EXHIBIT 4.3
WARRANT AGREEMENT
AGREEMENT, dated as of this _______ day of
_______________, 1996, by and among FOOD COURT ENTERTAINMENT
NETWORK, INC., a Delaware corporation ("Company"), American Stock
Transfer & Trust Company, as Warrant Agent (the "Warrant Agent"),
and XXXXXX XXXX LLC, a New York Limited Liability Company
("Xxxxxx Xxxx").
W I T N E S S E T H
WHEREAS, in connection with the engagement of Xxxxxx
Xxxx to provide financial advisory services to the Company, the
Company has agreed to xxxxx Xxxxxx Xxxx 402,328 Warrants; and
WHEREAS, each Warrant initially entitles Xxxxxx Xxxx to
purchase one (1) share of Series A Common Stock;
WHEREAS, the Company desires the Warrant Agent to act
on behalf of the Company, and the Warrant Agent is willing to so
act, in connection with the issuance, registration, exchange and
redemption of the Warrants, the issuance of certificates
representing the Warrants, the exercise of the Warrants, and the
rights of Xxxxxx Xxxx.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements hereinafter set forth and for the purpose
of defining the terms and provisions of the Warrants and the
certificates representing the Warrants and the respective rights
and obligations thereunder of the Company, the holders of
certificates representing the Warrants and the Warrant Agent, the
parties hereto agree as follows:
Section 1. Definitions. As used herein, the following
terms have the following meanings, unless the context shall
otherwise require:
(a) "Additional Warrants" shall mean additional
warrants issued to Xxxxxx Xxxx in addition to the 402, 328
Warrants initially issued resulting from the anti-dilution
provisions described in Section 9.
(b) "Common Stock" shall mean stock of the
Company of any class, whether now or hereafter authorized, which
has the right to participate in the distribution of earnings and
assets of the Company without limit as to amount or percentage,
which at the date hereof consists of 200,000,000 shares of
Series A Common Stock, $.01 par value and 1,250,000 shares of
Series B Common Stock, $.01 par value.
(c) "Corporate Office" shall mean the office of
the Warrant Agent (or successor) at which at any particular time
its principal business shall be administered, which office is
located at the date hereof at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
(d) "Exercise Date" shall mean as to any Warrant
or Additional Warrant, the date on which the Warrant Agent shall
have received both (a) the Warrant Certificate representing such
Warrant with the exercise form thereon duly executed by Xxxxxx
Xxxx or its attorney duly authorized in writing, and (b) payment
in cash or by official bank or certified check made payable to
the Company, of an amount in lawful money of the United States of
America equal to the applicable Purchase Price or shares of
Series A Common Stock equal to the applicable Purchase Price as
provided in Section 4(b).
(e) "Initial Warrant Exercise Date" shall mean as
to each Warrant December 17, 1997 and as to each Additional
Warrant, one year following the date of grant.
(f) "Purchase Price" shall mean the purchase
price to be paid upon exercise of each Warrant or Additional
Warrant in accordance with the terms hereof which price shall be
$2.00 for the Warrants initially issued, subject to adjustment
from time to time pursuant to the provisions of Section 10 hereof
and subject to the Company's right to reduce the Purchase Price
upon notice to all Registered Holders of Warrants, or for
Additional Warrants issued as a result of anti-dilution
provisions in Section 9 hereof, the purchase price of which shall
be the exercise price of the Class A or Class B Warrants which
were exercised and which triggered the right to issuance of
Additional Warrants.
(g) "Redemption Price" shall mean the price at
which the Company may, at its option in accordance with the terms
hereof, redeem the Warrants or Additional Warrants, which price
shall be $0.05 per Warrant.
(h) "Transfer Agent" shall mean American Stock
Transfer & Trust Company, as the Company's transfer agent, or its
authorized successor, as such,
(i) "Warrant Expiration Date" shall mean the
earlier of 5:00 P.M. (New York time) on October 11, 2001 or, the
Redemption Date with respect to Warrants or Additional Warrants
which are outstanding as of the applicable Redemption Date (as
defined in Section 8), the Redemption Date; provided that if such
date shall in the State of New York be a holiday or a day on
which banks are authorized or required to close, then 5:00 P.M.
(New York time) on the next following day which in the State of
New York is not a holiday or a day on which banks are authorized
or required to close, upon notice to Xxxxxx Xxxx, the Company
shall have the right to extend the Warrant Expiration Date.
Section 2. Warrants and Issuance of Warrant
Certificates.
(a) A Warrant initially shall entitle Xxxxxx Xxxx
to purchase one share of Series A Common Stock upon the exercise
thereof, in accordance with the terms hereof, subject to
modification and adjustment as provided in Sections 9 and 10.
(b) Upon execution of this Agreement, Warrant
Certificates representing the number of Warrants granted pursuant
to the letter engagement agreement dated December 17, 1996 shall
be executed by the Company and delivered to the Warrant Agent.
Upon written order of the Company signed by its President or
Chairman or a Vice President and by its Secretary or an Assistant
the Warrant Certificates shall be countersigned, issued and
delivered by the Warrant Agent.
(c) From time to time, up to the Warrant
Expiration Date, the Warrant Agent shall countersign and deliver
stock certificates in required whole number denominations
representing up to in aggregate of 402,328 shares of Series A
Common Stock, subject to adjustment and issuance of Additional
Warrants as described herein, upon the exercise of Warrants in
accordance with this Agreement.
(d) From time to time, up to the Warrant
Expiration Date, the Warrant Agent shall countersign and deliver
Warrant Certificates in required whole number denominations to
the persons entitled thereto in connection with any exchange
permitted under this Agreement; provided the no Warrant
Certificates shall be issued except (i) those initially issued
hereunder, (ii) those issued upon any exchange pursuant to
Section 6; (iii) those issued in replacement of lost, stolen,
destroyed or mutilated Warrant Certificates pursuant to
Section 7; (iv) at the option of the Company, in such form as may
be approved by the its Board of Directors, to reflect any
adjustment or change in the Purchase Price, the number of shares
of Common Stock purchasable upon exercise of the Warrants or the
Target Price(s) therefor made pursuant to Section 8 hereof and
(v) Additional Warrants issued upon the exercise of Class A or
Class B Warrants pursuant to Section 9.
Section 3. Form and Execution of Warrant Certificates.
(a) The Warrant Certificate shall be
substantially in the form annexed hereto as Exhibit A (the
provisions of which are hereby incorporated herein) and may have
such letters, numbers or other marks of identification or
designation and such legends, or endorsements printed,
lithographed or engraved thereon as the Company may deem
appropriate and is are not inconsistent the provisions of this
Agreement or as may be required to comply with any law or with
any rule or regulation made pursuant thereto. The Warrant
Certificates shall be dated the date of issuance thereof (whether
upon initial issuances transfer, exchange or in lieu of
mutilated, lost, stolen or destroyed Warrant Certificates) and
issued in registered form. Warrant Certificates shall be
numbered serially with the letters FS on all Warrants or
Additional Warrants of all denominations.
