years from the date of purchase (one (1)
year if the Company becomes subject to the Exchange Act). Holder further
understands that the availability of Rule 144 is dependent upon adequate
current public information, with respect to the Company, being available
and that such information is not currently available and there is no
guarantee that such information will be available at any further time.
Holder further understands that, except as otherwise provided in the
Registration Rights Agreement, the Company is under no obligation to make
such information publicly available, to supply Holder with information
necessary to sell the Warrants or Warrant Shares under Rule 144, to
register the Warrants and Warrant Shares under the Securities Act, or to
otherwise comply with any exemption under the Securities Act.
ARTICLE 7. No Impairment. The Company will not, by any voluntary action,
-------------
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Agreement and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder of this Agreement against impairment.
ARTICLE 8. Reports. Upon request, the Company shall deliver to the Holder
-------
copies of all reports or notices distributed or made generally available to all
of the Company's stockholders, when and as such reports or notices are delivered
to the stockholders.
ARTICLE 9. Miscellaneous Provisions.
------------------------
Section 9.01. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of Delaware.
Section 9.02. Notices. Any notice pursuant to this Agreement to be
-------
given to the Company or Holder shall be sufficiently given if sent by first-
class mail, postage prepaid, addressed (until another address is filed in
writing by the Holder or the Company until the Company designates a transfer
agent as the appropriate recipient of certain types of notice to it contemplated
hereby) as follows:
If to the Company:
HOB Entertainment, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
11
and to Holder at its address set out on the signature page hereto, or such other
address as may be furnished in writing to the Company from time to time
hereafter. All such notices, requests, demands and other communication shall,
when mailed (registered or certified mail, return receipt requested, postage
prepaid), personally delivered, or telegraphed, be effective four days after
deposit in the mails, when personally delivered, or when delivered to the
telegraph company, respectively, addressed as aforesaid, unless otherwise
provided herein and, when telecopied, shall be effective upon actual receipt.
Section 9.03. Amendments. The provisions of this Agreement may be amended
----------
only by the written agreement of the Company and the Holder.
Section 9.04. Successor. All the covenants and provisions of this
---------
Agreement by or for the benefit of the Company or Holder shall bind and inure
to the benefit of their respective successors and assigns hereunder.
Section 9.05. Theft, Loss, Destruction. Upon receipt by the Company
------------------------
of evidence reasonably satisfactory to it (an affidavit of the Registered Holder
will be satisfactory) of the loss, theft, destruction or mutilation of this
Agreement, and, in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it, the Company will make and deliver a new Agreement
of like tenor, in lieu of this Agreement.
Section 9.06. Benefits of this Agreement. Nothing in this Agreement shall
--------------------------
be construed to give to any person or Company other than the Company and the
Holder any legal or equitable right, remedy or claim under this Agreement. This
Agreement shall be for the sole and exclusive benefit of the Company and such
Holder.
Section 9.07. Headings. The section headings herein are for convenience
--------
only and are not part of this Agreement and shall not affect the
interpretation hereof.
(Signature Page Follows)
12
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be duly executed, all as of the day and year first above written.
HOB ENTERTAINMENT, INC.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
HOLDER:
-------------------------------
(if applicable) By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Address for Notice:
-------------------
13
(SUBSCRIPTION FORM TO BE EXECUTED UPON EXERCISE OF
SOME OR ALL OF THE WARRANTS)
The undersigned, registered holder or assignee of such registered Holder of
the within Agreement, hereby:
(a) subscribes for ___ shares of Common Stock which the undersigned is
entitled to purchase under the terms of the within Agreement, (b) makes the
full cash payment therefor called for by the within Agreement or elects a
Cashless Exercise as provided therein, and (c) directs that the Common
Stock issuable upon exercise of said Warrants be issued as described
hereunder.
In addition, the undersigned acknowledges that he or she may be required to
make the representations and warranties contained in Section 6.02 of the
------------
attached Agreement prior to HOB Entertainment, Inc.'s acceptance of this
subscription.
--------------------------
(Name)
--------------------------
(Address)
--------------------------
SIGNATURE
Dated:
----------------------
................................................................................
NOTICE: The signature on this subscription form must correspond with the
name of the Holder as indicated in the attached Warrant Agreement, in every
particular, without alteration or enlargement, or any change whatsoever,
and must be guaranteed by a bank or trust company having an office or
correspondent in New York, New York, or by a firm having membership on a
registered national securities exchange.
