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Exhibit 10.4
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), NOR PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY
STATE. THIS SECURITY MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED, OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (A) A REGISTRATION
STATEMENT THAT IS EFFECTIVE UNDER THE ACT OR (B) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. THIS WARRANT AND THE
SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO THE TERMS OF A
SECURITIES PURCHASE AGREEMENT, DATED AS OF DECEMBER 30, 1999 (THE "SECURITIES
PURCHASE AGREEMENT"), BETWEEN SUNRISE TELEVISION CORP. AND THE PURCHASERS
LISTED THEREIN, A COPY OF WHICH AGREEMENT MAY BE OBTAINED UPON REQUEST.
STOCK PURCHASE WARRANT
Date of Issuance: December 30, 1999 Certificate No. W-4
For value received, SUNRISE TELEVISION CORP., a Delaware corporation
("Holdings"), hereby grants to HICKS, MUSE, XXXX & XXXXX EQUITY FUND III, L.P.,
a Delaware limited partnership ("Purchaser") and its assigns and transferees,
the right to purchase from Holdings the Warrant Shares (as defined herein) at a
price per share of $.01 (the "Exercise Price"). Certain capitalized terms used
herein are defined in Section 2 hereof.
This Warrant is subject to the following provisions:
SECTION 1. Exercise of Warrant.
1A. Exercise Period. The purchase rights represented by this
Warrant may only be exercised by the Registered Holder in accordance with
Section 1B (i) below prior to the expiration of the first Exit Event Period
occurring after the date hereof; provided, however, that this Warrant may only
be exercised with respect to Vested Warrant Shares.
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised pursuant
to Section 1A when all of the following items have been delivered to Holdings
(the "Exercise Time"):
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(a) a completed Exercise Agreement, in the form, set forth
in Exhibit A hereto, executed by the Registered Holder;
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(b) this Warrant;
(c) the aggregate Exercise Price (payable in the manner
provided in subsection (viii) below); and
(d) such documentation as Holdings shall reasonably
request, including as described in Section 1B (vii) below.
(ii) Certificates for Vested Warrant Shares purchased upon
exercise of this Warrant shall be delivered by Holdings to the Registered
Holder within ten (10) business days after the date of the Exercise Time
together with any cash payable in lieu of a fraction of a share pursuant to
Section 10 hereof.
(iii) The Vested Warrant Shares issuable upon the exercise of
this Warrant shall be deemed to have been issued to the Registered Holder at
the Exercise Time, and the Registered Holder shall be deemed for all purposes
to have become the record holder of such Vested Warrant Shares at the Exercise
Time.
(iv) The issuance of certificates for Vested Warrant Shares
upon exercise of this Warrant shall be made without charge to the Registered
Holder for any issuance tax in respect thereof or other cost incurred by
Holdings in connection with such exercise and the related issuance of Vested
Warrant Shares; provided, that Holdings shall not be required to pay any taxes
in respect of the Warrant and Vested Warrant Shares with respect to any
permitted transfer of the Warrant which taxes shall be paid by the transferee
prior to the issuance of the Vested Warrant Shares.
(v) Holdings shall give to the Registered Holder not less than
ten (10) business days prior written notice (an "Exit Event Notice") of the
occurrence of an Exit Event. Upon exercise of this Warrant during an Exit Event
Period, such exercise shall be conditioned upon the consummation of such Exit
Event, and such exercise shall not be deemed to be effective until immediately
prior to the consummation of such Exit Event; provided, that in the event that
such Exit Event is not consummated, such exercise will be deemed ineffective.
(vi) Holdings shall at all times reserve and keep available out
of its authorized but unissued Shares of Common Stock solely for the purpose of
issuance upon the exercise of this Warrant, the maximum number of Warrant
Shares issuable upon the exercise of this Warrant. All Warrant Shares which are
so issuable shall, when issued, be duly and validly issued, fully paid and
nonassessable and free of preemptive rights. Holdings will use its commercially
reasonable efforts to ensure that all such Warrant Shares may be so issued
without violation by Holdings of any applicable law or governmental regulation.