(b) Warrant Certificates shall be executed on
behalf of the Company by its Chairman of the Board, President or
any Vice President and by its Secretary or an Assistant
Secretary, by manual signatures or by facsimile signatures
printed thereon, and shall have imprinted thereon a facsimile of
the Company's seal. Warrant Certificates shall be manually
countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Warrant Certificates
shall cease to be an officer of the Company or to hold the
particular office referenced in the Warrant Certificate before
the date of issuance of the Warrant Certificates or before
countersignature by the Warrant Agent and issue and delivery
thereof, such Warrant Certificates may nevertheless be
countersigned by the Warrant Agent, issued and delivered with the
force and effect as though the person who signed such Warrant
Certificates had not ceased to be an officer of the Company or to
hold such office. After countersignature by the Warrant Agent,
Warrant Certificates shall be delivered by the Warrant Agent to
Xxxxxx Xxxx without further action by the Company, except as
otherwise provided by Section 4(a) hereof.
Section 4. Exercise.
(a) Each Warrant or Additional Warrant may be
exercised by Xxxxxx Xxxx at any time on or after the Initial
Exercise Date, but not after the Warrant Expiration Date, upon
the terms and subject to the conditions set forth herein and in
the applicable Warrant Certificate. A Warrant or Additional
Warrant shall be deemed to have been exercised immediately prior
to the close of business on the Exercise Date and the person
entitled to receive the securities deliverable upon such exercise
shall be treated for all purposes as the holder of those
securities upon the exercise of the Warrant as of the close of
business on the Exercise Date. As soon as practicable on or
after the Exercise Date, the Warrant Agent shall deposit the
process received from the exercise of a Warrant or Additional
Warrant and shall notify the Company in any of the exercise
thereof. Promptly following, and in any event within five days
after the date of such notice from the Warrant Agent, the Warrant
Agent, on behalf of the Company, shall cause to be issued and
delivered by the Transfer Agent, to the person or persons
entitled to receive the same, a certificate or certificates for
the securities deliverable upon such exercise, (plus a Warrant
Certificate for any remaining unexercised Warrants or Additional
Warrants of Xxxxxx Xxxx) unless prior to the date of issuance of
such certificates the Company shall instruct the Warrant Agent to
refrain from causing such issuance of certificates pending
clearance of checks received in payment of the Purchase Price
pursuant to such Warrant or Additional Warrants.
(b) Upon the exercise of any Warrant or
Additional Warrants and clearance of the funds received the
Warrant Agent shall promptly remit the payment received for the
Warrant (the "Warrant Proceeds") to the Company or as the Company
may direct in writing. Xxxxxx Xxxx may remit payment in cash or
by delivery to the Company of shares of Series A Common Stock
with a fair market value equal to the aggregate Purchase Price
with respect to the Warrants or Additional Warrants exercised.
For the purposes of this Section, fair market value shall mean
the closing bid price of the Series A Common Stock as reported on
the NASDAQ SmallCap Market or such other stock market on which
the Series A Common Stock is trading on the trading day
immediately prior to the Exercise Date.
Section 5. Reservation of Shares; Listing; Payment of
Taxes, etc.
(a) The Company covenants that it will at all
times reserve and keep available out of its authorized Common
Stock, solely for the purpose of issue upon exercise of Warrants
or Additional Warrants, such number of shares of Series A Common
Stock as shall then be issuable upon the exercise of all
outstanding Warrants and Additional Warrants. The Company
covenants that all shares of Series A Common Stock which shall be
issuable upon exercise of the Warrants or Additional Warrants
shall, at the time of delivery, be duly and validly issued, fully
paid, nonassessable and free from all taxes, liens and charges
with respect to the issue thereof, (other than those which the
Company shall promptly pay or discharge,) and that upon issuance
such shares shall be listed on each national securities exchange,
on which the other share of outstanding Common Stock of The
Company are then listed or shall be eligible for inclusion in the
NASDAQ National Market or the Nasdaq SmallCap Market if the other
shares of outstanding Common Stock of the Company are so
included.
(b) The Company covenants that if any securities
to be reserved for the purpose of exercise of Warrants or
Additional Warrants hereunder require registration with, or
approval of any governmental authority under any federal
securities law before such securities may be validly issued or
delivered upon such exercise then the Company will in good faith
and as expeditiously as reasonably possible, endeavor to secure
such registration or approval. The Company will use reasonable
efforts to obtain appropriate approvals or registrations under
state "blue sky" securities laws. With respect to any such
securities, however, Warrants may not be exercised by, or shares
of Series A Common Stock issued to Xxxxxx Xxxx in any state in
which such exercise would be unlawful.
(c) The Company shall pay all documentary, stamp
or similar taxes and other governmental charges that may be
imposed with respect to the issuance of Warrants or Additional
Warrants, or the issuance or delivery of any shares; provided,
however, that if the shares of Series A Common Stock are to be
delivered in a name other than Xxxxxx Xxxx, then no such delivery
shall be made unless the person requesting the same has paid to
the Warrant Agent the amount of transfer taxes or charges
incident thereto, if any.
(d) The Warrant Agent is hereby irrevocably
authorized to requisition Company's Transfer Agent from time to
time for certificates representing shares of Series A Common
Stock issuable upon exercise of the Warrants or Additional
Warrants, and the Company will authorize the Transfer Agent to
comply with all such proper requisitions. The Company will file
with the Warrant Agent a statement setting forth the name and
address of the Transfer Agent of the Company for shares of Common
Stock issuable upon exercise of the Warrants or Additional
Warrants.
Section 6. Exchange and Registration: Restriction on
Transfer.
(a) Warrant Certificates may be exchanged for
other Warrant Certificates representing an equal aggregate number
of Warrants of the same class. Warrant Certificates to be
exchanged shall be surrendered to the Warrant Agent at its
Corporate Office, and upon satisfaction of the term and
provisions hereof the Company, shall execute and the Warrant
Agent shall countersign, issue and deliver in exchange therefor
the Warrant Certificate or Certificates which Xxxxxx Xxxx shall
be entitled to receive.
(b) The Warrant Agent shall keep at its office
books in which, subject to such reasonable regulation as it may
prescribe, it shall register Warrant Certificates in accordance
with its regular practice.
(c) With respect to all Warrant Certificates
proposed for registration or for exercise, the subscription form
on the reverse thereof shall be duly endorsed or be accompanied
by a written instrument or instruments of transfer and
subscription, in forms satisfactory to the Company and the
Warrant Agent, duly executed by an authorized representative of
Xxxxxx Xxxx or its attorney-in-fact duly authorized in writing.
(d) A service charge may be imposed by the
Warrant Agent for any exchange of Warrant Certificate. In
addition, the Company may require payment by such holder of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in connection therewith.
