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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) February 5, 1997
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Byron Preiss Multimedia Company, Inc.
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(Exact name of registrant as specified in its charter)
New York 1-13084 13-3676574
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State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
24 West 25th Street, New York, New York 10010
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (212) 989-6252
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Not Applicable
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(Former name or former address, if changed since last report.)
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Item 7. Financial Statements and Exhibits:
(a) Financial Statement of businesses acquired.
Not applicable.
(b) Pro Forma financial information.
Not applicable.
(c) Exhibits:
10.1 Form of Offshore Securities Subscription
Agreement.
10.2 Form of 8% Convertible Debenture payable by
the Company.
10.3 Form of Warrants issued in connection with
the Transaction.
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Item 9 Sales of Equity Securities Pursuant to Regulation S
On February 5, 1997, Byron Preiss Multimedia Company, Inc.
(the "Company") completed the sale (the "Transaction") of 8.0% Convertible
Debentures due January 31, 1999 (the "Debentures") in an aggregate principal
amount of $2,000,000 in reliance upon the exemption from registration under
Regulation S ("Regulation S") afforded by the Securities Act of 1933, as
amended, to the following foreign affiliated entities: Baybridge Securities,
Blue Chip Securities Limited, Allied Balkan Investments Limited and AT
Investments.
In connection with the Transaction, the Company received net
proceeds in the amount of approximately $1.84 million (excluding legal,
accounting and other miscellaneous expenses) , which, at this time, the Company
intends to use to complete acquisitions and for additional working capital. The
Debentures are convertible, at the holders (the "Holders") option, anytime
commencing 45 days after the issue thereof, into shares of common stock, $.001
par value per share, of the Company (the "Common Stock"), at a conversion price
for each share of Common Stock equal to the lower of (a) 70% of the average
closing bid price of the Common Stock for the (5) five business days immediately
preceding the conversion date or (b) 75% of the average of the closing bid price
of the Common Stock for the (5) five business days immediately preceding the
date of subscription by the Holder thereof, in each case as reported by the
National Association of Securities Dealers Automated Quotation System
("NASDAQ"). The Company is entitled, at its option, to redeem part or all of the
Debentures being converted by paying to the Holders the product of (i) the
average market price for the 5 consecutive trading days as reported by NASDAQ
prior to the notice of conversion, and (ii) the number of shares of Common Stock
that would be issuable if the Debentures were converted.
In connection with the Transaction, the Company entered into
an Offshore Securities Subscription Agreement with each of the Investors
pursuant to which, among other things, the Investors made certain
representations and warranties relating to their respective purchase of the
securities in accordance with the requirements and conditions of Regulation S
and agreed to take all necessary steps to ensure compliance with Regulations S.
In addition, as part of its arrangement with VenGua Capital
Markets, Ltd. ("VenGua"), the European based broker involved in the Transaction,
the Company issued warrants (the "Warrants") to VenGua, and an affiliate
thereof, to purchase an aggregate of 50,000 shares of Common Stock. The Warrants
are exercisable for shares of Common Stock at any time from and after February
1, 1998 to and including January 31, 1999 at a purchase price of $2.40 per
share, which price may be adjusted upon the occurrence of certain events,
including, but not limited to, stock splits and capital reorganizations. The
holders of the Warrants each represented that they are purchasing the Warrants
in
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accordance with the requirements and conditions of Regulation S and agreed to
take all necessary steps to ensure compliance with Regulation S.
The Company also entered into an Investor Relations Consulting
Agreement (the "Consulting Agreement") with VenGua Capital Markets pursuant to
which, among other things, VenGua Capital Markets was retained as an investor
relations advisor for consideration of Sixty Thousand U.S. Dollars (US $60,000)
upon signing of said agreement and Fifteen Thousand U.S. Dollars (US $15,000)
per month thereafter through June 15, 1997. The Consulting Agreement is
terminable by either party upon thirty days notice.
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Signatures.
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
BYRON PREISS MULTIMEDIA COMPANY, INC.
By: /s/ James R. Dellomo
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Name: James R. Dellomo
Title: Chief Financial Officer
Date: February 19, 1997
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OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT dated as of
___________, 1997 (the "Agreement"), is executed in reliance upon the exemption
from registration afforded by Regulation S ("Regulation S") as promulgated by
the Securities and Exchange Commission ("SEC"), under the Securities Act of
1933, as amended (the "1933 Act"). Capitalized terms used herein and not
defined shall have the meanings given to them in Regulation S.
This Agreement has been executed by the undersigned "Buyer" in connection
with the private placement of 8.0% Convertible Debentures of Byron Preiss
Multimedia Company, Inc., a corporation organized under the laws of New York,
with its principal executive offices located at 24 W. 25th Street, 10th Floor,
New York, N.Y. 10010 (hereinafter referred to as "Seller"). Buyer hereby
represents and warrants to, and agrees with Seller that:
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER
(THE "1933 ACT"), AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES (AS DEFINED IN REGULATION S OF THE 1933 ACT) OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN REGULATION S OF
THE 1933 ACT) EXCEPT PURSUANT TO REGISTRATION UNDER OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT.
1. Agreement To Subscribe; Purchase Price.
(a) Subscription. The undersigned Buyer hereby subscribes for and
agrees to purchase the Sellers 8.0% Convertible Debentures substantially in the
form of the Debentures attached as Exhibit A hereto and having an aggregate
original principal amount of Two Million United States Dollars (U.S.
$2,000,000) (singly, a "Debenture," and collectively, the "Debentures"), at an
aggregate purchase price as set forth in subsection (b) herein.
(b) Payment. The Purchase Price for the Buyer's portion of the
Debentures shall be _________________________ United States Dollars
(U.S. $_________) (the "Purchase Price"), which shall be payable at each
closing pursuant to Section 1(c) herein by delivering immediately available
funds in United States Dollars by wire transfer to the designated depository of
Seller for closing by delivery of securities versus payment.
(c) Closing. Subject to the satisfaction of the conditions set
forth in Sections 7 and 8 hereof, the closing of the transactions contemplated
by this Agreement shall occur from time to time in denominations of not less
than $50,000 but in any event $2,000,000 shall close on or before January 31,
1997, and the balance on or before May 5, 1997, or such earlier or later date
as is mutually agreed to in writing by Buyer and Seller.
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2. Buyer Representations and Covenants; Access to Information.
