Exhibit 10.47
THE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND THEY MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED
OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE ACT
WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR
(ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE ACT BUT ONLY
UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE
COMPANY, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY, THAT THE
PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE ACT AS
WELL AS ANY APPLICABLE "BLUE SKY" OR SIMILAR STATE SECURITIES LAW.
July ___, 2000
URBAN COOL NETWORK, INC.
COMMON STOCK PURCHASE WARRANT
The Transferability of this Warrant is
Restricted as Provided in Section 3
W-__ Warrants to Purchase ________ Shares of Common Stock
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by Urban Cool Network, Inc., a Delaware corporation (the
"Company"), ________________________ is hereby granted the right to purchase, at
the initial exercise price of $2.00 per share (subject to adjustment as provided
herein), at any time from ____________, 2000 [6 months after date of original
issuance] until 5:00 p.m., New York City time, on __________ 2005, [5 years
after date of issuance] __________ shares of common stock of the Company, $.01
par value per share (the "Shares").
Each Common Stock Purchase Warrant (each, a "Warrant") is initially
exercisable at a price
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of $2.00 per Share, payable in cash or by certified or official bank check in
New York Clearing House funds, subject to adjustments as provided in Section 5
hereof. Upon surrender of this Warrant, with the annexed Subscription Form duly
executed, together with payment of the Purchase Price (as hereinafter defined)
for the Shares purchased at the offices of the Company, the registered holder of
this Warrant (the "Holder") shall be entitled to receive a certificate or
certificates for the Shares so purchased.
1. Exercise of Warrant.
The purchase rights represented by this Warrant are exercisable at
the option of the Holder, in whole or in part (but not as to fractional Shares
underlying this Warrant), during any period in which this Warrant may be
exercised as set forth above. In the case of the purchase of less than all the
Shares purchasable under this Warrant, the Company shall cancel this Warrant
upon the surrender hereof and shall execute and deliver a new Warrant of like
tenor for the balance of the Shares purchasable hereunder.
2. Issuance of Certificates.
Upon the exercise of this Warrant and payment in full for the
Shares, the issuance of certificates for Shares underlying this Warrant shall be
made forthwith (and in any event within five (5) business days thereafter)
without charge to the Holder, including, without limitation, any tax which may
be payable in respect of the issuance thereof, and such certificates shall
(subject to the provisions of Section 3 hereof) be issued in the name of, or in
such names as may be directed by, the Holder; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such certificates in a
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name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid. The certificates representing the Shares underlying this
Warrant shall be executed on behalf of the Company by the manual or facsimile
signature of the present or any future Chairman, Vice Chairman, President or
Vice President and Secretary or Assistant Secretary of the Company.
3. Restriction on Transfer; Registration Under the Securities Act of 1933,
as amended.
3.1 Restriction on Transfer. Neither this Warrant nor any Shares issuable
upon exercise hereof has been registered under the Securities Act of 1933, as
amended (the "Act"), and none of such securities may be offered, sold, pledged,
hypothecated, assigned or transferred except (i) pursuant to a registration
statement under the Act which has become effective and is current with respect
to such securities or (ii) pursuant to a specific exemption from registration
under the Act but only upon a Holder hereof first having obtained the written
opinion of counsel to the Company, or other counsel reasonably acceptable to the
Company, that the proposed disposition is consistent with all applicable
provisions of the Act as well as any applicable "Blue Sky" or similar state
securities law. Upon exercise, in part or in whole, of this Warrant, each
certificate issued representing the Shares underlying this Warrant shall bear a
legend to the foregoing effect.
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3.2 Demand Registration.
(a) At any time during the five-year period commencing 12 months after the
date of original issuance of the Warrants, if the Company is subject to the
reporting requirements of Section 13 or Section 15(g) under the Exchange Act of
1934, as amended (the "Exchange Act"), the Holders of the Warrants and/or Shares
representing a "Majority" (as hereinafter defined) of such securities shall have
the right (which right is in addition to the registration rights under Section
3.3 hereof), to have the Company prepare and file with the Securities and
Exchange Commission (the "Commission"), on one occasion, a registration
statement and such other documents, including a prospectus, as may be necessary
in the opinion of counsel for the Company, and counsel for the Holders, if any,
and the Holders, in order to comply with the provisions of the Securities Act,
so as to permit a public offering and sale of their respective Shares for nine
(9) consecutive months by such Holders and any other Holders of the Warrants
and/or Shares who notify the Company within ten (10) days after receiving notice
from the Company of such request. The Company covenants and agrees to give
written notice of any registration request under this Section 3.2 by any Holders
or Holders to all other Holders of Warrants and Shares within ten (10) days of
the receipt of any such registration request.