(e) All Warrant Certificates surrendered for
exercise or for exchange in case of mutilated Warrant
Certificates shall be promptly cancelled by the Warrant Agent and
thereafter retained by the Warrant Agent until termination of
this Agreement or resignation as Warrant Agent, or disposed of or
destroyed, at the direction of the Company.
(f) The Warrants and Additional Warrants issued
to Xxxxxx Xxxx hereunder may not be sold, assigned, conveyed or
otherwise transferred. In the event Xxxxxx Xxxx sells, assigns,
conveys or otherwise transfers the Warrants or Additional
Warrants which are subject to this Agreement, the Warrants and
Additional Warrants shall be automatically cancelled and
terminated and of no further effect. Upon receipt by the Warrant
Agent of a Warrant Certificate to sell, assign, convey or
otherwise transfer Warrants or Additional Warrants, the Warrant
Agent shall xxxx the Warrant Certificate cancelled and void and
forthwith inform the Company thereof.
Section 7. Loss or Mutilation. Upon receipt by the
Company and the Warrant Agent of evidence satisfactory to them of
the ownership of and loss, theft, destruction or mutilation of
any Warrant Certificate and (in case of loss, theft or
destruction) of indemnity satisfactory to them and (in the case
of mutilation) upon surrender and cancellation thereof, the
Company shall execute and the Warrant Agent shall countersign and
deliver to Xxxxxx Xxxx in lieu thereof a new Warrant Certificate
of like tenor representing an equal aggregate number of Warrants
or Additional Warrants. Applicants for a substitute Warrant
Certificate shall comply with such other reasonable regulations
and pay such other reasonable charges as the Warrant Agent may
prescribe.
Section 8. Redemption.
(a) On not less than thirty (30) days notice (the
"Redemption Notice"), to Xxxxxx Xxxx, the Warrants and Additional
Warrants may be redeemed, at the option of the Company, at a
redemption price of $0.05 per Warrant, provided the Market Price
of the Common Stock receivable upon exercise of such Warrants or
Additional Warrants shall exceed $9.00 (the "Target Price"),
subject to adjustment as set forth in Section 8(f), below.
Market Price shall mean (i) the average closing bid price of the
Common Stock, for thirty (30) consecutive days ending on the
Calculation Date (as hereinafter defined) as reported by Nasdaq,
if the Common Stock is traded on the Nasdaq SmallCap Market, or
(ii) the average last reported sale price of the Common Stock,
for thirty (30) consecutive business days ending on the
Calculation Date, as reported by the primary exchange on which
the Common Stock is traded, if the Common Stock is traded on a
national securities exchange, or by Nasdaq, if the Common Stock
is traded on the Nasdaq National Market. All Warrants and
Additional Warrants must be redeemed if any are redeemed. For
purposes of this Section 8, the Calculation Date shall mean a
date within 5 days of the mailing of the Redemption Notice. The
date fixed for redemption of the Warrants and Additional Warrants
is referred to herein as the "Redemption Date."
(b) If the conditions set forth in Section 8(a)
are met, and the Company desires to exercise its right to redeem
the Warrants and Additional Warrants, it shall mail a Redemption
Notice to Xxxxxx Xxxx, first class, postage prepaid, not later
than the 30th day before the date fixed for redemption, at its
last address as shall appear on the records maintained pursuant
to Section 6(b). Any notice mailed in the manner provided herein
shall be conclusively presumed to have been duly given whether or
not Xxxxxx Xxxx receives such notice.
(c) The Redemption Notice shall specify (i) the
redemption price, (ii) the Redemption Date, (iii) the place where
the Warrant Certificates shall be delivered and the redemption
price paid, and (iv) that the right to exercise the Warrant or
Additional Warrants shall terminate at 5:00 P.M. (New York time)
on the business day immediately preceding the Redemption Date.
No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect the validity of the proceedings for
such redemption except if notice was not mailed or notice was
defective. An affidavit of the Warrant Agent or of the Secretary
or an Assistant Secretary of the Company that notice of
redemption has been mailed shall, in the absence of fraud, be
prima facie evidence of the facts stated therein.
(d) Any right to exercise a Warrant or Additional
Warrant shall terminate at 5:00 p.m. (New York time) on the
business day immediately preceding the Redemption Date. On and
after the Redemption Date, Xxxxxx Xxxx shall have no further
rights except to receive, upon surrender of the Warrant or
Additional Warrant, the Redemption Price.
(e) From and after the Redemption Date, the
Company, shall, at the place specified in the Redemption Notice,
upon presentation and surrender to the Company by or on behalf of
Xxxxxx Xxxx of one or more Warrant Certificates evidencing
Warrants or Additional Warrants to be redeemed, deliver or cause
to be delivered to or upon the written order of Xxxxxx Xxxx a sum
in cash equal to the Redemption Price of each such Warrant or
Additional Warrant. From and after the Redemption Date and upon
the deposit or setting aside by the Company of a sum sufficient
to redeem all the Warrants called for redemption, such Warrants
and Additional Warrants shall expire and become void and all
rights hereunder and under the Warrant Certificates, except the
right to receive payment of the Redemption Price, shall cease.
(f) If the shares of the Company's Common Stock
are subdivided or combined into a greater or smaller number of
shares of Common Stock, the Target Prices shall be proportionally
adjusted by the ratio which the total number of shares of Common
Stock outstanding immediately prior to such event bears to the
total number of shares of Common Stock to be outstanding
immediately after such event.
Section 9. Adjustment of Number of Warrants on
Exercise of Class A or Class B Warrants.
(a) In the event a holder of any Class A Warrant
or Class B Warrant issued by the Company on or before
December 17, 1996 exercises any such warrant and purchases
Series A Common Stock, the Company agrees to issue to Xxxxxx Xxxx
such number of additional Warrants ("Additional Warrants") to
maintain ownership by Xxxxxx Xxxx equal to five percent of the
issued and outstanding Series A and Series B Common Stock as on
December 17, 1996 plus the Series A Common Stock issued pursuant
to the exercise of any Class A or Class B Warrant.
(b) The Additional Warrants issued pursuant to
this Section 9 shall be identical to the Warrants issued
hereunder except that the exercise price shall be the same
exercise price as was paid to exercise the Class A Warrant or
Class B Warrant, as the case may be, and the initial exercise
date of the Additional Warrants shall be 12 months following the
date on which the Additional Warrants are granted to Xxxxxx Xxxx.
(c) Notwithstanding the foregoing, in the event
Xxxxxx Xxxx sells, assigns, conveys or otherwise transfers the
Warrants hereunder, the right to adjustment pursuant to this
Section 9 shall automatically extinguish and be terminated.
Section 10. Adjustment of Exercise Price and Number of
Shares of Common Stock or Warrants.