Offshore Transaction. In connection with the purchase and sale of
the Debentures, Buyer represents and warrants to, and covenants and agrees with
Seller as follows:
(i) Buyer is not a natural person and is not organized under
the laws of any jurisdiction within the United States (as defined in
Regulation S), was not formed by a U.S. Person (as defined in Section
902(o) of Regulation S) for the purpose of investing in securities not
registered under the 1933 Act and is not otherwise a U.S. Person. Buyer
is not, and on the closing date will not be, an affiliate of Seller;
(ii) At the time the buy order was originated, Buyer was outside
the United States and is outside of the United States as of the date of
the execution and delivery of this Agreement;
(iii) No offer to purchase the Debentures or the common stock of
Seller issuable upon conversion of the Debentures (collectively, the
"Securities"), was made by Buyer in the United States;
(iv) Buyer is purchasing the Securities for its own account
and Buyer is qualified to purchase the Securities under the laws of its
jurisdiction of residence, and the offer and sale of the Securities
will not violate the securities or other laws of such jurisdiction;
(v) All offers and sales of any of the Securities by Buyer
prior to the end of the Restricted Period (as hereinafter defined)
shall be made in compliance with any applicable securities laws of any
applicable jurisdiction and in accordance with Rule 903 and 904, as
applicable, of Regulation S or pursuant to registration of the
Securities under the 1933 Act or pursuant to an exemption from
registration. In any case, none of the Securities have been and will
be offered or sold by Buyer to, or for the account or benefit of, a U.S.
Person or within the United States until after the end of the forty
(40) day period commencing on the later of (x) the date of closing of
the offering of the Securities or (y) the date of the first offer of
the Securities to persons other than distributors (the "Restricted
Period"), as certified by Buyer to Seller, and thereafter only
pursuant to a Registration Statement or an applicable exemption from
registration;
(vi) The transactions contemplated by this Agreement (a) have
not been and will not be pre-arranged by Buyer with a purchaser located
in the United States or a purchaser which is a U.S. Person, and (b) are
not and will not be part of a plan or scheme by Buyer, to evade the
registration provisions of the 1933 Act;
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(vii) Buyer understands that the Securities are not registered
under the 1933 Act and are being offered and sold to it in reliance on
specific exclusions from the registration requirements of Federal and
State securities laws of the United States, and that Seller is relying
upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of Buyer set forth
herein in order to determine the applicability of such exclusions and
the suitability of Buyer and any purchaser from Buyer to acquire the
Securities;
(viii) Buyer shall take all reasonable steps to ensure its
compliance with Regulation S and shall promptly send to each purchaser
who acts as a distributor, dealer or a person receiving a selling
concession, fee or other remuneration in respect of any of the
Securities, who purchases prior to the expiration of the Restricted
Period referred to in subparagraph (v) above, a confirmation or other
notice to the purchaser stating that the purchaser is subject to the
same restrictions on offers and sales as Buyer pursuant to Section
903(c)(2)(iv) of Regulation S;
(ix) Buyer has not conducted and shall not conduct any
"directed selling efforts" as that term is defined in Rule 902(b) of
Regulation S; nor has Buyer conducted any general solicitation relating
to the offer and sale of any of the Securities in the United States or
elsewhere;
(x) This Agreement has been duly authorized, validly executed
and delivered on behalf of Buyer and is a valid and binding agreement
in accordance with its terms, subject to general principals of equity
and to bankruptcy or other laws affecting the enforcement of creditors'
rights generally;
(xi) The execution and delivery of this Agreement and the
consummation of the purchase of the Securities, and the transactions
contemplated by this Agreement do not and will not conflict with or
result in a breach by Buyer of any of the terms or provisions of, or
constitute a default under, the articles of incorporation or by-laws
(or similar constitutive documents) of Buyer or any indenture,
mortgage, deed of trust, or other material agreement or instrument to
which Buyer is a party or by which it or any of its properties or assets
are bound, or any existing applicable law, rule or regulation of the
United States or any State thereof or any applicable decree, judgment
or order of any Federal or State court, Federal or State regulatory
body, administrative agency or other United States governmental body
having jurisdiction over Buyer or any of its properties or assets;
(xii) All invitations, offers and sales of or in respect of,
any of the Securities, by Buyer and any distribution by Buyer of any
documents relating to any offer by it of any of the Securities will be
in compliance with applicable laws and regulations and will be made in
such a manner that no prospectus need be filed and
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no other filing need be made by Seller with any regulatory authority
or stock exchange in any country or any political sub-division of any
country;
(xiii) Buyer will not make any offer or sale of the Securities
by any means which would not comply with the laws and regulations of
the territory in which such offer or sale takes place or to which such
offer or sale is subject or which would in connection with any such
offer or sale impose upon Seller any obligation to satisfy any public
filing or registration requirement or provide or publish any
information of any kind whatsoever or otherwise undertake or become
obligated to do any act;
(xiv) Neither the Buyer nor any of its affiliates has entered,
has the intention of entering, or will during the Restricted Period
enter into any put option, short position or other similar instrument
or position with respect to any of the Securities or securities of the
same class as the Securities;
(xv) the Buyer (or others for whom it is contracting hereunder)
has been advised to consult its own legal and tax advisors with
respect to applicable resale restrictions and applicable tax
considerations and it (or others for whom it is contracting hereunder)
is solely responsible (and the Seller is not in any way responsible)
for compliance with applicable resale restrictions and applicable tax
legislation;
(xvi) No Government Recommendation or Approval. Buyer
understands that no Federal or State or foreign government agency has
passed on or made any recommendation or endorsement of the Securities;
(xvii) Current Public Information. Buyer acknowledges that it
and its advisors, if any, have been furnished with all publicly
available materials relating to the business, finances and operations
of Seller and all publicly available materials relating to the offer
and sale of the Securities, in each case which have been requested by
Buyer. Buyer further acknowledges that it and its advisors, if any,
have had the opportunity to ask questions of the Seller regarding the
business, operations and financial condition of Seller, and have
received complete and satisfactory answers to such inquiries;
(xviii) Buyer's Sophistication. Buyer acknowledges that the
purchase of the Securities involves a high degree of risk, including
the total loss of Buyer's investment. Buyer has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of purchasing the Securities and is
capable of bearing a complete loss of its investment hereunder; and
(xix) Tax Status. Buyer is not a "10-percent Shareholder"
(as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code)
of Seller.
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3. Seller Representations and Covenants.
(a) Reporting Company Status. Seller is a "Reporting Issuer" as
defined by Rule 902 of Regulation S. Seller has registered its Common Stock,
$.001 par value per share (the "Common Stock"), pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
Common Stock is listed and trades on NASDAQ Small Cap Market. Seller has filed
all reports required to be filed pursuant to all reporting obligations under
either Section 13(a) or 15(d) of the Exchange Act for a period of at least
twelve (12) months immediately preceding the offer or sale of the Securities (or
for such shorter period that Seller has been required to file such material).
(b) Current Public Information. Seller has furnished Buyer with
copies of its most recent reports, as amended, filed under the Exchange Act
referred to in Section 3(a) above, and such other publicly available documents
as requested by Buyer.