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(vii) Upon exercise of this Warrant, Holdings may require
customary representations and warranties from the Registered Holder to assure
that the issuance and sale of the Warrant Shares shall not require registration
or qualification under the Securities Act or any state securities law.
(viii) The aggregate Exercise Price shall be paid by the
Registered Holder by certified or official bank check or by wire transfer of
immediately available funds to an account designated by Holdings for this
purpose; provided, however, that upon exercise of this Warrant in connection
with an Initial Public Offering, the Registered Holder may elect to pay the
aggregate Exercise Price by the surrender of Warrant Shares (which surrender
shall consist of Warrant Shares for which this Warrant is being exercised), and
without the payment of the aggregate Exercise Price in cash, in return for the
delivery to the Registered Holder of such number of Warrant Shares (rounded to
the nearest whole share) equal to the product of (1) the number of Warrant
Shares for which this Warrant is being exercised (as if the Exercise Price were
being paid in cash) and (2) the Cashless Exercise Ratio.
SECTION 2. Definitions. The following terms have the meanings set
forth below:
"Affiliate" means, as to any Person, any other Person who, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, the first Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Cashless Exercise Ratio" means a fraction, the numerator of which is
the excess of the Fair Market Value of the Warrant Shares on the date of
exercise over the Exercise Price as of the date of exercise and denominator of
which is the Fair Market Value of the Warrant Shares on the date of exercise.
"Common Stock" means the Common Stock of Holdings, par value $.01 per
share.
"Exit Event" means the occurrence of a Sale of Holdings or an Initial
Public Offering.
"Exit Event Period" means, with respect to a proposed Exit Event, the
period beginning on the date the Exit Event Notice is given and ending on the
date which is the tenth (10) business day thereafter.
"Fair Market Value" means, (a) for the purposes of any determination
being made in connection with an Initial Public Offering involving Common
Stock, the initial price to the public for a share of such Common Stock being
sold
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in such Initial Public Offering and (b) for the purposes of any determination
being made in connection with an Initial Public Offering involving any capital
stock other than Common Stock, the fair market value of one share of Common
Stock as determined in good faith by the Board of Directors of Holdings (taking
into consideration the initial price to the public for a share of such capital
stock being sold in such Initial Public Offering).
"Independent Third Party" means any person who, immediately prior to
the contemplated transaction, does not own in excess of 5% of Holdings' Common
Stock on a fullydiluted basis (a "5% Owner"), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other Person.
"Initial Public Offering" means Holdings' first underwritten public
offering of any series of Holdings' capital stock which has the unlimited right
to participate in dividends and distributions upon the liquidation of Holdings.
"Original Purchaser" means the Purchaser named in the Securities
Purchase Agreement that first acquired this Warrant (or any predecessor to this
Warrant).
"Person" means any individual, partnership, limited liability
corporation, joint venture, corporation, trust, unincorporated organization or
government or department or agency thereof.
"Registered Holder" means the holder of this Warrant as reflected in
the records of Holdings maintained pursuant to Section 8.
"Sale of Holdings" means the sale of Holdings to an Independent Third
Party or group (within the meaning of Section 13(d) of the Securities Exchange
Act of 1934, as amended) of Independent Third Parties pursuant to which such
party or parties acquire (i) capital stock of Holdings possessing the voting
power under normal circumstances to elect a majority of Holdings' board of
directors (whether by merger, consolidation, sale, transfer or exchange of
Holdings' capital stock) or (ii) all or substantially all of Holdings' assets
determined on a consolidated basis.
"Securities Purchase Agreement" means the Securities Purchase
Agreement, dated as of December 30, 1999, between Holdings and the Purchasers
named therein.