(a) Subject to the exceptions referred to in
Section 10(g) below, in the event the Company shall, at any time
or from time to time after the date hereof, sell any shares of
Common Stock for a consideration per share less than the Market
Price of the Common Stock (as defined in Section 8, except that
for purposes of Section 10, the Calculation Date shall mean the
date of the sale or other transaction referred to in this
Section 10) on the date of the sale or issue any shares of Common
Stock as a stock dividend to the holders of Common Stock, or
subdivide or combine the outstanding shares of Common Stock into
a greater or lesser number of shares (any such sale, issuance,
subdivision or combination being herein called a "Change of
Shares"), then, and thereafter upon each further Change of
Shares, the Purchase Price in effect immediately prior to such
Change of Shares shall be changed to a price (including any
applicable fraction of a cent ) determined by multiplying the
Purchase Price in affect immediately prior thereto by a fraction,
the numerator of which shall be the sum of the number of shares
of Common Stock outstanding immediately prior to the issuance of
such additional shares and the number of shares of Common Stock
which the aggregate consideration received (determined as
provided in subsection 10(f)(F) below) for the issuance of such
additional shares would purchase at the Market Price and the
denominator of which shall be the sum of the number of shares of
Common Stock outstanding immediately after the issuance of such
additional shares. Such adjustment shall be made successively
whenever such an issuance is made.
Upon each adjustment of the Purchase Price
pursuant to this Section 10, the total number of shares of Common
Stock purchasable upon the exercise of each Warrant shall
(subject to the provisions contained in Section 10(b) hereof) be
such number of shares (calculated to the nearest one-hundredth;
provided, however, that in no event shall the Purchase Price
increase as a result of such rounding calculation) purchasable at
the Purchase Price in effect immediately prior to such adjustment
multiplied by a fraction, the numerator of which shall be the
Purchase Price in effect immediately prior to such adjustment and
the denominator of which shall be the Purchase Price in effect
immediately after such adjustment.
(b) The Company may elect, upon any adjustment of
the Purchase Price hereunder, to adjust the number of Warrants or
Additional Warrants outstanding, in lieu of the adjustment in the
number of shares of Common Stock purchasable upon the exercise of
each Warrant or Additional Warrant as hereinabove provided, so
that each Warrant outstanding after such adjustment shall
represent the right to purchase one share of Common Stock. Each
Warrant or Additional Warrant held of record prior to such
adjustment of the number of Warrants or Additional Warrants shall
become that number of Warrants or Additional Warrants (calculated
to the nearest tenth) determined by multiplying the number one by
a fraction, the numerator of which shall be the Purchase Price in
effect immediately prior to such adjustment and the denominator
of which shall be the Purchase Price in effect immediately after
such adjustment. Upon each adjustment of the number of Warrants
or Additional Warrants pursuant to this Section 10, the Company
shall, as promptly as practicable, cause to be distributed to
Xxxxxx Xxxx on the date of such adjustment Warrant Certificates
evidencing, subject to Section 11 hereof, the number of Warrants
or Additional Warrants to which Xxxxxx Xxxx shall be entitled as
a result of such adjustment or, at the option of the Company,
cause to be distributed to Xxxxxx Xxxx in substitution and
replacement for the Warrant Certificate held by it prior to the
date of adjustment (and upon surrender thereof, if required by
the Company) new Warrant Certificates evidencing the number of
Warrants or Additional Warrants to which Xxxxxx Xxxx shall be
entitled after such adjustment.
(c) In case of any reclassification, capital
reorganization or other change of outstanding shares of Common
Stock, or in case of any consolidation or merger of the Company
with or into another corporation (other than a consolidation or
merger in which the Company is the continuing corporation and
which does not result in any reconstruction, capital
reorganization or other change of outstanding shares of Common
Stock), or in case of any sale or conveyance to another
corporation of the property of the Company as, or substantially
as, an entirety (other than a sale, lease back, mortgage or other
financing thereon), the Company shall cause effective provision
to be made so that Xxxxxx Xxxx shall have the right thereby, by
exercising such Warrant or Additional Warrant, to purchase the
kind and number of shares of stock or other securities or
property (including cash) receivable upon such reclassification,
capital reorganization or other change, consolidation, merger,
sale or conveyance by a holder of the number of shares of Common
Stock that might have been purchased upon exercise of such
Warrant or Additional Warrant immediately prior to such
reclassification, capital reorganization or other change,
consolidation, merger, sale or conveyance. Any such provision
shall include provision for adjustments that shall be, as nearly
equivalent as may be practicable to the adjustments provided for
in this Section 10. The Company shall not effect any such
consolidation, merger or sale unless prior to or simultaneously
with the consummation thereof the successor (if other than the
Company) resulting from such consolidation or merger or the
corporation purchasing assets or other appropriate corporation or
entity shall assume, by written instrument executed and delivered
to the Warrant Agent, the obligation to deliver to Xxxxxx Xxxx
such shares of stock, securities or assets as, in accordance with
the foregoing provisions, Xxxxxx Xxxx may be entitled to purchase
and the other obligations of the Company under this Agreement.
The foregoing provisions shall similarly apply to successive
reclassifications, capital reorganizations and other changes of
outstanding shares of Common Stock and to successive
consolidations, mergers, sales or conveyances.
(d) Respective of any adjustments or changes in
the Purchase Note or the number of shares of Common Stock
purchasable upon exercise of the Warrants or Additional Warrants,
the Warrant Certificates theretofore and thereafter issued shall,
unless the Company shall exercise its option to issue new Warrant
Certificates pursuant to Section 2(d) hereof, continue to express
the Purchase Price per share, the number of shares purchasable
thereunder and the Redemption Price therefor as the Purchase
Price per share, and the number of shares purchasable and the
Redemption Price therefor were expressed in the Warrant
Certificates when the same were originally issued.
(e) After each adjustment of the Purchase Price
pursuant to this Section 10, the Company will promptly prepare a
certificate signed by the Chairman or President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, of the Company setting forth: (i) the
Purchase Price as so adjusted, (ii) the number of shares of
Common Stock purchasable upon exercise of each Warrant after such
adjustment and, if the Company shall have elected to adjust the
number of Warrants and Additional Warrants, the number of
Warrants and Additional Warrants to which Xxxxxx Xxxx shall then
be entitled, and the adjustment in Redemption Price resulting
therefrom, and (iii) a statement showing in detail the method of
calculation and the facts upon which such adjustment or
readjustment is based, including a statement of (a) the
confederation received or to be received by the Company for any
securities issued or sold or deemed to have been issued, (b) the
number of shares of Common Stock outstanding or deemed, to be,
outstanding, and (c) the Purchase Price in effect immediately
prior to such issue or sale and as adjusted and readjusted (if
required by Section 10) on account thereof. The Company will
promptly file such certificate with the Warrant Agent and deliver
such certificate to Xxxxxx Xxxx. No failure to mail such notice
nor any defect therein or in the making thereof shall affect the
validity thereof except as to the holder to whom the Company
failed to mail such notice, or except as to the holder whose
notice was defective.