(c) Offshore Transaction. Seller has not offered any of the
Securities to any person in the United States, or any identifiable groups of
U.S. citizens abroad as such terms are used in Regulation S.
(i) At the time the buy order was originated, Seller and/or its
agents reasonably believe the Buyer was outside of the United States
and was not a U.S. person, based on the representations of Buyer.
(ii) Seller and/or its agents reasonably believe that the
transaction has not been pre-arranged with a buyer in the United
States, based on the representations of Buyer.
(iii) No offer to buy or sell the Securities was or will be
made by Seller to any person in the United States.
(iv) The sale of the Securities by Seller pursuant to this
Agreement will be made in accordance with the provisions and
requirements of Regulation S provided that the representations and
warranties of (i) Buyer in Section 2 hereof and (ii) the Broker
contained in the Agreement dated , 1997 between
Seller and Vengua Capital Markets, Ltd. (the "Broker Agreement") are
true and correct.
(v) The transactions contemplated by this Agreement (a) have
not been and will not be pre-arranged by Seller with a purchaser
located in the United States or a purchaser which is a U.S. Person,
and (b) are not and will not be part of a plan or scheme by Seller to
evade the registration provisions of the 1933 Act.
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(d) No Directed Selling Efforts. In regard to this transaction,
Seller has not conducted any "directed selling efforts" as that term is defined
in Rule 902 of Regulation S nor has Seller conducted any general solicitation
relating to the offer and sale of any of the Securities in the United States or
elsewhere based in part upon the representations and warranties of Broker in
the Broker Agreement.
(e) Concerning the Securities. The issuance, sale and delivery of
the Debentures have been duly authorized by all required corporate action on
the part of Seller, and when issued, sold and delivered in accordance with the
terms hereof and thereof for the consideration expressed herein and therein,
will be duly and validly issued, fully paid and non-assessable. The Common
Stock issuable upon conversion of the Debenture has been or will be duly and
validly reserved for issuance and, upon issuance in accordance with the terms of
the Debentures, shall be duly and validly issued, fully paid, and
non-assessable and will not subject the holders thereof, if such persons are
non-U.S. Persons, to personal liability by reason of being such holders. There
are no pre-emptive rights of any shareholder of Seller except as otherwise
disclosed in the reports filed by the Company with the Securities and Exchange
Commission.
(f) Subscription Agreement. This Agreement has been duly
authorized, validly executed and delivered on behalf of Seller and is a valid
and binding agreement in accordance with its terms, subject to general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors' rights generally.
(g) Non-contravention. The execution and delivery of this Agreement
and the consummation of the issuance of the Securities and the transactions
contemplated by this Agreement do not and will not conflict with or result in a
breach by Seller of any of the terms or provisions of, or constitute a default
under, the articles of incorporation or by-laws of Seller, or any material
indenture, mortgage, deed of trust, or other material agreement or instrument
to which Seller is a party or by which it or any of its material properties or
assets are bound, or any existing applicable law, rule or regulation of the
United States or any State thereof or any applicable decree, judgment or order
of any Federal or State court, Federal or State regulatory body, administrative
agency or other United States governmental body having jurisdiction over Seller
or any of its properties or assets, the violation of which would have a
material adverse effect on Seller.
(h) Approvals. Other than any additional listing application for
the issuance of the shares of Common Stock upon conversion of the Debentures,
Seller is not aware of any authorization, approval or consent of any
governmental body which is legally required for the issuance and sale of the
Debentures and the Common Stock issuable upon conversion thereof to persons who
are non-U.S. Persons, as contemplated by this Agreement, so long as the sale of
the Debenture and Common Stock are made in accordance with the rules and
regulations of Regulation S.
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4. Exemption; Reliance on Representations. Buyer understands that the
offer and sale of the Securities are not being registered under the 1933 Act.
Seller and Buyer are relying on the rules governing offers and sales made
outside the United States pursuant to Regulation S.
5. Transfer Agent Instructions.
(a) Debentures. Upon the conversion of the Debentures, the holder
thereof shall submit such Debenture with a notice of conversion to the Seller
and the Seller shall instruct Seller's transfer agent to issue one or more
Certificates representing that number of shares of Common Stock into which the
Debenture or Debentures are convertible in accordance with the provisions
regarding conversion set forth in the Debenture. The Seller or its designees
shall act as Debenture Registrar and shall maintain an appropriate ledger
containing the necessary information with respect to each Debenture.
(b) Common Stock to be Issued Without Restrictive Legend. Upon the
conversion of any Debenture by a person who is a non-U.S. Person, Seller shall
instruct Seller's transfer agent to issue Stock Certificates without
restrictive legend in the name of Buyer (being a non-U.S. Person) and in such
denominations to be specified at conversion representing the number of shares
of Common Stock issuable upon such conversion, as applicable. Seller warrants
that no instructions other than these instructions and instructions to impose a
"stop transfer" instruction with respect to the certificates until the end of
the Restricted Period have been given or will be given to the transfer agent
and that the Common Stock issuable upon conversion of the Debentures in
accordance with the terms thereof shall otherwise be freely transferable on the
books and records of Seller subject to compliance with requirements of
Regulation S. Nothing in this Section 5, however, shall affect in any way
Buyer's or such nominee's obligations and agreements to comply with all
applicable securities laws upon resale of the Securities.
6. Registration. If upon conversion of Debentures effected by the Buyer
pursuant to the terms of this Agreement the Company fails to issue certificates
for shares of Common Stock issuable upon such conversion (the "Underlying
Shares") to the Buyer bearing no restrictive legend for any reason other than
(i) the Company's reasonable good faith belief that the representations and
warranties made by the Buyer in this Agreement or the Notice of Conversion were
untrue when made, or are untrue at the time of question, (ii) failure by the
Buyer to comply with the rules of Regulation S, or (iii) if the restricted
period under Regulation S is extended, then the Company shall be required, at
the request of the Buyer and at the Company's expense, to effect the
registration of the Underlying Shares issuable upon conversion of the
Debentures under the Act and relevant Blue Sky laws as promptly as is
practicable on Form S-3. The Company and the Buyer shall cooperate in good
faith in connection with the furnishing of information required for such
registration and the taking of such other actions as may be legally or
commercially necessary in order to effect such registration. The Company shall
file a registration statement within 60 days of Buyer's demand therefor and
shall use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter. Such best efforts shall
include, but not be limited to, promptly responding to all comments received
from the staff of the Securities and Exchange Commission, providing Buyer's
counsel with a contemporaneous copy of all written
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communications from and to the staff of the Securities and Exchange Commission
with respect to such registration statement and promptly preparing and filing
amendments to such registration statement which are responsive to the comments
received from the staff of the Securities and Exchange Commission. Once
declared effective by the Securities and Exchange Commission, the Company shall
cause such registration statement to remain effective until the earlier of (i)
the sale by the Buyer of all Underlying Shares registered or (ii) 120 days
after the effective date of such registration statement. The foregoing shall
not in any way limit Buyer's rights in connection with the Common Stock
pursuant to Regulation S.
