EXHIBIT 6.5
TOTAL FILM GROUP, INC.
(A Delaware Corporation)
WARRANT CERTIFICATE
WARRANT NUMBER: _____NUMBER OF WARRANTS: ________
FOR VALUE RECEIVED, Total Film Group, Inc. (the "Company"), a Delaware
corporation, hereby certifies that The Orbiter Fund, a _______________
corporation, the registered holder hereof, or registered assigns ("Holder") is
entitled to purchase subject to the terms and conditions hereinafter set forth
at any time on or before 5:00 p.m., Central time on __________________ (the
"Expiration Date"), and not thereafter one (1) share of the common stock
("Common Stock") of the Company for each one (1) Warrant exercised, at a price
of $______ per share of Common Stock (the "Warrant Price"), and receive a
certificate(s) for the Common Stock so purchased, upon presentation and
surrender to the transfer agent for the Company, with the form or subscription
duly executed, and accompanied by payment of the purchase price of each share
purchased, either in cash or by certified check or bank draft, payable to the
order of the Company. Fractional shares of the Company's Common Stock will
not be issued upon the exercise of the Warrant.
THESE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE TRANSFERRED OR
SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE
ACT OR THE LAWS OF THE APPLICABLE STATE OR A "NO ACTION" OR INTERPRETIVE
LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER, AND ITS COUNSEL, TO THE EFFECT THAT THE
SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT AND SUCH STATE
STATUTES.
The Company covenants and agrees that all shares of Common Stock which
may be delivered upon the exercise of this Warrant will, upon delivery, be
free from all taxes, liens and charges with respect to the purchase thereof
hereunder. This Warrant shall not be exercised by Holder in any state where
such exercise would be unlawful such as a state in which the Company's Common
Stock is not registered. The Company will not attempt to qualify the shares
represented by this Warrant for sale in jurisdictions where holders of the
Company's Warrants reside, unless done as a part of the initial registration
of its securities.
The number of shares of Common Stock purchasable upon the exercise of
this Warrant and the purchase price shall be subject to adjustment from time
to time as set forth herein.
The Company agrees at all times to reserve or hold available a sufficient
number of shares of its Common Stock to cover the number of shares issuable
upon the exercise of this and all other Warrants of like tenor then
outstanding.
This Warrant does not entitle the Holder to any voting rights or other
rights as a shareholder of the Company, or to any other rights whatsoever
except the rights herein set forth, and no dividend shall be payable to accrue
in respect to this Warrant or the interest represented hereby, or the shares
purchasable hereunder, until or unless, and except to the extent that this
Warrant shall be exercised, and the Common Stock purchasable upon exercise
thereof shall become deliverable.
The Warrants are redeemable by the Company at any time prior to the
Expiration Date on not less than thirty (30) days prior written notice, at a
redemption price of $.01 per Warrant, provided that prior to the redemption
the closing price of the Common Stock issuable upon exercise of a Warrant
shall equal or exceed $2.25 per share for twenty (20) business days within any
period of thirty (30) consecutive business days ending within ten (10) days
preceding the written notice. If the Company shall elect to redeem Warrants,
notice of redemption shall be given to the holders of all outstanding Warrants
to whom the redemption shall apply by mailing by first-class mail a notice of
such redemption, not less than thirty (30) nor more than sixty (60) days prior
to the date fixed for redemption, to their last addresses as they shall appear
upon the registry books, but failure to give such notice by mailing to the
holder of any Warrants, or any defect therein, shall not affect the legality
or validity of the proceedings for the redemption of any other Warrants. The
notice of redemption to each holder of Warrants shall specify the date fixed
for redemption and the redemption price at which Warrants are to be redeemed,
and shall state that payment of the redemption price of the Warrants will be
made at the office of the Company upon presentation and surrender of such
Warrants, and shall also state that the right to exercise the Warrants so
redeemed will terminate as provided in this Agreement (stating the date of
such termination) and shall state the then current Warrant Price. If the
giving of notice of redemption shall have been completed as above provided,
and if funds sufficient for the redemption of the Warrants shall have been
deposited with the Company for such purpose, the right to exercise the
Warrants shall terminate at the close of business on the business day
proceeding the date fixed for redemption, and the holder of each Warrant shall
thereafter be entitled upon surrender of his Warrants only to receive the
redemption price thereof, without interest.
This Warrant is exchangeable upon the surrender hereof by the Holder to
the Company for new Warrants of like tenor and date representing in the
aggregate the right to purchase the number of shares purchasable hereunder,
each of such new Warrants to represent the right to purchase such number of
shares as many be designated by the registered owner at the time of such
surrender.
The Company may deem and treat the Holder at any time as the absolute
owner hereof for all purposes and shall not be affected by any notice to the
contrary.
The issuance of this Warrant is subject to the following conditions:
(1) If the Company shall at any time subdivide its outstanding shares of
Common Stock by recapitalization, reclassification or split-up thereof, or if
the Company shall declare a stock dividend or distribute shares of Common
Stock to its stockholders, the number of shares of Common Stock purchasable
upon exercise of this Warrant immediately prior to such subdivision shall be
proportionately increased in each instance, and if the Company shall at any
time combine the outstanding shares of Common Stock by recapitalization,
reclassification or combination thereof, the number of shares of Common Stock
purchasable upon exercise of this Warrant immediately prior to such
combination shall be proportionately decreased in each instance.