(f) For purposes of Section 10(a) and 10(b)
hereof, the following provisions (A) to (G) shall also be
applicable:
(A) The number of shares of Common Stock
outstanding at any given time shall include shares of Common
Stock owned or held by or for the account of the Company and
the sale or issuance of such treasury shares or the
distribution of any such treasury shares shall not be
considered a Change of Shares for purposes of said sections.
(B) No adjustment of the Purchase Price
shall be made unless such adjustment would require an
increase or decrease of at least $.10 in the Purchase Price;
provided that any adjustments which by reason of this clause
(B) are not required to be made shall be carried forward and
shall be made at the time of and together with the next
subsequent adjustment which together with any adjustment(s)
so carried forward, shall require an increase or decrease of
at least $.10 in the Purchase Price then in effect
hereunder.
(C) In case of (1) the sale by the Company
for cash (or as a component of a unit being sold for cash)
of any rights or warrants to subscribe for or purchase, or
any options for the purchase of, Common Stock or any
securities convertible into or exchangeable for Common Stock
without the payment of any further consideration other than
cash, if any (such securities convertible, exercisable or
exchangeable into Common Stock being herein called
"Convertible Securities"), or (2) the issuance by the
Company, without the receipt by the Company of any
consideration therefor, of any rights or warrants to
subscribe for or purchase, or any options for the purchase
to Common Stock or Convertible Securities, in each case, if
(and only if) the consideration payable to the Company upon
the exercise of such rights, warrants or options shall
consist of cash, whether or not such rights, warrants or
options, or the right to convert or exchange such
Convertible Securities, are immediately exercisable, and the
price per share for which Common Stock is issuable upon the
exercise of such rights, warrants or options or upon the
conversion or exchange of such Convertible Securities
(determined by dividing (x) the minimum aggregate
consideration payable to the Company upon the exercise of
such rights, warrants or options, plus the confederation, if
any, received by the Company for the issuance of such
rights, warrants or options, plus, in the case of such
Convertible Securities, the aggregate amount of additional
consideration, other than such Convertible Securities,
payable upon the conversion or exchange thereof, by (y) the
total maximum number of shares of Common Stock issuable upon
the exercise of such rights, warrants or options or upon the
conversion or exchange of such Convertible Securities
issuable upon the exercise of such rights, warrants or
options) is less than the Market Price of the Common Stock
on the date of the issuance or sale of such rights, warrants
or options, then the total maximum number of shares of
Common Stock issuable upon the exercise of such rights,
warrants or options or upon the conversion or exchange of
such Convertible Securities (as of the date of the issuance
or sale of such rights, warrants or options) shall be deemed
to be outstanding shares of Common Stock for purposes of
Section 10(a) and 10(b) hereof and shall be deemed to have
been sold for cash in an amount equal to such price per
share.
(D) In case of the sale by the Company for
any Convertible Securities, whether or not the right of
conversion or exchange thereunder is immediately
exercisable, and the price per share for which Common Stock
is issuable upon the conversion or exchange of such
Convertible Securities (determined by dividing (x) the total
amount of consideration received by the Company for the sale
of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, other than such
Convertible Securities, payable upon the conversion or
exchange thereof by (y) the total maximum number of shares
of Common Stock issuable upon the conversion or exchange of
such Convertible Securities) is less than the Market Price
of the Common Stock on the date of the sale of such
Convertible Securities, then the total maximum number of
shares of Common Stock issuable upon the conversion or
exchange of such Convertible Securities (as of the date of
the sale of such Convertible Securities) shall be deemed to
be outstanding shares of Common Stock for purposes of
Sections 10(a) and 10(b) hereof and shall be deemed to have
been sold for cash in an amount equal to such price per
share.
(E) In case the Company shall modify the
rights of conversion, exchange or exercise of any of the
securities referred to in (C) or (D) above or any other
securities of the Company convertible, exchangeable or
exercisable for shares of Common Stock, for any reason other
than an event that would require adjustment to prevent
dilution, so that the consideration per share received by
the Company after such modification is less than the Market
Price on the date prior to such modification the Purchase
Price to be in effect after such modification shall be
determined by multiplying the Purchase Price in effect
immediately prior to such event by a fraction, of which the
numerator shall be the number of shares of Common Stock
outstanding on the date prior to the modification plus the
number of shares of Common Stock which the aggregate
consideration receivable by the Company for the securities
affected by the modification would purchase at the Market
Price and of which the denominator shall be the number of
shares of Common Stock outstanding, on such date plus the
number of shares of Common Stock to be issued upon
conversion, exchange or exercise of the modified securities
at the modified rate. Such adjustment shall become
effective as of the date upon which such modification shall
take effect. On the expiration of any such right, warrant
or option or the termination of any such right to convert or
exchange any such Convertible Securities referred to in
Paragraph (C) or (D) above, the Purchase Price then in
effect hereunder shall forthwith be readjusted to such
Purchase Price as would have obtained (a) had the
adjustments made upon the issuance or sale of such rights,
warrants, options or Convertible Securities been made upon
the basis of the issuance of only the number of shares of
Common Stock theretofore actually delivered (and the total
consideration received therefor) upon the exercise of such
rights, warrants or options or upon the conversion or
exchange of such Convertible Securities and (b) had
adjustments been made on the basis of the Purchase Price as
adjusted under clause (a) for all transactions (which would
have affected such adjusted Purchase Price) made after the
issuance or sale of such rights, warrants, options or
Convertible Securities.
(F) In case of the sale for cash of any
shares of Common Stock, any Convertible Securities, any
rights or warrants to subscribe for or purchase, or any
options for the purchase of, Common Stock or Convertible
Securities, the consideration received by the Company
therefore to be deemed to be the gross sales price therefor
without deducting therefrom any expense paid or incurred by
the Company or any underwriting discounts or concessions or
concessions paid or allowed by the Company in connection
therewith.
(G) In case any event shall occur as to
which the provisions of Section 10 are not strictly
Applicable but the failure to make any adjustment would not
fairly protect the purchase rights represented by the
Warrants in accordance with the essential intent and
principles of Section 10, then, in each such case, the Board
of Directors of the Company shall in good faith by
resolution provide for the adjustment, if any, on a basis
consistent with the essential intent and principles
established in Section 10, necessary to preserve, without
dilution, the purchase rights represented by the Warrants.
The Company will promptly make the adjustments described
therein.