7. Delivery Instructions. The Debentures being purchased hereunder
shall be delivered to the Buyer at such time and place as shall be mutually
agreed by Seller and Buyer.
8. Conditions To Seller's Obligation To Sell. Seller's obligation to
sell the Debentures is conditioned upon:
(a) The receipt and acceptance by Buyer of this Agreement as
evidenced by execution of this Agreement by Buyer.
(b) Delivery into the Seller's account of good funds by Buyer as
payment in full of the purchase price of the Debentures.
9. Conditions To Buyer's Obligation To Purchase. Buyer's obligation to
purchase the Debentures is conditioned upon:
(a) The receipt and acceptance by Seller of this Agreement as
evidenced by execution of this Agreement by the duly authorized officer of
Seller.
(b) Delivery of the Debentures as described herein.
10. Offering Materials. All offering materials and documents used in
connection with offers and sales of the Securities prior to the expiration of
the Restricted Period referred to in Section 2(v) hereof shall include
statements to the effect that the Securities have not been registered under the
1933 Act or applicable state securities laws, and that neither Buyer, nor any
direct or indirect purchaser of the Securities from Buyer, may directly or
indirectly offer or sell the Securities in the United States or to U.S. Persons
(other than distributors) unless the Securities are registered under the 1933
Act and any applicable state securities laws, or any exemption from the
registration requirements of the 1933 Act or such state securities laws is
available. Such statements shall appear (1) on the cover of any prospectus or
offering circular used in connection with the offer or sale of the Securities,
(2) in the underwriting section of any prospectus or offering circular used in
connection with the offer or sale of the Securities, and (3) in any
advertisement made or issued by Seller, Buyer, any other distributor, any of
their respective affiliates, or any person acting on behalf of any of the
foregoing and in accordance with 902(h)(2) of Regulation S.
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11. No Shareholder Approval. Seller hereby agrees that from the Closing
Date until the issuance of Common Stock upon the conversion of the Debentures,
Seller will not take any action in respect of the Securities which would
require Seller to seek shareholder approval of the issuance of the Securities
unless such shareholder approval is required by law or regulatory body
(including but not limited to the NASDAQ Stock Market, Inc.) as a result of the
issuance of the Securities hereunder.
12. Miscellaneous.
(a) Except as specifically referenced herein, this Agreement
constitutes the entire contract between the parties, and neither party shall be
liable or bound to the other in any manner by any warranties, representations
or covenants except as specifically set forth herein. Any previous agreement
among the parties related to the transactions described herein is superseded
hereby. The terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
hereto. Nothing in this Agreement, express or implied, is intended to confer
upon any party, other than the parties hereto, and their respective successors
and assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement, except as expressly provided herein.
(b) Buyer is an independent contractor, and is not the agent of
Seller. Buyer is not authorized to bind Seller, or to make any representations
or warranties on behalf of Seller.
(c) Seller makes no representations or warranties with respect to
Seller, its finances, assets, business prospects or otherwise. Buyer will
advise each purchaser, if any, and potential purchaser of the Securities, of
the foregoing sentence, and that such purchaser is relying on its own
investigation with respect to all such matters.
(d) All representations and warranties contained in this Agreement
by Seller and Buyer shall survive the closing of the transactions contemplated
by this Agreement.
(e) This Agreement shall be construed in accordance with the laws
of New York (without regard to conflicts of law principles) and shall be
binding upon the successors and permitted assigns of each party hereto. This
Agreement may be executed in counterparts, and the facsimile transmission of an
executed counterpart to this Agreement shall be effective as an original.
(f) Buyer agrees to indemnify and hold Seller harmless from any and
all claims, damages and liabilities arising from Buyer's breach of its
representations and/or covenants set forth herein.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
Official Signatory of Seller:
Byron Preiss Multimedia Company, Inc.
By:
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Title:
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Official Signatory of Buyer:
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By:
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Title:
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Address of Buyer:
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FORM OF DEBENTURE
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES (AS DEFINED IN
REGULATION S UNDER THE ACT) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF
U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE ACT) EXCEPT
PURSUANT TO REGISTRATION UNDER THE ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND APPLICABLE STATE
SECURITIES LAWS.
No. _______ US $_________
BYRON PREISS MULTIMEDIA COMPANY, INC.
8.0% CONVERTIBLE DEBENTURE DUE JANUARY 31, 1999
THIS DEBENTURE is one of a duly authorized issue of Debentures of Byron
Preiss Multimedia Company, Inc., a corporation duly organized and existing
under the laws of New York (the "Company") designated as its 8.0% Convertible
Debenture Due January 31, 1999, in an aggregate principal amount not exceeding
Five Million Dollars (U.S. $5,000,000).
FOR VALUE RECEIVED, the Company promises to pay to ______________________
the registered holder hereof and its successors and assigns (the "Holder"), the
principal sum of __________________ Dollars (US $________) on January 31, 1999
(the "Maturity Date"), and to pay interest on the principal sum outstanding, at
the rate of 8% per annum due and payable quarterly in arrears for each quarter
ending March 31, June 30, September 30, and December 31, within 10 business
days of the end of such quarter, commencing with the quarterly period ending
March 31, 1997. Accrual of interest shall commence on the date hereof and
shall continue until payment in full of the outstanding principal sum has been
made or duly provided for or the date of conversion of the Debentures. The
interest so payable will be paid to the person in whose name this Debenture (or
one or more predecessor Debentures) is registered on the records of the Company
regarding registration and transfers of the Debentures (the "Debenture
Register"); provided, however, that the Company's obligation to a transferee of
this Debenture arises only if such transfer, sale or other disposition is made
in accordance with the terms and conditions of the Offshore Securities
Subscription Agreement dated as of __________________ between the Company and
________________________ (the "Subscription Agreement"). The principal of, and
interest on, this Debenture are payable in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts, at the address last appearing on the Debenture
Register of the Company as designated in writing by the Holder hereof from time
to time; provided, however, that the Company may, at its sole option, pay any
or all accrued interest hereunder in shares of the Company's Common Stock (as
herein defined), and in any such case, the shares of Common Stock shall be
valued on the basis of the 5-day average closing bid price as of the
determination date. The Company will pay the outstanding principal of and all
accrued and unpaid interest due upon this Debenture on the Maturity Date, less
any amounts required by law to be deducted or withheld, to the record Holder of
this Debenture as of the tenth (10th) day prior to
<PAGE>
the Maturity Date and addressed to such record Holder at the last address
appearing on the Debenture Register. The forwarding of such check shall
constitute a payment of outstanding principal and interest hereunder and shall
satisfy and discharge the liability for principal and interest on this
Debenture to the extent of the sum represented by such check plus any amounts so
deducted.
