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EXHIBIT 4.2
THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OR ANY STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED UNTIL
(i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
REGISTRATION OR QUALIFICATION FOR SALE UNDER APPROPRIATE STATE
SECURITIES LAWS SHALL BECOME EFFECTIVE WITH RESPECT THERETO, OR
(ii) RECEIPT OF AN OPINION OF COUNSEL IN FORM AND FROM COUNSEL
ACCEPTABLE TO THE ISSUER TO THE EFFECT THAT PROPOSED TRANSFER DOES
NOT VIOLATE ANY PROVISIONS OF STATE OR FEDERAL LAW.
MOVIE GALLERY,
INC.
WARRANTS TO PURCHASE COMMON
STOCK
VOID AFTER May 26,
2015
This Warrant Certificate
(“ Warrant Certificate ”) certifies that Sopris
Partners, Series A of Sopris Capital Partners, LP or its assigns
(the “ Holder ”) is the holder of 86,250
outstanding Warrants (“ Warrants ”) of Movie
Gallery, Inc., a Delaware corporation (the “ Company
”), to purchase shares (the “ Warrant Shares
”) of common stock, par value $0.01 per share (the “
Common Stock ”) of the Company, as shall from time to
time be reduced or increased in accordance with the terms of this
Warrant Certificate. The Warrants expire on May 26, 2015 (such
date, the “ Expiration Date ”), and entitles the
Holder to purchase from the Company, subject to and upon compliance
with the provisions hereof, for each Warrant being exercised, one
fully paid and non-assessable Warrant Share at the exercise price
(the “ Exercise Price ”) multiplied by the
number of Warrant Shares in respect of which Warrants are being
exercised (the “ Exercise Amount ”), payable to
the Company either by certified or official bank check payable to
the order of the Company (or, if agreed to in the sole and absolute
discretion of the Company, by wire transfer in immediately
available funds to an account with the Company prior to exercise),
no later than 5:00 p.m. New York City time, on the settlement date,
which settlement date is three business days after a Warrant
Exercise Notice is delivered (the “ Settlement Date
”). The initial Exercise Price shall be $10.00.
Section 1. Method of
Exercise .
(a) Warrants may be exercised
to purchase Warrant Shares from the Company from the date of
original issuance of this Warrant Certificate through 5:00 p.m. New
York City time on the Expiration Date, at the Exercise Price set
forth on the face hereof, subject to adjustment in accordance with
the terms of this Warrant Certificate. Subject to the terms and
conditions set forth herein, the Holder may exercise the Warrants
by:
(i) providing written notice
of such election (“ Warrant Exercise Notice ”)
to exercise the Warrant to the Company no later than 5:00 p.m. New
York City time, on the Expiration Date, which Warrant Exercise
Notice shall substantially be in the form of an election to
purchase Warrant Shares set forth herein, properly completed and
executed by the Holder;
(ii) delivering no later than
5:00 p.m. New York City time, on the business day immediately prior
to the Settlement Date, this Warrant Certificate evidencing such
Warrants to the Company; and
(iii) paying the applicable
Exercise Amount, together with any applicable taxes and
governmental charges.
(b) The Holder shall have the
right, in lieu of paying the Exercise Amount in cash, to instruct
the Company to reduce the number of shares of Common Stock issued
purchased pursuant to the exercise of the Warrants in accordance
with the following formula:
where:
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| N = |
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the
number of shares of Common Stock to be subtracted from the
remaining number of shares of Common Stock issuable upon exercise
of the Warrants; |
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| P = |
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the
Exercise Amount which would otherwise be payable in cash for the
shares of Common Stock for which the Warrants are being exercised;
and |
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| M = |
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the
Market Price of a share of Common Stock determined as of the date
of such exercise. |
The term “ Market Price
” means, as of any date of determination but calculated as
the average over the preceding 20 days on which the Common Stock
has traded, (i) the closing price per share of Common Stock on
such date published in The Wall Street Journal or, if no such
closing price on such date is published in The Wall Street Journal,
the average of the closing bid and asked prices on such date, as
officially reported on the principal securities exchange on which
the Common Stock is then listed or admitted to trading; or
(ii) if the Common Stock is not then listed or admitted to
trading on any securities exchange but is designated as a national
market system security by the National Association of Securities
Dealers, Inc., the last trading price of the Common Stock on such
date; or (iii) if there shall have been no trading on such
date or if the Common Stock are not so designated, the average of
the reported closing bid and asked prices of the Common Stock on
such date as shown by the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotations System
and reported by any member firm of the New York Stock Exchange
selected by the Company; or (iv) if none of (i), (ii) or
(iii) is applicable, the “Market Price” shall be
the fair value thereof, determined in good faith by the
Company.
(c) If less than all of the
Warrants evidenced by this Warrant Certificate are exercised at any
time prior to the Expiration Date, this Warrant Certificate shall
be endorsed to evidence the number of Warrants previously evidenced
by this Warrant Certificate not so exercised.