(g) No adjustment to the Purchase Price of the
Warrants or Additional Warrants or to the number of shares of
Common Stock purchasable upon the exercise of each Warrant or
Additional Warrant will be made, however,
(i) upon the exercise of any of the options
presently outstanding under the Company's stock option plan
for officers, directors and certain other key personnel of
the Company and the Consultants and Advisors Stock Option
Plan (the "Plan"); or
(ii) upon the issuance or exercise of any
other securities which may hereafter be granted or exercised
under the Plans or under any other employee benefit plan of
the Company; or
(iii) except as set forth in Section 9, upon
the sale or exercise of other warrants, including without
limitation the sale or exercise of any of the warrants
comprising the Unit Purchase Option or upon the sale or
exercise of the Unit Purchase Option; or
(iv) Stock or Convertible Securities in a
firm commitment
underwritten public offering, including, without limitation,
shares sold upon the exercise of any overallotment option
granted to the underwriters in connection with such
offering; or
(v) upon the issuance or sale of Common
Stock or Convertible Securities upon the exercise of any
rights or warrants to subscribe for or purchase, or any
options for the purchase of, Common Stock or Convertible
Securities, whether or not such rights, warrants or options
were outstanding on the date of the original sale of the
Warrants or were thereafter issued or sold; or
(vi) upon the issuance or sale of Common
Stock upon conversion or exchange of any Convertible
Securities, whether or not any adjustment in the Purchase
Price was made or deemed to be made upon the issuance or
sale of such Convertible Securities and whether or not such
Convertible Securities were outstanding on the date of the
original sale of the Warrants or were thereafter issued or
sold.
(h) As used in this Section 10, the term "Common
Stock" shall mean and include the Company's Common Stock
authorized on the date of this Agreement and shall also include
any capital stock of any class of the Company thereafter
authorized which shall not be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to
participate in dividends and in the distribution of assets upon
the voluntary liquidation, dissolution or winding up of the
Company; provided, however, that the shares issuable upon
exercise of the Warrants or Additional Warrants shall include
only shares of such class designated in the Company's Certificate
of Incorporation as Common Stock on the date of this Agreement or
(i), in the case of any reclassification, change, consolidation,
merger, sale or conveyance of the character referred to in
Section 10(c) hereof, the stock, securities or property provided
for in such section or (ii), in the case of any reclassification
or change in the outstanding shares of Common Stock issuable upon
exercise of the Warrants or Additional Warrants as a result of a
subdivision or combination or consisting of a change in par
value, or from par value to no par value, or from no par value to
par value, such shares of Common Stock as so reclassified or
changed.
(i) Any determination as to whether an adjustment
in the Purchase Price in effect hereunder is required pursuant to
Section 10, or as to the amount of any such adjustment if
required, shall be binding upon Xxxxxx Xxxx and the Company if
made in good faith by the Board of Directors of the Company.
(j) If and whenever the Company shall grant to
the holders of Common Stock, as such, rights or warrants to
subscribe for or to purchase, or any options for the purchase of,
Common Stock or securities convertible into or exchangeable for
or carrying a right, warrant or option to purchase Common Stock,
the Company shall concurrently therewith grant to Xxxxxx Xxxx as
of the record date for such transaction of the Warrants and
Additional Warrants then outstanding, the rights, warrants or
options to which Xxxxxx Xxxx would have been entitled if, on the
record date used to determine the stockholders entitled to the
rights, warrants or options being granted by the Company, Xxxxxx
Xxxx was the holder of record of the number of whole shares of
Common Stock then issuable upon exercise (assuming, for purposes
of this Section 10(j), that exercise of Warrants and Additional
Warrants is permissible during periods prior to the Initial
Warrant Exercise Date) of its Warrants or Additional Warrants.
Such grant by the Company to the holders of the Warrants shall be
in lieu of any adjustment which otherwise might be called for
pursuant to this Section 10.
Section 11. Registration Under the Securities Act of
1933. The Company agrees to register the shares of Series A
Common Stock issued or issuable upon exercise of the Warrants and
Additional Warrants under the Securities Act of 1933, as amended
(the "Act") no later than [April 30, 1997?].
Section 12. Fractional Warrants and Factional Shares.
(a) If the number of shares of Series A Common
Stock purchasable upon the exercise of each Warrant or Additional
Warrant is adjusted pursuant to Sections 9 or 10 hereof, the
Company nevertheless shall not be required to issue fractions of
shares, upon exercise of the Warrants of otherwise, or to
distribute certificates that evidence fractional shares. With
respect to any fraction of a share called for upon the exercise
of any Warrant or Additional Warrant, the Company shall pay to
Xxxxxx Xxxx an amount in cash equal to such fraction multiplied
by the current market value of such fractional share, determined
as follows:
(1) If the Series A Common Stock is listed
on a national securities exchange or admitted to unlisted
trading privileges on such exchange or is traded o the
Nasdaq National Market, the current market value shall be
the last reported sale price of the Common Stock on such
exchange or market on the last business day prior to the
date of exercise of this Warrant or Additional Warrant or if
no such sale is made on such day, the average of the closing
bid and asked prices for such day on such exchange or
market; or
(2) If the Series A Common Stock is not
listed or admitted to unlisted trading privileges on a
national securities exchange or is not traded on the Nasdaq
National Market, the current market value shall be the mean
of the last reported bid and asked prices reported by the
Nasdaq SmallCap Market or, if not traded thereon, by the
National Quotation Bureau, Inc. on the last business day
prior to the date of the exercise of this Warrant or
Additional Warrant; or
(3) If the Series A Common Stock is not so
listed or admitted to unlisted trading privileges and bid
and asked prices are not so reported, the current market
value to be an amount determined in such reasonable manner
as may be prescribed by the Board of Directors of the
Company.
Section 13. Warrant Holders Not Deemed Stockholders.
No holder of Warrants and Additional Warrants shall, as such, be
entitled to vote or to receive dividends or be deemed the holder
of Series A Common Stock that may at any time be issuable upon
exercise of such Warrant for any purpose whatsoever, nor shall
anything contained herein be construed to confer upon the holder
of Warrants or Additional Warrants, as such, any of the rights of
a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issue or reclassification of stock, change of
par value or change of stock to no par value, consolidation,
merger or conveyance or otherwise), or to receive notice of
meetings, or to receive dividends or subscription rights, until
such holder shall have exercised such Warrants or Additional
Warrants and been issued shares of Series A Common Stock in
accordance with the provisions hereof.
Section 14. Rights of Action. All rights of action
with respect to this Agreement are vested in Xxxxxx Xxxx, and
Xxxxxx Xxxx, without consent of the Warrant Agent or of any
holder of any other warrant may, in his own behalf and for his
own benefit, enforce against the Company his right to exercise
his Warrants or Additional Warrants for the purchase of shares of
Series A Common Stock in the manner provided in the Warrant
Certificate and this Agreement.
Section 15. Agreement of Warrant Holders. Xxxxxx
Xxxx, by its acceptance thereof, consorts and agrees with the
Company and the Warrant Agent that:
(a) The Warrants are not saleable, assignable or
otherwise transferable in any way; and
(b) The Company and the Warrant Agent may deem
and treat the person in whose name the Warrant Certificate is
registered as the holder and as the absolute, true and lawful
owner of the Warrants represented thereby for all purposes, and
neither the Company nor the Warrant Agent shall be affected by
any notice or knowledge to the contrary, except as otherwise
expressly provided in Section 7 hereof.