This Debenture is subject to the following additional provisions:
1. The Debentures are issuable in denominations of Fifty Thousand Dollars
(US$50,000) and integral multiples thereof. The Debentures are exchangeable
for an equal aggregate principal amount of Debentures of different authorized
denominations, as requested by the Holders surrendering the same but not less
than U.S. $50,000. No service charge will be made for such registration or
transfer or exchange.
2. The Company shall be entitled to withhold from all payments of
principal of, and interest on, this Debenture any amounts required to be
withheld under the applicable provisions of the United States income tax or
other applicable laws at the time of such payments.
3. This Debenture has been issued subject to investment representations
of the original purchaser hereof and may be transferred or exchanged in the
U.S. only in compliance with the Securities Act of 1933, as amended (the "Act")
and applicable state securities laws. Prior to due presentment for transfer of
this Debenture, the Company and any agent of the Company may treat the person
in whose name this Debenture is duly registered on the Company's Debenture
Register as the owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Debenture be overdue,
and neither the Company nor any such agent shall be affected or bound by notice
to the contrary. Any holder of this Debenture, electing to exercise the right
of conversion set forth in Section 4 hereof, in addition to the requirements
set forth in Section 4, is also required to give the Company (i) written
confirmation that it is not a U.S. Person or for the account or benefit of a
U.S. Person and the Debenture is not being converted on behalf of a U.S. Person
("Notice of Conversion") or (ii) an opinion of U.S. counsel, which counsel and
opinion shall be reasonably satisfactory to the Company, to the effect that the
Debenture and shares of common stock issuable upon conversion thereof have been
registered under the 1933 Act or are exempt from such registration. In the
event a Notice of Conversion or opinion of counsel is not provided the Holder
hereof will not be entitled to exercise the right to convert the Debentures
pursuant to Section 4(a) herein.
4. (a) The Holder of this Debenture is entitled, at its option, at any
time commencing 45 days after issue hereof to convert any or all of the
original principal amount of this Debenture into shares of common stock, $0.001
par value per share, of the Company (the "Common Stock"), at a conversion price
for each share of Common Stock equal to the lower of (a) 70% of the average
closing bid price of the Common Stock for the five (5) business days
immediately preceding the conversion date or (b) 75% of the average of the
closing bid price of the Common Stock for the five (5) business days
immediately preceding the date of Subscription by the Holder in each case as
reported by the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") (the "Conversion Price"). Such conversion shall be
effectuated by surrendering the Debentures to be converted to the Company with
the form of conversion notice (by facsimile copy) attached hereto as Exhibit A,
executed by the Holder of this Debenture evidencing such Holder's
2
<PAGE>
intention to convert this Debenture or a specified portion (as above provided)
hereof, and accompanied by proper assignment hereof in blank. Accrued but
unpaid interest shall be subject to conversion at the option of the Company.
No fractional shares or scrip representing fractions of shares will be issued
on conversion, but the number of shares issuable shall be rounded to the nearest
whole share, with the fraction paid in cash at the discretion of the Company.
The date on which notice of conversion is given shall be deemed to be the date
on which the Holder has delivered this Debenture, with the conversion notice
duly executed, to the Company. On or after 90 days of the issuance of
Debenture, the Company, at its option, can require Holder to convert any and
all of the principal amount of this Debenture and interest thereon not converted
in accordance with the provisions of this paragraph provided, however, that
such 90 day waiting period shall be waived in the event that Holder demands
this Debenture to be immediately due and payable upon an "Event of Default"
described in Section 8 below.
(b) Notwithstanding the provisions of paragraph 4(a) hereof, the Company
is entitled, at its option, to redeem part or all of the Debentures being
converted by paying to the holder the product of (i) the average market price
for the 5 consecutive trading days as reported by NASDAQ prior to the Notice of
Conversion, and (ii) the higher number of shares of Common Stock that would be
issuable for such Debentures pursuant to the calculations in paragraph 4(a).
Such payment shall include accrued interest to such date, and shall be less any
amounts required by law to be deducted or withheld. Such payment shall be made
by delivering immediately available funds in United States Dollars by wire
transfer to the Holder, or if no wiring instructions have been provided to the
Company, by cashier's or certified check to the last address of Holder
appearing on the Debenture Register, within 5 days of the date of the Company's
giving notice to the holder of the Company's intention to redeem all or part of
the Debentures. The wiring of such funds or the forwarding of such check shall
constitute a payment of principal and interest hereunder and shall
automatically satisfy and discharge the liability for principal and interest on
this Debenture to the extent of the sum represented by such wire or check plus
any amount so deducted. Company shall notify Holder of its intent to redeem
within 2 days of receipt of the Notice of Conversion.
5. No provision of this Debenture, other than the provision for forced
conversion, shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and interest on, this
Debenture at the time, place, and rate, and in the coin currency, herein
prescribed.
6. The Company hereby expressly waives demand and presentment for
payment, notice of nonpayment, protest, notice of protest, notice of dishonor,
notice of acceleration or intent to accelerate, bringing of suit and diligence
in taking any action to collect amounts called for hereunder except as
otherwise set forth herein and shall be directly and primarily liable for the
payment of all sums owing and to be owing hereon, regardless of and without any
notice, diligence, act or omission as or with respect to the collection of any
amount called for hereunder.
7. The Company agrees to pay all costs and expenses, including
reasonable attorneys' fees, which may be incurred by the Holder in collecting
any amount due under this Debenture.