(b) The Company shall use its best efforts to file a registration
statement within thirty (30) days of receipt of any demand therefor and to have
any registration statement declared effective at the earliest possible time. The
Company shall furnish each Holder desiring to sell Shares such number of
prospectuses as shall reasonably be requested.
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3.3 Piggyback Registration.
(a) If, at any time during the five-year period commencing 12 months after
the date of original issuance of the Warrants, the Company proposes to register
any of its securities under the Securities Act (other than in connection with
the merger, acquisition or exchange offer on Form S-4 or pursuant to Form S-8 or
successor forms) it will give written notice by registered mail, at least thirty
(30) days prior to the filing of each such registration statement, to the
Holder(s) of the Warrants and/or the Shares of its intention to do so. Upon the
written request of any Holder of the Warrants and/or the Shares given within ten
(10) days after receipt of any such notice of his desire to include any Shares
in such proposed registration statement, the Company shall afford such Holder(s)
of the Warrants and/or the Shares the opportunity to have any such Shares
registered under such registration statement.
(b) Notwithstanding the provisions of this Section 3.3 the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 3.3 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the effective date thereof.
3.4 Certain Covenants with Respect to Registration. In connection with any
registration under Sections 3.2 or 3.3 hereof, the Company covenants and agrees
as follows:
(a) The Company shall use its best efforts to cause any registration
statement to be declared effective at the earliest possible time, and shall
furnish each Holder desiring to sell Warrant Securities such number of
prospectuses as shall be reasonably required.
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(b) The Company shall pay all costs (excluding fees and expenses of
Holder(s)' counsel and any underwriting or selling commissions or other charges
of any broker-dealer acting on behalf of Holder(s)), fees and expenses in
connection with all registration statements filed pursuant to Sections 3.2 and
3.3 hereof including, without limitation, the Company's legal and accounting
fees, printing expenses, blue sky fees and expenses.
(c) The Company will take all necessary action which may be required
in qualifying or registering the Warrants and Shares or New Warrants and New
Warrant Shares, as defined in Section 6 hereof, (collectively, the "Warrant
Securities") included in a registration statement for offering and sale under
the securities or blue sky laws of such states as reasonably are requested by
the Holder(s), provided that the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Holder(s) of the Warrant
Securities to be sold pursuant to any registration statement and each person, if
any, who controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), against all loss, claim, damage, expense or liability (including all
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may become subject under the Act, the
Exchange Act or any other statute, common law or otherwise, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in such registration statement executed by the Company or based upon
written information furnished by the Company filed in any jurisdiction in order
to qualify the Warrant Securities under the securities laws thereof or filed
with the Securities and Exchange
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Commission (the "Commission"), any state securities commission or agency, the
National Association of Securities Dealers, Inc., The Nasdaq Stock Market or any
securities exchange, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements contained
therein not misleading, unless such statement or omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Holder(s) expressly for use in such registration statement, any amendment or
supplement thereto or any application, as the case may be. If any action is
brought against the Holder(s) or any controlling person of the Holder(s) in
respect of which indemnity may be sought against the Company pursuant to this
Section 3.4(c), the Holder(s) or such controlling person shall within thirty
(30) days after the receipt thereby of a summons or complaint notify the Company
in writing of the institution of such action and the Company shall assume the
defense of such action, including the employment and payment of reasonable fees
and expenses of counsel (which counsel shall be reasonably satisfactory to the
Holder(s) or such controlling person), but the failure to give such notice shall
not affect such indemnified person's right to indemnification hereunder except
to the extent that the Company's defense of such action was materially adversely
affected thereby. The Holder(s) or such controlling person shall have the right
to employ its or their own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of the Holder(s) or such controlling
person unless the employment of such counsel shall have been authorized in
writing by the Company in connection with the defense of such action, the
Company shall not have employed counsel to have charge of the defense of such
action or such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to the Company (in which case the Company shall
not have the right to direct the defense of such
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action on behalf of the indemnified party or parties), in any of which events
the fees and expenses of not more than one additional firm of attorneys for the
Holder(s) and/or such controlling person shall be borne by the Company. Except