Section 16. Cancellation of Warrant Certificates. If
the Company shall purchase or acquire any Warrant or Additional
Warrant, the Warrant Certificate or Warrant Certificates
evidencing the same shall thereupon be delivered to the Warrant
Agent and cancelled by it and retired. The Warrant Agent shall
also cancel the Warrant Certificate or Warrant Certificates
following exercise of any or all of the Warrants represented
thereby or delivered to it for exchange.
Section 17. Concerning the Warrant Agent. The Warrant
Agent acts hereunder as agent and in a ministerial capacity for
the Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not, by issuing and
delivering Warrant Certificates or by any other act hereunder be
deemed to make any representations as to the validity, value or
authorization of the Warrant Certificates or the Warrants or
Additional Warrants represented thereby or of any securities or
other property delivered upon exercise of any Warrant or whether
any stock issued upon exercise of any Warrant or Additional
Warrant is fully paid and nonassessable.
The Warrant Agent shall not at any time be under
any duty or responsibility to any holder of Warrant Certificates
to make or cause to be made any adjustment of the Purchase Price
or the Redemption Price provided in this Agreement, or to
determine whether any fact exists which may require any such
adjustments, or with respect to the nature or extent of any such
adjustment, when made, or with respect to the method employed in
making the same. It shall not (i) be liable for any recital or
statement of facts contained herein or for any action taken,
suffered or omitted by it in reliance on any Warrant Certificate
or other document or instrument believed by it in good faith to
be genuine and to have been signed or presented by the proper
party or parties, (ii) be responsible for any failure on the part
of the Company to comply with any of its covenants and
obligations contained in this Agreement or in any Warrant
Certificate, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or
willful misconduct.
The Warrant Agent may at any time consult with
counsel satisfactory to it (who may be counsel for the Company)
and shall incur no liability or responsibility for any action
taken, suffered or omitted by it in good faith in accordance with
the opinion or advice of such counsel.
Any notice, statement, instruction, request,
direction, order or demand of the Company shall be sufficiently
evidenced by an instrument signed by the Chairman of the Board,
President, any Vice President, its Secretary, or Assistant
Secretary, (unless other evidence in respect thereof is herein
specifically prescribed). The Warrant Agent shall not be liable
for any action taken, suffered or omitted by it in accordance
with such notice, statement, instruction, request, direction,
order or demand believed by it to be genuine.
The Company agrees to pay the Warrant Agent
reasonable compensation for its services hereunder and to
reimburse it for its reasonable expenses hereunder, it further
agrees to indemnify the Warrant Agent and save it harmless
against any and all losses, expenses and liabilities, including
judgments, costs and counsel fees, for anything done or omitted
by the Warrant Agent in the execution of its duties and powers
hereunder except losses, expenses and liabilities arising as a
result of the Warrant Agent's negligence or willful misconduct.
The Warrant Agent may resign its duties and be
discharged from all further duties and liabilities hereunder
(except liabilities arising as a result of the Warrant Agent's
own negligence or willful misconduct), after giving 30 days'
prior written notice to the Company. At least 15 days prior to
the date such resignation is to become effective, the Warrant
Agent shall cause a copy of such notice of resignation to be
mailed to the Registered Holder of each Warrant Certificate at
the Company's expense. Upon such resignation, or any inability
of the Warrant Agent to act as such hereunder, the Company shall
appoint a new warrant agent in writing. If the Company shall
fail to make such appointment within a period of 15 days after it
has been notified in writing of such resignation by the resigning
Warrant Agent, then the Registered Holder of any Warrant
Certificate may apply to any court of competent jurisdiction for
the appointment of a new warrant agent. Any new warrant agent,
whether appointed by the Company or by such a court, shall be a
bank or trust company having a capital and surplus, as shown by
its last published report to its stockholders, of not less than
$10,000,000 or a stock transfer company that is a registered
transfer agent under the Securities Exchange Act of 1934. After
acceptance in writing of such appointment by the new warrant
agent is received by the Company, such new warrant agent shall be
vested with the same powers, rights, duties and responsibilities
as if it had been originally named herein as the Warrant Agent,
without any further assurance, conveyance, act or deed; but if
for any reason it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same
shall be done at the expense of the Company and shall be legally
and validly executed and delivered by the resigning Warrant
Agent. Not later than the effective date of any such appointment
the Company shall file notice thereof with the resigning Warrant
Agent and shall forthwith cause a copy of such notice to be
mailed to the Registered Holder of each Warrant Certificate.
Any corporation into which the Warrant Agent or
any now warrant agent may be converted or merged or any
corporation resulting from any consolidation to which the Warrant
Agent or any new warrant agent shall be a party or any
corporation succeeding to the trust business of the Warrant Agent
shall be a successor warrant agent under this Agreement without
any further act, provided that such corporation is eligible for
appointment as successor to the Warrant Agent under the
provisions of the preceding paragraph. Any such successor
warrant agent shall promptly cause notice of its succession as
warrant agent to be mailed to the Company and to the Registered
Holder of each Warrant Certificate.
The Warrant Agent, its subsidiaries and
affiliates, and any of its or their officers or directors, may
buy and hold or sell Warrants or other securities of the Company
and otherwise deal with the Company in the same manner and to the
same extent and with like effects as though it were not Warrant
Agent. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other
legal entity.
Section 18. Modification of Agreement. The parties
hereto and the Company may by supplemental agreement make any
changes or corrections in this Agreement (i) that they shall deem
appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or manifest mistake or error herein
contained; (ii) to reflect an increase in the number of Warrants
which are to be governed by this Agreement resulting from (a) a
subsequent public offering of Company securities which includes
Warrants or (b) a subsequent private placement of Company
securities which includes Warrants, in either case having the
same terms and conditions as the Class A or Class B Warrants,
respectively, originally covered by or subsequently added to this
Agreement under this Section 18, provided, however, that in the
case of a private placement, the amendment to this Agreement will
be effective only at such time as the securities underlying such
Warrants are covered by an effective registration statement under
the Act; or (iii) that they may deem necessary or desirable and
which shall not adversely affect the interests of the holders of
Warrant Certificates; provided, however, that this Agreement
shall not otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered
Holders of Warrant Certificates representing not less than 50% of
the Warrants then outstanding; and provided, further, that no
change in the number or nature of the securities purchasable upon
the exercise of any Warrant, or the Purchase Price therefor, or
the acceleration of the Warrant Expiration Date, shall be made
without the consent in writing of the Registered Holder of the
Warrant Certificate representing such Warrant, other than such
changes as are specifically prescribed by this Agreement as
originally executed or are made in compliance with applicable
law.
Section 19. Notices. All notices, requests, consents
and other communications hereunder shall be in writing and shall
be deemed to have been made when delivered or mailed first class
registered or certified mail, postage prepaid as follows: if to
the Registered Holder of a Warrant Certificate, at the address of
such holder as shown on the registered books maintained by the
Warrant Agent; if to the Company, at 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx, CEO, or
at such other address as may have been furnished to the Warrant
Agent in writing by the Company and if to the Warrant Agent at
its Corporate Office.