8. If one or more of the following described "Events of Default" shall
occur:
3
<PAGE>
(a) The Company shall default in the payment of principal or
interest on this Debenture; or
(b) Any of the material representations or warranties made by the
Company herein, in the Subscription Agreement, or in any certificate or
financial or other written statements heretofore or hereafter furnished
directly by the Company in connection with the execution and delivery of this
Debenture or the Subscription Agreement shall be false or misleading in any
material respect at the time made; or
(c) The Company shall fail to perform or observe, in any material
respect, any other material covenant, term, provision, condition, agreement or
obligation of the Company under this Debenture and such failure shall continue
uncured for a period of ten (10) business days after notice from the Holder of
such failure including, but not limited to, failure to issue the Common Stock
upon conversion of this Debenture pursuant to paragraph 4 hereof; or
(d) The Company shall (1) become insolvent; (2) admit in writing
its inability to pay its debts generally as they mature; (3) make an assignment
for the benefit of creditors or commence proceedings for its dissolution; or
(4) apply for or consent to the appointment of a trustee, liquidator or
receiver for all of its or for a substantial part of its property or business;
or
(e) A trustee, liquidator or receiver shall be appointed for the
Company or for a substantial part of its property or business without its
consent and shall not be discharged within sixty (60) days after such
appointment; or
(f) Any governmental agency or any court of competent jurisdiction
at the instance of any governmental agency shall assume custody or control of
the whole or any substantial portion of the properties or assets of the Company
and shall not be dismissed within sixty (60) days thereafter; or
(g) Any money judgment, writ or warrant of attachment, or similar
process in excess of Seven Hundred Fifty Thousand ($750,000) Dollars in the
aggregate shall be entered or filed against the Company or any of its
properties or other assets and shall remain unpaid, unvacated, unbonded or
unstayed for a period of thirty (30) days or in any event later than five (5)
days prior to the date of any proposed sale thereunder; or
(h) Bankruptcy, reorganization, insolvency or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against the Company and, if
instituted against the Company, shall not be dismissed within sixty (60) days
after such instruction of the Company shall by any action or answer approve of,
consent to, or acquiesce in any such proceedings or admit the material
allegations of, or default in answering a petition filed in any such proceeding;
or
4
<PAGE>
(i) The Company shall have its Common Stock delisted from all
exchanges or over-the-counter market.
Then, or at any time thereafter, and in each and every such case, as long as
such Event of Default is continuing for ten (10) business days after written
notice of such Event of Default unless such Event of Default shall have been
waived in writing by the Holder (which waiver shall not be deemed to be a
waiver of any subsequent default) at the option of the Holder and in the
Holder's sole discretion, the Holder may consider this Debenture immediately due
and payable, without presentment, demand, protest or notice of any kinds, all
of which are hereby expressly waived, anything herein or in any note or other
instruments contained to the contrary notwithstanding, and the Holder may
immediately, and without expiration of any period of grace other than as
contained in this Section, enforce any and all of the Holder's rights and
remedies provided herein or any other rights or remedies afforded by law except
that Company shall maintain at all times the absolute right to force conversion
of the Debentures pursuant to Section 4 hereof.
9. This Debenture represents a general unsecured obligation of the
Company. No recourse shall be had for the payment of the principal of, or the
interest on, this Debenture, or for any claim based hereon, or otherwise in
respect hereof, against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
10. The Holder of this Debenture, by acceptance hereof, agrees that this
Debenture is being acquired for investment and that such Holder will not offer,
sell or otherwise dispose of this Debenture or the Shares of Common Stock
issuable upon exercise thereof except under circumstances which will not result
in a violation of the Act or any applicable state Blue Sky law or similar laws
relating to the sale of securities.
11. In case any provision of this Debenture is held by a court of
competent jurisdiction to be excessive in scope or otherwise invalid or
unenforceable, such provision shall be adjusted rather than voided, if
possible, so that it is enforceable to the maximum extent possible, and the
validity and enforceability of the remaining provisions of this Debenture will
not in any way be affected or impaired thereby.
12. This Debenture and the agreements referred to in this Debenture
constitute the full and entire understanding and agreement between the Company
and the Holder with respect to the subject hereof. Neither this Debenture nor
any term hereof may be amended, waived, discharged or terminated other than by
a written instrument signed by the Company and the Holder.
13. This Debenture shall be governed by and construed in accordance with
the laws of New York, without giving effect to its conflicts of law rules.
14. As set forth herein, the Company shall use all reasonable efforts to
issue and deliver, within ten business days after the Holder has fulfilled all
conditions and submitted all necessary documents duly executed and in proper
form required for conversion (the "Deadline"), to the Holder
5
<PAGE>
or any party receiving a Debenture by transfer from the Holder (together, a
"Holder"), at the address of the Holder on the books of the Company, a
certificate or certificates for the number of Shares of Common Stock to which
the Holder shall be entitled. The Company understands that a delay in the
issuance of the Shares of Common Stock beyond the Deadline could result in
economic loss to the Holder. As compensation to the Holder for such loss, the
Company agrees to pay liquidated damages to the Holder for late issuance of
Shares upon conversion in accordance with the following schedule (where "No.
Business Days Late" is defined as the number of business days beyond ten (10)
business days from the date of receipt by the Company of a Notice of Conversion
and the transfer agent of all necessary documentation duly executed and in
proper form required for conversion, including the original Debenture to be
converted, all in accordance with the Debenture, Subscription Agreement and the
requirements of the transfer agent unless the Company has used all reasonable
efforts to issue and deliver said certificates):
Liquidated Damages
No. Business Days LatePer $100,000 of Debenture
- ---------------------- -------------------------
1$100
2$200
3$300
4$400
5$500
6$600
7$700
8$800
9$900
10$1,000
over 10$1,000 + $100 each
Business Day Late beyond 10 days
but in no event more than $3,000.
; provided, however, that the Company shall not be required to pay any
liquidated damages as hereinabove set forth in the event that the Company has
timely provided to the transfer agent of the Company the documentation
necessary to issue to the Holder in question the stock certificate representing
the shares of Common Stock issuable upon conversion of the Debenture by such
Holder.
The Company shall pay the Holder any liquidated damages incurred under
this Section by check upon the earlier to occur of (i) issuance of the Shares
to the Holder or (ii) each monthly anniversary of the receipt of the Company of
such Holder's Notice of Conversion. Nothing herein shall limit the Holder's
right to pursue actual damages for the Company's failure to issue and deliver
shares of Common Stock to the Subscriber in accordance with the terms of the
Debenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by an officer thereunto duly authorized.
Dated:
-------------------------
6
<PAGE>
BYRON PREISS MULTIMEDIA COMPANY, INC.
By:
------------------------------------
Title:
---------------------------------
7
<PAGE>
EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Holder in order to Convert the Debenture)
The undersigned hereby irrevocably elects to convert $______________ of
the above Debenture No. ___ into Shares of Common Stock of Byron Preiss
Multimedia Company, Inc. (the "Company") according to the conditions set forth
in such Debenture and Offshore Securities Subscription Agreement, as of the
date written below.
The undersigned represents that it is not a U.S. Person as defined in
Regulation S promulgated under the Securities Act of 1933, as amended, and is
not converting the Debenture on behalf of any U.S. Person or for the account or
benefit of a U.S. Person and the representations contained in the Subscription
Agreement are true and correct on the date hereof as though made on and as of
the date hereof.