"Vested Warrant Shares" means the number of Warrant Shares reflected
on Schedule 1 hereto under the caption "Shares Vesting Quarterly" under the
name of the Purchaser (the "Purchaser Column"). That number of Warrant Shares
shown under the Purchaser Column on the line item delineated "At
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Closing" shall be fully vested upon issuance and the Warrant thereafter may be
exercised at any time for such number of Warrant Shares, subject to the terms
and conditions of this Warrant. If, on March 31, June 30, September 30 and
December 31 of each year, commencing March 31, 2000 and continuing through and
including December 31, 2002, the Original Purchaser (or any Affiliate thereof)
continues to own any Subordinated Notes of the Company purchased by the
Original Purchaser pursuant to the Securities Purchase Agreement (including,
for purposes hereof, any Subordinated Notes issued after December 30, 1999 in
lieu of cash dividends on the Subordinated Notes), that number of Warrant
Shares shown under the Purchaser Column on the line item with the corresponding
date, shall be fully vested and the Warrant thereafter may be exercised at any
time for such number of Warrant Shares (plus any other Vested Warrant Shares as
to which the Warrant has not previously been exercised), subject to the terms
and conditions of this Warrant.
"Warrant Shares" means the number shares of Common Stock issuable upon
exercise of this Warrant as determined in accordance with Schedule 1 hereto
under the name of the Purchaser (or one of its Affiliates) on such Schedule 1,
subject to adjustment as provided herein.
SECTION 3. No Voting Rights. This Warrant shall not entitle the holder
hereof to any voting rights or other rights as a stockholder of Holdings.
SECTION 4. Adjustment to Warrant Shares.
(a) If there is any change in the number of outstanding shares of
Common Stock through the declaration of stock dividends, stock splits
or similar transactions, the number of Warrant Shares issuable upon
exercise of the Warrant shall be automatically adjusted to reflect
such stock dividends, stock splits or similar transactions.
(b) In case of any reclassification of the Common Stock or any
consolidation of Holdings with, or merger of Holdings into, any other
Person, any merger of another Person into Holdings (other than a
merger that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock), any
sale or transfer of all or substantially all of the assets of Holdings
or any compulsory share exchange pursuant to which share exchange the
Common Stock is converted into other securities, cash or other
property, then lawful provision shall be made as part of the terms of
such transaction whereby the Holder of the Warrant shall have the
right thereafter, during the period the Warrant shall be exercisable,
to exercise the Warrant for (but only for) the kind and amount of
securities, cash and other property receivable upon the
reclassification, consolidation, merger, sale, transfer or share
exchange by a holder of the number of shares of Common Stock into
which the Warrant would have been exercisable immediately prior to the
reclassification, consolidation, merger, sale, transfer or share
exchange. Holdings or the Person formed by the
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consolidation or resulting from the merger or which acquires such
assets or which acquires Holdings' shares, as the case may be, shall
make provision in its certificate or articles of incorporation or
other constituent documents to establish such rights. The certificate
or articles of incorporation or other constituent documents shall
provide for adjustments, which, for events subsequent to the effective
date of the certificate or articles of incorporation or other
constituent document, shall be as nearly equivalent as may be
practicable. to the adjustments provided for in this Section 4(b). The
provisions of this Section 4(b) shall similarly apply to successive
reclassifications, consolidations, mergers, sales, transfers or share
exchanges.
SECTION 5. Replacement. Upon receipt of evidence satisfactory to
Holdings (an affidavit of the Registered Holder shall be satisfactory) of the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing this Warrant, and in the case of any such loss, theft or
destruction, upon receipt of indemnity satisfactory to Holdings or, in the case
of any such mutilation upon surrender of such certificate, Holdings shall, at
the expense of the Registered Holder, execute and deliver in lieu of such
certificate a new certificate of like kind representing the same rights
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
SECTION 6. Notices. Except as otherwise expressly provided herein, all
notices and deliveries referred to in this Warrant shall be in writing, shall
be delivered personally, sent by registered or certified mail, return receipt
requested and postage prepaid or sent via nationally recognized overnight
courier or via facsimile and shall be deemed to have been given when so
delivered (or when received, if delivered by any other method) if sent (i) to
Holdings, at its principal executive offices and (ii) to the Registered Holder,
at such holder's address as it appears in the records of Holdings (unless
otherwise indicated by such holder).
