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MOVIE GALLERY, INC. WARRANTS TO PURCHASE COMMON STOCK

Warrant Agreement

MOVIE GALLERY, INC. 

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MOVIE GALLERY INC

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Title: MOVIE GALLERY, INC. WARRANTS TO PURCHASE COMMON STOCK
Date: 5/28/2008
Industry: Recreational Activities     Sector: Services

MOVIE GALLERY, INC. 

WARRANTS TO PURCHASE COMMON STOCK, Parties: movie gallery inc
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Exhibit 4.3

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 [              ] or its assigns (the “ Holder ”) is the holder of [              ] 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 $0.01.

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:

 

      P  
N  =   ----------  
      M  

where:

 

N

   =    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;

P

   =    the Exercise Amount which would otherwise be payable in cash for the shares of Common Stock for which the Warrants are being exercised; and

M

   =    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

 

-3-

 


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 fraction the denominator of which is the fair market v


 
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