Date of Conversion__________________________________________________________
Applicable Conversion Price_________________________________________________
Signature___________________________________________________________________
[Name]
Address:____________________________________________________________________
____________________________________________________________________
8
<PAGE>
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER (THE "1933 ACT"), AND MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES (AS DEFINED IN REGULATION S OF THE 1993 ACT) OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S.PERSONS (AS DEFINED IN REGULATION S OF THE 1993 ACT)
EXCEPT AS PURSUANT TO REGISTRATION UNDER OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT.
Warrant to Purchase 25,000 Shares
WARRANT
to Purchase Common Stock of
BYRON PREISS MULTIMEDIA COMPANY, INC.
THIS CERTIFIES THAT, for value received, ___________________
_______________ ("Holder") is entitled to purchase from BYRON PREISS MULTIMEDIA
COMPANY, INC., a corporation organized and existing under the laws of the State
of New York (hereinafter called the "Company"), in whole or in part, at a
purchase price per share equal to the Warrant Purchase Price (as defined herein)
from time to time in effect, at any time from and after February 1, 1998 to and
including January 31, 1999 (the "Final Exercise Date"), 25,000 shares of the
Company's Common Stock, par value $.001 per share, subject, however, to the
provisions and upon the terms and conditions hereinafter set forth.
Certain terms used in this Warrant are defined in Section 5.
The number of shares of Common Stock purchasable hereunder, and the
Warrant Purchase Price payable therefor, are subject to adjustment as
hereinafter set forth.
This Warrant is exercisable at any time after February 1, 1998 to and
including January 31, 1999.
1. (a) Exercise of Warrant. The rights represented by this Warrant may
be exercised by the holder hereof, in whole or in part, by delivering to the
office of the Company at 24 West 25th Street - 10th Floor, New York, New York
10010 (or such other office or agency of the Company as it may designate by
notice in writing to the holder hereof),
<PAGE>
(i) this Warrant, together with a properly completed
Subscription Form in the form attached hereto, and
(ii) a certified check or bank draft in the amount of the
aggregate Warrant Purchase Price for each share of Common Stock being
purchased.
The Company agrees that the shares so purchased shall be deemed to be issued to
the Holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been delivered to the Company and payment
made for such shares as aforesaid. Certificates for the shares so purchased
shall be delivered to the Holder hereof within a reasonable time, not exceeding
ten Business Days (to the extent it can legally do so), after the rights
represented by this Warrant shall have been so exercised, and, unless this
Warrant has expired, a new Warrant representing the number of shares of Common
Stock, if any, with respect to which this Warrant shall not then have been
exercised, in all other respects identical with this Warrant, shall also be
issued and delivered to the Holder hereof within such time, or, at the request
of such Holder, appropriate notation may be made on this Warrant and the same
returned to such holder.
(b) Transfer Restriction Legend. Each certificate for Warrant Shares
initially issued upon exercise of this Warrant, unless at the time of exercise
such Warrant Shares are registered under the Securities Act, shall bear a legend
in substantially the same form as the legend set forth on the first page of this
Warrant and such other legend(s) as may be required to comply with applicable
state securities laws.
Any certificate issued at any time in exchange or substitution
for any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution under a registration statement of the
securities represented thereby) shall also bear such legend unless in the
opinion of counsel reasonably satisfactory to the Company the securities
represented thereby need no longer be subject to the restrictions contained in
this Warrant. The provisions of paragraph 2 shall be binding upon all subsequent
holders of certificates bearing the above legend.
2. Warrants and Warrant Shares Not Registered. The Holder, by
acceptance thereof, represents and acknowledges that this Warrant and the
Warrant Shares which may be purchased upon exercise of this Warrant are not
being registered under the Securities Act and are being offered and sold to it
in reliance on specific exemptions from the registration requirements of Federal
and State securities laws of the Untied States, and that the Company is relying
upon the truth and accuracy of the
<PAGE>
representations, warranties, agreements, acknowledgments and understandings of
Holder set forth in the Offshore Securities Agreement, dated as of the date
hereof, between the Company and Holder, in order to determine the applicability
of such exemptions and the suitability of Holder and any purchaser from Holder
to acquire the Securities.
3. Special Agreements of the Company. The Company covenants and agrees
that:
(a) Character of Warrant Shares. All shares which may be issued upon
the exercise of the rights represented by this Warrant, upon issuance, will be
duly authorized, validly issued, fully paid and nonassessable.
(b) Will Reserve Shares. During the period within which the rights
represented by this Warrant may be exercised, the Company will have at all times
authorized, and reserved for the purpose of issue or transfer upon exercise of
the rights evidenced by this Warrant, a sufficient number of shares of its
Common Stock of the appropriate class to provide for the exercise of the rights
represented by this Warrant.
4. Adjustments.
(a) Adjustment of the Warrant Purchase Price for Stock Splits, Reverse
Stock Splits, and Stock Dividends. In the event that the outstanding shares of
Common Stock shall be subdivided (split) or combined (reverse split) by
reclassification or otherwise, or in the event of any dividend payable on the
Common Stock in shares of Common Stock, the applicable Warrant Purchase Price
and the number of Warrant Shares available for purchase in effect immediately
prior to such subdivision, combination or dividend shall be proportionately
adjusted.
(b) Adjustment for Capital Reorganizations. If at any time there shall
be a capital reorganization of the Company's Common Stock, or a merger or
consolidation of the Company with or into another corporation, or the sale of
the Company's properties and assets as, or substantially as, an entirety to any
other person or entity, then, as part of such reorganization, merger,
consolidation or sale, lawful provision shall be made so that Holder shall
thereafter be entitled to receive, on exercise of this Warrant during the period
specified in this Warrant and on payment of the Warrant Purchase Price then in
effect, the number of shares of stock or other securities or property of the
Company, or of the successor corporation resulting from such merger or
consolidation, to which a holder of the Common Stock deliverable on exercise of
this Warrant would have been entitled on such capital reorganization, merger or
consolidation, or sale
<PAGE>
if this Warrant had been exercised immediately before that capital
reorganization, merger, consolidation or sale. In any such case, appropriate
adjustment, as determined in good faith by the Board of Directors of the
Company, shall be made in the application of the provisions of this Warrant with
respect to the rights and interests of the Warrant Holder after the
reorganization, merger, consolidation or sale to the end that provisions of this
Warrant (including adjustment of the Warrant Purchase Price then in effect and
the number of Warrant Shares purchasable on exercise of this Warrant, but
without any change in the aggregate Warrant Purchase Price) shall be applicable
after that event, as near as is reasonably possible, in relation to any shares
or other securities or property deliverable after that event upon exercise of
this Warrant.