(2) If the Company shall distribute to all of the holders of its shares
of Common Stock any security (except as provided in the preceding paragraph)
or other assets (other than a distribution made as a dividend payable out of
earnings or out of any earned surplus legally available for dividends under
the laws of the jurisdiction of incorporation of the Company), the Board of
Directors shall be required to make such equitable adjustment in the Warrant
Price in effect immediately prior to the record date of such distribution as
may be necessary to preserve to the Holder of this Warrant rights
substantially proportionate to those enjoyed hereunder by such Holder
immediately prior to the happening of such distribution. Any such adjustment
shall become effective as of the day following the record date for such
distribution.
(3) Whenever the number of shares of Common Stock purchasable upon the
exercise of this Warrant is required to be adjusted as provided in the Warrant
Agency Agreement, the Warrant Price shall be adjusted (to the nearest cent) in
each instance by multiplying such Warrant Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of the Warrants
immediately prior to such adjustment, and (y) the denominator of which shall
be the number of shares of Common Stock so purchasable immediately thereafter.
(4) In case of any reclassification of the outstanding shares of Common
Stock, other that a change covered by paragraph (1) above or which solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation (other
that a consolidation merger in which the Company is the continuing corporation
and which does not result in any reclassification or capital reorganization of
the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety in connection with which the Company
is dissolved, the Holder of this Warrant shall have the right thereafter
(until the expirations of the respective rights of exercise of the Warrant) to
receive upon the exercise thereof, for the same aggregate Warrant Price
payable hereunder immediately prior to such event, the kind and amount of
shares of stock or other securities or property receivable upon such
reclassification, capital reorganization, merger or consolidation, or upon the
dissolution following any sale or other transfer, which a holder of the number
of shares of Common Stock of the Company would obtain upon exercise of the
Warrants immediately prior to such event; and if any classification also
results in a change in shares of Common Stock covered by paragraph (1) above,
then such adjustment shall be made pursuant to both paragraph (1) above and
this paragraph (4). The provisions of this paragraph (4) shall similarly
apply to successive reclassifications, or capital reorganizations, mergers or
consolidations, sales or other transfers.
(5) In case of the dissolution, liquidation or winding-up of the
Company, all rights under any of the Warrants not redeemed or expired by their
terms shall terminate on a date fixed by the Company, such date so fixed to be
not earlier than the date of the commencement of the proceedings for such
dissolution, liquidation or winding-up and not later than thirty (30) days
after such commencement date. Notice of such termination or purchase rights
shall be given to the registered Holder of this Warrant as the same shall
appear on the books of the Company, by certified or registered mail at least
thirty (30) days prior to such termination date.
(6) In case the Company shall, at any time prior to the Expiration Date
of the Warrants, and prior to the exercise thereof, offer to the holders of
its Common Stock any right to subscribe for additional shares of any class of
the Company, then the Company shall give written notice thereof to the
registered Holder of this Warrant not less than thirty (30) days prior to the
date on which the books of the Company are closed or a record date fixed for
the determination of stockholders entitled to such subscription rights. Such
notice shall specify the date as to which the books shall be closed or record
date be fixed with respect to such offer or subscription, and the right of the
holders to participate in such offer or subscription shall terminate if this
Warrant shall not be exercised on before the date of such closing of the books
or such record date.
(7) If the Company after the date hereof shall take any action affecting
the shares of its Common Stock, other than that action described above, which,
in the opinion of the Board of Directors of the Company, would materially
affect the rights of the Holder of this Warrant or the Warrant Price, the
number of shares of Common Stock purchasable on exercise of this Warrant shall
be adjusted in each instance and at such time as the Board of Directors of the
Company, in good faith, may determine to be equitable under the circumstances.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly authorized officer this ____ day of _________, _____.
Total Film Group, Inc.
By /s/ Gerald Green, President
ATTEST:
/s/ Eli Boyer, Secretary
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ASSIGNMENT FORM
(To be executed by the registered Holder to effect a
Transfer of the Within Warrant)
For Value Received
hereby sells, assigns, and transfer unto
(Please print or typewrite name and address, including postal zip code of
assignee)
this Warrant and the rights represented thereby to purchase Common Stock in
accordance with the terms and conditions thereof, and does hereby irrevocable
constitute and appoint attorney
to transfer this Warrant on the books of the Company with full power of
substitution.
Date:
Signed
<PAGE>
SUBSCRIPTION FORM
(To Be Executed by the Registered Holder to Exercise The Rights
To Purchase Common Stock Evidenced By The Within Warrant)
The undersigned hereby irrevocably subscribes
for shares of the Common Stock of Total Film
Group, Inc., pursuant and in accordance with the terms and conditions of the
Warrant and hereby makes payment of $ therefor, and
requests that certificate(s) for such shares be issued in the name of the
undersigned and be delivered to the address stated below, and if such number
of shares shall not be all of the shares purchasable hereunder, that a new
Warrant of like tenor for the balance of the remaining shares purchasable
hereunder be delivered to the undersigned at the address stated below:
Date: Signed
SIGNATURE(S) MUST BE GUARANTEED BY A FIRM WHICH IS A MEMBER OF A REGISTERED
NATIONAL STOCK EXCHANGE, OR BY A BANK (OTHER THAN A SAVINGS BANK), OR A TRUST
COMPANY. THE SIGNATURE TO THIS SUBSCRIPTION FORM MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE WARRANT. IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATSOEVER.
<PAGE>
SCHEDULE OF A-WARRANTS TO ORBITER FUND
Warrant Number of Expiration Warrant Issue
Number Warrants Date Price Date
A-1 125,000 February 7, 2002 $2.00 February 24, 1999
A-2 125,000 February 7, 2002 $2.00 February 9, 1999
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