Section 20. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York, without reference to principles of conflict of
laws.
Section 21. Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the Company and, the
Warrant Agent and their respective successors and assigns, and
the holders from time to time of Warrant Certificates. Nothing
in this Agreement is intended or shall be construed to confer
upon any other person any right, remedy or claim, in equity or at
law, or to impose upon any other person any duty, liability or
obligation.
Section 22. Termination. This Agreement shall
terminate at the close of business on the earlier of the Warrant
Expiration Date or the date upon which all Warrants have been
exercised, except that the Warrant Agent shall account to the
Company for cash held by it and the provisions of Section 17
hereof shall survive such termination.
Section 23. Counterparts. This Agreement may be
executed in several counterparts, which taken together shall
constitute a single document.
IN WITNESS WHEREOF, the parses hereto have, caused this
Agreement to be duly executed as of the date first above written.
FOOD COURT ENTERTAINMENT NETWORK,
INC.
By:_______________________________
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By:_______________________________
Authorized Officer
XXXXXX XXXX LLC
By:_______________________________
Authorized Officer
EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
No. FS _______ Warrants
VOID AFTER DECEMBER 17, 2001
WARRANT CERTIFICATE FOR PURCHASE
OF SERIES A COMMON STOCK
FOOD COURT ENTERTAINMENT NETWORK, INC.
This certifies that FOR VALUE RECEIVED Xxxxxx Xxxx LLC
(the "Registered Holder") is the owner of the number of Warrants
("Warrants") specified above. Each Warrant represented hereby
initially entitles the Registered Holder to purchase, subject to
the terms and conditions set forth in this Warrant Certificate
and the Warrant Agreement (as hereinafter defined), one fully
paid and nonassessable share of Series A Common Stock, $.01 value
("Common Stock"), of Food Court Entertainment Network, Inc., a
Delaware corporation (the "Company"), at any time between
December 17, 1996, and the Expiration Date (as hereinafter
defined), upon the presentation and surrender of this Warrant
Certificate with the Subscription Form attached hereto duly
executed, at the corporate office of American Stock Transfer &
Trust Company as Warrant Agent, or its successor (the "Warrant
Agent"), accompanied by payment of $2.00 (the "Purchase Price")
in lawful money of the United States of America in cash or by
official bank or certified check made payable to Food Court
Entertainment Network, Inc.
This Warrant Certificate and each Warrant represented
hereby are issued pursuant to and are subject in all respects to
the terms and conditions set forth in the Warrant Agreement (the
"Warrant Agreement"), dated January __, 1997, by and among the
Company, the Warrant Agent and Xxxxxx Xxxx LLC.
In the event of certain contingencies provided for in
the Warrant Agreement, the Purchase Price or the number of shares
of Common Stock subject to purchase upon the exercise of each
Warrant represented hereby are subject to modification or
adjustment.
Each Warrant represented hereby is exercisable at the
option of the Registered Holder, but no fractional shares of
Common Stock will be issued. In the case of the exercise of less
than all the Warrants represented hereby, the Company shall
cancel this Warrant Certificate upon the surrender hereof and
shall execute and deliver a new Warrant Certificate or Warrant
Certificates of like tenor, which the Warrant Agent shall
countersign, for the balance of such Warrants.
The term "Expiration Date" shall mean 5:00 P.M.
(New York time) on December 17, 2001, or such earlier date as the
Class A Warrants shall be redeemed. If such date shall in the
State of New York be a holiday or a day on which banks are
authorized to close, then the Expiration Date shall mean
5:00 P.M. (New York time) the next following day which in the
State of New York is not a holiday or a day on which banks are
authorized to close.
The Company shall not be obligated to deliver any
securities pursuant to the exercise of the Warrants represented
hereby unless a registration statement under the Securities Act
of 1933, as amended, with respect to such securities is
effective. The Warrants represented hereby shall not be
exercisable by a Registered Holder in any state where such
exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the
surrender hereof by the Registered Holder at the corporate office
of the Warrant Agent, for a new Warrant Certificate or Warrant
Certificates of like tenor representing an equal aggregate number
of Warrants, each of such new Warrant Certificates to represent
such number of Warrants as shall be designed by such Registered
Holder at the time of such surrender.
The Warrant may not be sold, conveyed, assigned or
otherwise transferred.
Prior to the exercise of any Warrant represented
hereby, the Registered Holder shall not be entitled to any rights
of a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends or other distributions,
and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided in the Warrant
Agreement.
The Warrants represented hereby may be redeemed at the
option of the Company, at a redemption price of $.05 per Warrant,
provided the Market Price (as defined in the Warrant Agreement)
for the Common Stock shall exceed $9.00 per share. Notice of
redemption shall be given not later than the thirtieth day before
the date fixed for redemption, all as provided in the Warrant
Agreement. On and after the date fixed for redemption, the
Registered Holder shall have no rights with respect to the
Warrants represented hereby except to receive the $.05 per
Class A Warrant upon surrender of this Warrant Certificate.
The Company and the Warrant Agent may deem and treat
the Registered Holder as the absolute owner hereof and of each
Warrant represented hereby (notwithstanding any notations of
ownership or writing hereon made by anyone other than a duly
authorized officer of the Company or the Warrant Agent) for all
purposes and shall not be affected by any notice to the contrary.
This Warrant Certificate is not valid unless
countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed, manually or in facsimile, by two
of its officers thereunto duly authorized and a facsimile of its
corporate seal to be imprinted hereon.
FOOD COURT ENTERTAINMENT NETWORK,
INC.
Dated:_____________________ By:_______________________________
By:_______________________________
[SEAL]
Countersigned:
___________________________
as Warrant Agent
By:________________________
Authorized Officer
[FORM OF REVERSE OF WARRANT CERTIFICATE]
TRANSFER FEE: $___________ PER CERTIFICATE ISSUED
SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably
elects to exercise ________ Warrants represented by this Warrant
Certificate, and to purchase the securities issuable upon the
exercise of such Warrants, and requests that certificates for
such securities shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
_____________________
_____________________
_____________________
_____________________
[please print or type name and address]
and be delivered to
_____________________
_____________________
_____________________
_____________________
[please print or type name and address]
and if such number of Warrants shall not be all the Warrants
evidenced by this Warrant Certificate, that a new Warrant
Certificate for the balance of such Warrants be registered in the
name of, and delivered to, the Registered Holder at the address
stated below.
The undersigned represents that the exercise of the
Warrants evidenced hereby was solicited by a member of the
National Association of Securities Dealers, Inc. If not
solicited by an NASD member, please write "unsolicited" in the
space below.
__________________________________
(Name of NASD Member)
Dated:____________________ X ________________________
__________________________________
__________________________________
Address
__________________________________
Taxpayer Identification Number
__________________________________
Signature Guaranteed
__________________________________
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST
CORRESPOND TO THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT
CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
MEMBER OF THE MEDALLION STAMP PROGRAM.