(c) Adjustment For Dissolution In the case of a voluntary or
involuntary dissolution, liquidation or winding up of the Company or 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, Holder shall have the right thereafter (after the commencement of and
until the expiration of the right of exercise of such Warrant) to receive upon
the exercise thereof, for the same aggregate Warrant Purchase Price payable
hereunder immediately prior to such event, the kind and amount of shares of
stock or other securities or property receivable upon such voluntary or
involuntary dissolution, liquidation or winding up of the Company or the
dissolution following any sale or other transfer, by Holder of the number of
shares of Common Stock of the Company obtainable upon exercise of such Warrant
immediately prior to such event.
(d) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 4, the Company, at its
expense, shall compute such adjustment or readjustment in accordance with the
terms hereof and furnish to the Warrant Holder a certificate setting forth such
adjustment or readjustment and showing in reasonable detail the facts upon which
such adjustment or readjustment is based. The Company shall, upon the written
request of Holder, at any time, furnish or cause to be furnished to Holder a
like certificate setting forth (i) such adjustments and readjustments; (ii) the
Warrant Purchase Price in effect at the time; and (iii) the number of Warrant
Shares that at the time would be received upon the exercise of this Warrant.
(e) Notice of Record Date. In the event of any taking by the Company of
a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than ordinary cash
<PAGE>
dividends) or other distribution, the Company shall use its reasonable efforts
to mail to the Warrant Holder, at least ten (10) days prior to the date
specified for the taking of a record, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend or distribution.
5. Definitions. The terms defined in this paragraph 5, whenever used in
this Warrant, shall, unless the context otherwise requires, have the respective
meanings hereinafter specified.
"Commission" shall mean the Securities and Exchange
Commission, or any other Federal agency then administering the
Securities Act.
"Common Stock" shall mean and include the Company's
Common Stock, $.001 par value per share.
"Company" shall mean Byron Preiss Multimedia Company,
Inc., a New York corporation, and also includes any successor
thereto with respect to the obligations hereunder, by merger,
consolidation or otherwise.
"Outstanding" when used with reference to Common
Stock shall mean at any date as of which the number of shares
thereof is to be determined, all issued shares of Common Stock
(including, but without duplication, shares deemed issued
pursuant to paragraph 4), except shares then owned or held by
or for the account of the Company.
"Securities Act" shall mean the Securities Act of
1933, or any similar Federal statute, and the rules and
regulations of the Commission, or any other Federal agency
then administering such Securities Act, thereunder, all as the
same shall be in effect at the time.
"Warrant Purchase Price" shall mean the purchase
price per share of Common Stock payable upon exercise of this
Warrant, which shall be the purchase price of Two Dollars and
Forty cents (US $2.40) per share, as adjusted from time to
time pursuant to the other provisions hereof providing for
adjustments to the Warrant Purchase Price.
"Warrant" shall mean this Warrant issued by the
Company evidencing the right to purchase an aggregate of
25,000 shares of Common Stock, and all Warrants
<PAGE>
issued in exchange, transfer or replacement of any
thereof.
"Warrant Shares" shall mean the shares of Common
Stock purchased or purchasable by the holders of Warrants upon
the exercise thereof pursuant to paragraph 1.
6. Exchange, Replacement and Assignability. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, of a bond
of indemnity or other security satisfactory to the Company, or, in the case of
any such mutilation, upon surrender or cancellation of this Warrant, the Company
will issue to Holder a new Warrant of like tenor and date, in lieu of this
Warrant, or such new Warrants, representing the right to purchase the number of
shares which may be purchased hereunder.
7. Transfer Books; No Rights as Stockholder; Survival of Rights. The
Company will at no time close its transfer books against the transfer of this
Warrant or any Warrant Shares in any manner which interferes with the timely
exercise of this Warrant. This Warrant shall not entitle Holder to any voting
rights or any rights as a stockholder of the Company. The rights and obligations
of the Company, of Holder and of any holder of Warrant Shares issued upon
exercise of this Warrant pursuant to the terms of this Warrant shall survive the
exercise of this Warrant.
8. Governing Law; Amendments and Waivers; Headings. The validity,
interpretation and performance of this Warrant and each of its terms and
provisions shall be governed by the laws of the State of New York. No provision
of this Warrant may be changed, waived, discharged or terminated except by an
instrument in writing signed by the party against which enforcement of the same
is sought. The headings in this Warrant are for purposes of reference only and
shall not affect the meaning or construction of any of the provisions hereof.
9. Notices. Any notice or other document required or permitted to be
given or delivered to Holder shall be delivered at, or sent by certified or
registered mail to Holder at, the address shown on such holder's Warrant or to
such other address as shall have been furnished to the Company in writing by
Holder. Any notice or other document required or permitted to be given or
delivered to the Company shall be delivered at, or sent by certified or
registered mail to the principal office of the Company at 24 West 25th Street -
5th Floor, New York, New York
<PAGE>
10010, or such other address or addresses as shall have been furnished to Holder
by the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer, and to be dated as of , 1997.
BYRON PREISS MULTIMEDIA
COMPANY, INC.
By:
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Name:
Title:
<PAGE>
FULL SUBSCRIPTION FORM
To Be Executed by the Registered Holder in Order
to Exercise in Full the Within Warrant
The undersigned hereby exercises the right to purchase the _______
shares of ___ Common Stock covered by the within Warrant at the date of this
subscription and herewith makes payment of the sum of $ ________ representing
the Warrant Purchase Price of $ __________ per share in effect at this date.
Certificates for such shares shall be issued in the name of and delivered to the
undersigned, unless otherwise specified by written instructions, signed by the
undersigned and accompanying this subscription.
Dated: _______________________, 19___.
Signature
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Address
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<PAGE>
PARTIAL SUBSCRIPTION FORM
To Be Executed by The Registered Holder in Order
to Exercise in Part Only the Within Warrant
The undersigned hereby exercises the right to purchase ____ shares of
the total of _______ shares of ____ Common Stock covered by the within Warrant
at the date of this subscription and herewith makes payment of the sum of
$___________ representing the Warrant Purchase Price of $_________________ per
share in effect at this date. Certificates for such shares and a new Warrant of
like tenor and date for the balance of the shares not subscribed for shall be
issued in the name of and delivered to the undersigned, unless otherwise
specified by written instructions, signed by the undersigned and accompanying
this subscription.
(The following paragraph need be completed only if the Warrant Purchase
Price and number of shares of Common Stock specified in the within Warrant have
been adjusted pursuant to paragraph 4 of the Warrant.)
The shares hereby subscribed for constitute __________ shares of Common
Stock (to the nearest whole share) resulting from adjustment of _______ shares
of the total of ________ shares of Common Stock covered by the within Warrant,
as said shares were constituted at the date of the Warrant, leaving a balance of
________ shares of Common Stock, as constituted at the date of the Warrant, to
be covered by the new Warrant.
Dated: ____________________, 19____.
Signature
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Address
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