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Section 2. Transfer
of Warrant Certificates . This Warrant Certificate may be
transferred or exchanged at the option of the Holder, when
surrendered to the Company during normal business hours for another
Warrant Certificate or Warrant Certificates of like tenor and
representing in the aggregate a like number of Warrants. When this
Warrant Certificate is presented to the Company with a
request:
(i) to register the transfer
of this Warrant Certificate; or
(ii) to exchange this Warrant
Certificate for another Warrant Certificate or Warrant Certificates
of like tenor and representing in the aggregate a like number of
Warrants,
the Company shall register the transfer
or make the exchange as requested; provided , however
, that this Warrant Certificate when presented or surrendered for
registration of transfer or exchange shall be duly endorsed or
accompanied by a written instruction of transfer in form reasonably
satisfactory to the Company, duly executed by the Holder or the
duly appointed legal representative thereof or by his attorney,
duly authorized in writing, and bearing an original signature
guarantee from a guarantor who participates in a signature
guarantee program approved by The Securities Transfer
Association.
Section 3. Payment of
Taxes . No service charge shall be made to any Holder for any
exercise, exchange or transfer of this Warrant Certificate, and the
Company will pay all documentary stamp taxes attributable to the
initial issuance of Warrant Shares upon the exercise of Warrants;
provided , however , that the Company shall not be
required to pay any tax or taxes which may be payable in respect of
any transfer involved in the issue of any Warrant Certificates or
any certificates for Warrant Shares in a name other than that of
the registered holder of this Warrant Certificate surrendered upon
the exercise of a Warrant, and the Company shall not be required to
issue or deliver such Warrant Certificates or the certificates
representing the Warrant Shares 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.
Section 4. Mutilated
or Missing Warrant Certificates . On receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant Certificate and, in the
case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and substance to the
Company or, in the case of mutilation, on surrender and
cancellation of this Warrant Certificate, the Company at its
expense shall execute and deliver, in lieu of this Warrant
Certificate, a new warrant certificate of like tenor and
amount.
Section 5.
Reservation of Shares of Common Stock . The Company will at
all times reserve and keep available, free from preemptive rights,
out of the aggregate of its authorized but unissued shares of
Common Stock, for the purpose of enabling it to satisfy any
obligation to issue shares of Common Stock upon exercise of
Warrants, the maximum number of shares of Common Stock that may
then be deliverable upon the exercise of all outstanding Warrants.
The
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Company covenants that all shares of
Common Stock that may be issued upon exercise of Warrants will be,
upon payment of the aggregate Exercise Price and issuance thereof
(in the case of an exercise), fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and
security interests with respect to the issue thereof (other than
any liens, charges and security interests created by the Holder or
the person to which the shares of Common Stock are to be
issued).
Section 6. Adjustment
of Exercise Price and Number of Shares of Common Stock Issuable
. The Exercise Price and the number of shares of Common Stock
issuable upon the exercise of each Warrant are subject to
adjustment from time to time upon the occurrence of the events
enumerated in this Section 6, without duplication.
(a) Adjustment for Change
in Capital Stock . If on or after the date of this Warrant
Certificate and prior to the Expiration Date, the
Company:
(1) pays a dividend in shares
of Common Stock or makes a distribution on its Common Stock in
shares of Common Stock;
(2) subdivides its
outstanding shares of Common Stock into a greater number of shares
(other than upon a reclassification to which clause (5) of
this Section 6(a) or Section 6(j ) hereof
applies);
(3) combines its outstanding
shares of Common Stock into a smaller number of shares (other than
upon a reclassification to which clause (5) of this
Section 6(a) or Section 6(j ) hereof
applies);
(4) makes a distribution on
its Common Stock in shares of its capital stock other than Common
Stock; or
(5) issues by
reclassification of its Common Stock any shares of its capital
stock (including any such reclassification in connection with a
consolidation or merger of the Company in which the Company is the
surviving entity but excluding any reclassification in which
property other than shares of capital stock is issued (in which
event Section 6(j) hereof shall apply)),
then the number of shares of Common
Stock or other shares of capital stock of the Company receivable
upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the Holder shall be entitled upon exercise to
receive the kind and number of shares of Common Stock or other
shares of capital stock of the Company that the Holder would have
been entitled to receive upon the happening of any of the events
described above, had such Warrant been exercised immediately prior
to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective
date of such event retroactive to the record date, if any, for such
event.
(b) Adjustment of Exercise
Price . Whenever the number of shares of Common Stock or other
shares of capital stock of the Company receivable upon the exercise
of any Warrant is otherwise required to be adjusted as provided in
Section 6(a) or Section 6(j)
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hereof, the Exercise Price payable per
share of Common Stock upon exercise of such Warrant shall be
adjusted by multiplying such Exercise Price immediately prior to
such adjustment by a fraction, of which the numerator shall be the
number of shares of Common Stock receivable upon the exercise of
such Warrant immediately prior to such adjustment, and of which the
denominator shall be the number of shares of Common Stock (or,
where clause (4) or (5) of Section 6(a)
hereof applies and shares of capital stock (other than solely
Common Stock) become so receivable, the number of shares of Common
Stock equivalent to such shares of capital stock based on the
relative fair market values thereof (as determined in good faith by
the Board of Directors of the Company (the “ Board
”)) so receivable immediately thereafter.
If after an adjustment the
Holder upon exercise thereof may receive shares of two or more
classes or series of capital stock of the Company, the Company, in
good faith, shall determine as the adjusted Exercise Price for each
share of capital stock (other than Common Stock) so receivable an
amount equal to the Exercise Price per share of Common Stock as
adjusted pursuant to the preceding paragraph, multiplied by a
fractio
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