as expressly provided in the previous sentence, in the event that the Company
shall not previously have assumed the defense of any such action or claim, the
Company shall not thereafter be liable to the Holder(s) or such controlling
person in investigating, preparing or defending any such action or claim. The
Company agrees promptly to notify the Holder(s) of the commencement of any
litigation or proceedings against the Company or any of its officers, directors
or controlling persons in connection with the resale of the Warrant Securities
or in connection with such registration statement. The Company agrees to notify
promptly the Holder(s) of the commencement of any litigation or proceedings
against the Company or any of its officers, directors or controlling persons in
connection with the resale of any of the Warrant Securities in connection with
such registration statement. The Company further agrees that upon demand by an
indemnified person, at any time or from time to time, it will promptly reimburse
such indemnified person for any loss, claim, damage, liability, cost or expense
actually and reasonably paid by the indemnified person as to which the Company
has indemnified such person pursuant hereto. Notwithstanding the foregoing
provisions of this Section 3.4(c), any such payment or reimbursement by the
Company of fees, expenses or disbursements incurred by an indemnified person in
any proceeding in which a final judgment by a court of competent jurisdiction
(after all appeals or the expiration of time to appeal) is entered against any
Registration Rights Holder or such indemnified person as a direct result of any
Registration Rights Holder or such person's gross negligence or willful
misfeasance will be promptly repaid to the Company.
(e) The Holder(s) of the Warrant Securities to be sold pursuant to a
registration
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statement, and their successors and assigns, shall severally, and not jointly,
indemnify the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished in writing by or on behalf of such Holders, or their successors or
assigns, for specific inclusion in such registration statement. The Holder(s)
further agree(s) that upon demand by an indemnified person, at any time or from
time to time, they will promptly reimburse such indemnified person for any loss,
claim, damage, liability, cost or expense actually and reasonably paid by the
indemnified person as to which the Holder(s) have indemnified such person
pursuant hereto. Notwithstanding the foregoing provisions of this Section
3.3(d), any such payment or reimbursement by the Holder(s) of fees, expenses or
disbursements incurred by an indemnified person in any proceeding in which a
final judgment by a court of competent jurisdiction (after all appeals or the
expiration of time to appeal) is entered against the Company or such indemnified
person as a direct result of the Company or such person's gross negligence or
willful misfeasance will be promptly repaid to the Holder(s).
(f) Nothing contained in this Agreement shall be construed as
requiring the Holder(s) to exercise their Warrants or New Warrants prior to the
initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall furnish to each Holder participating in the
offering and to each underwriter, if any, and the Placement Agent, a signed
counterpart, addressed to such Holder
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or underwriter, if any, and the Placement Agent, of (i) an opinion of counsel to
the Company, dated the effective date of such registration statement (and, if
such registration includes an underwritten public offering, an opinion dated the
date of the closing under the underwriting agreement), and (ii) a "cold comfort"
letter dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, a letter dated the date
of the closing under the underwriting agreement) signed by the independent
public auditors who have issued a report on the Company's financial statements
included in such registration statement, in each case covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(h) For the purposes of this Agreement, the term "Majority" in
reference to the Registration Rights Holders of Shares and/or Warrant Shares
shall mean in excess of fifty percent (50%) of the then outstanding Shares
and/or Warrant Shares (assuming the exercises of all Warrants) that (i) are not
held by the Company, an affiliate (excluding, if applicable, the Placement Agent
and its affiliates, officers and directors), officer, creditor, employee or
agent thereof or any of their respective affiliates, member of their family,
persons acting as nominees or in conjunction therewith and (ii) have not been
resold to the public pursuant to a registration statement filed with the
Commission under the Securities Act.
4. Price.
4.1 Initial and Adjusted Purchase Price. The initial purchase price shall
be $2.00
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per Share. The adjusted purchase price shall be the price which shall result
from time to time from any and all adjustments of the initial purchase price in
accordance with the provisions of Section 5 hereof.
4.2 Purchase Price. The term "Purchase Price" herein shall mean the
initial purchase price or the adjusted purchase price, depending upon the
context.
5. Adjustments of Purchase Price and Number of Shares.
In the event that, prior to the issuance by the Company of all the
Shares issuable upon exercise of this Warrant, there shall be any change in the
outstanding common stock of the Company by reason of the declaration of stock
dividends, or through stock splits or combinations, the remaining Shares still
subject to this Warrant and the purchase price thereof shall be appropriately
adjusted (but without regard to fractions) by the Board of Directors of the
Company to reflect such change.