SECTION 7. Warrant Register. Holdings shall maintain at its principal
executive offices books for the registration and, to the extent permitted by
(a) the laws of the State of Delaware and (b) pursuant to Section 4 hereof, the
registration of transfer of the Warrant. Upon any transfer of the Warrant, the
Registered Holder shall deliver to Holdings a Transfer Agreement substantially
in the form set forth in Exhibit B hereto. Holdings may deem and treat the
Registered Holder as the absolute owner hereof (notwithstanding any notation of
ownership or other writing hereon made by anyone) for all purposes and shall
not be affected by any notice to the contrary. As a condition to the transfer
of this Warrant, the transferee shall be required to deliver a written
acknowledgment of its agreement to the vesting provisions of this Warrant.
SECTION 8. Fractions of Shares. Holdings may, but shall not be
required to, issue a fraction of a Warrant Share upon the exercise of this
Warrant. As to any fraction of a share which Holdings elects not to issue,
Holdings shall
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make a cash payment in respect of such fraction in an amount equal to the same
fraction of the fair market value of a Warrant Share on the date of such
exercise as determined by the Board of Directors of Holdings in its sole
discretion.
SECTION 9. Descriptive Headings; Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted
for convenience only and do not constitute a part of this Warrant. THE
PROVISIONS OF THIS WARRANT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAW OR CHOICE OF
LAW OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION WHICH WOULD RESULT IN
THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, Holdings has caused this Warrant to be signed and
attested by its duly authorized officers and to be dated the date hereof.
SUNRISE TELEVISION CORP.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Executive Vice President
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EXHIBIT A
EXERCISE AGREEMENT
To:_____________________________________________ Dated:_______________________
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. W-_____________ ), hereby agrees to subscribe for the
purchase of _________ Vested Warrant Shares covered by such Warrant.
Signature:__________________________
Name:_______________________________
Address:____________________________
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EXHIBIT B
FORM OF TRANSFER AGREEMENT
FOR VALUE RECEIVED,_____________________________________________________
hereby sells, assigns and transfers unto
Name____________________________________________________________________________
(please typewrite or print in block letters)
Address_________________________________________________________________________
its right to purchase _____________ shares of Common Stock represented by this
Warrant and does hereby irrevocably constitute and appoint Attorney, to
transfer the same on the books of Holdings, with full power of substitution in
the premises.
Date:_____________________________
Signature:__________________________
Name:_______________________________
Address:____________________________
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SCHEDULE 1
SUNRISE TELEVISION CORP.
WARRANT SHARES VESTING SCHEDULE
DATE HMTF FUND III HM3 COINVESTORS, X.X. XXXXX EQUITY ASSOCIATES
---- ------------------------------- ------------------------------- -------------------------------
Shares Vesting Cumulative Shares Vesting Cumulative Shares Vesting Cumulative
Quarterly Shares Vested Quarterly Shares Vested Quarterly Shares Vested
-------------- ------------ -------------- ------------- -------------- -------------
At Closing
(December 30, 1999) 2,968.2 2,968.2 91.8 91.8 340 340
March 31, 2000 2,968.2 5,936.4 91.8 183.6 340 680
June 30, 2000 2,968.2 8,904.6 91.8 275.4 340 1,020
September 30, 2000 2,968.2 11,872.8 91.8 367.2 340 1,360
December 31, 2000 2,968.2 14,841.0 91.8 459.0 340 1,700
March 31, 2001 2,968.2 17,809.2 91.8 550.8 340 2,040
June 30, 2001 2,968.2 20,777.4 91.8 642.6 340 2,380
September 30, 2001 2,968.2 23,745.6 91.8 734.4 340 2,720
December 31, 2001 3,492.0 27,237.6 108.0 842.4 400 3,120
March 31, 2002 3,492.0 30,729.6 108.0 950.4 400 3,520
June 30, 2002 3,492.0 34,221.6 108.0 1,058.4 400 3,920
September 30, 2002 3,492.0 37,713.6 108.0 1,166.4 400 4,320
December 31, 2002 3,492.0 41,205.6 108.0 1,274.4 400 4,720