6. Merger or Consolidation.
In case of any consolidation of the Company with, or merger of the
Company with, or merger of the Company into, another corporation (other than a
consolidation or merger which does not result in any reclassification or change
of the outstanding common stock of the Company), the corporation formed by such
consolidation or merger shall execute and deliver to the Holder a supplemental
warrant agreement providing that the Holder shall have the right thereafter
(until the expiration of such Warrant) to receive, upon exercise of this
Warrant, the kind and amount of shares of stock and other securities and
property receivable upon such consolidation or merger by a holder
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of the number of shares of common stock of the Company for which this Warrant
might have been exercised immediately prior to such consolidation, merger, sale
or transfer. The above provisions of this Section 6 shall similarly apply to
successive consolidations or mergers.
7. Exchange and Replacement of Warrant.
This Warrant is exchangeable without expense, upon the surrender
hereof by the registered Holder at the principal executive office of the Company
for a new Warrant of like tenor and date representing in the aggregate the right
to purchase the same number of Shares as are purchasable hereunder in such
denominations as shall be designated by the Holder hereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant, and, in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory
to it, and reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new Warrant of like tenor, in lieu of this
Warrant.
8. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of Shares on the exercise of this Warrant, nor shall it be required to
issue scrip or pay cash in lieu of fractional interests, it being the intent of
the parties that all fractional interests shall be eliminated.
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9. Reservation of Securities.
The Company shall at all times reserve and keep available out of its
authorized common stock, solely for the purpose of issuance upon the exercise of
this Warrant, such number of Shares as shall be issuable upon the exercise
hereof. The Company covenants and agrees that, upon exercise of this Warrant and
payment of the Purchase Price therefor, all Shares issuable upon such exercise
shall be duly and validly issued, fully paid and nonassessable.
10. Notices to Warrant Holders.
Nothing contained in this Warrant shall be construed as conferring
upon the Holder hereof the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of
directors or any other matter, or as having any rights whatsoever as a
stockholder of the Company.
11. Notices.
All notices, requests, consents and other communications required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed or sent by certified, registered, or express mail, postage prepaid,
and shall be deemed given when so delivered personally, telegraphed or, if
mailed, five days after the date of deposit in the United States mails, as
follows:
(a) If to the Company, to:
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Urban Cool Network, Inc.
1401 Elm Street, Suite 1955
Dallas, Texas 75202
Attn: Jacob R. Miles III, Chief Executive Officer
(b) If to the registered Holder, to the address of such Holder as shown on
the books of the Company.
12. Supplements and Amendments. The Company and the Placement Agent may
from time to time supplement or amend the Warrant Certificates without the
approval of any Holders of the Warrant Certificates (other than the Placement
Agent) in order to cure any ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent with any provisions
herein, or to make any other provisions in regard to matters or questions
arising hereunder which the Company and the Placement Agent may deem necessary
or desirable and which the Company and the Placement Agent deem shall not
adversely affect the interests of the Holders of Warrant Certificates. This
Warrant Agreement may otherwise be amended, modified, superseded, renewed or
extended only by a written instrument signed by the Company and the holders of
at least a majority of the Warrants.
13. Successors.
All the covenants, agreements, representations and warranties
contained in this Warrant shall bind the parties hereto and their respective
heirs, executors, administrators, distributees, successors and assigns.
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14. Headings.
The headings in this Warrant are inserted for purposes of
convenience only and shall have no substantive effect.
15. Law Governing.
This Warrant is delivered in the State of New York and shall be
construed and enforced in accordance with, and governed by, the laws of the
State of New York, without giving effect to conflicts of law principles.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its corporate name by, and such signature to be attested to by, a duly
authorized officer and has caused its corporate seal to be affixed hereto on the
date first above written.
URBAN COOL NETWORK, INC.
[SEAL]
By: _____________________________________
Jacob R. Miles III
Chief Executive Officer
Attest:
_________________________________
Name:
Title:
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URBAN COOL NETWORK, INC.
SUBSCRIPTION FORM
(To be Executed by the Registered Holder
in order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to
purchase _________ Shares represented by this Warrant in accordance to the
conditions hereof and herewith makes payment of the Purchase Price of such
Shares in full.
_______________________________________
Signature
_______________________________________
Address
_______________________________________
Social Security Number or Taxpayer's
ID Number
Dated:____________________________
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