0001021408-01-504145.txt : 20011018
0001021408-01-504145.hdr.sgml : 20011018
ACCESSION NUMBER: 0001021408-01-504145
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 4
FILED AS OF DATE: 20010730
GROUP MEMBERS: PETER NISSELSON
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: STAR STRUCK LTD
CENTRAL INDEX KEY: 0000771504
STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-ELECTRICAL APPARATUS & EQUIPMENT, WIRING SUPPLIES [5063]
IRS NUMBER: 361805030
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-12735
FILM NUMBER: 1692422
BUSINESS ADDRESS:
STREET 1: 8 F J CLARKE CIRCLE
CITY: BETHEL
STATE: CT
ZIP: 06801
BUSINESS PHONE: 2037784925
MAIL ADDRESS:
STREET 1: 1865 PALMER AVENUE
CITY: LARCHMONT
STATE: NY
ZIP: 10538
FORMER COMPANY:
FORMER CONFORMED NAME: SBM INDUSTRIES INC
DATE OF NAME CHANGE: 19930510
FORMER COMPANY:
FORMER CONFORMED NAME: SPEED O PRINT BUSINESS MACHINES CORP /DE/
DATE OF NAME CHANGE: 19920703
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: STAR STRUCK LTD
CENTRAL INDEX KEY: 0000771504
STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-ELECTRICAL APPARATUS & EQUIPMENT, WIRING SUPPLIES [5063]
IRS NUMBER: 361805030
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: 8 F J CLARKE CIRCLE
CITY: BETHEL
STATE: CT
ZIP: 06801
BUSINESS PHONE: 2037784925
MAIL ADDRESS:
STREET 1: 1865 PALMER AVENUE
CITY: LARCHMONT
STATE: NY
ZIP: 10538
FORMER COMPANY:
FORMER CONFORMED NAME: SBM INDUSTRIES INC
DATE OF NAME CHANGE: 19930510
FORMER COMPANY:
FORMER CONFORMED NAME: SPEED O PRINT BUSINESS MACHINES CORP /DE/
DATE OF NAME CHANGE: 19920703
SC 13D/A
1
dsc13da.txt
AMENDMENT NO. 12 TO SCHEDULE 13D
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 12)
--------------------
STAR STRUCK, LTD.
------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $1.00 Par Value
------------------------------------------------------------------------------
(Title of Class of Securities)
847660107000
------------------------------------------------------------------------------
(CUSIP Number)
Peter Nisselson, Star Struck, Ltd.
1865 Palmer Avenue, Larchmont, New York 10538, (914) 833-0649
------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
7/23/01
------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of (S)(S) 240.13D-1(e), 240.13D-1(f) or 240.13-1(g), check
the following box[ ].
NOTE: Schedules filed in papers format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 240.13d-7 for
other parties to whom copies are to be sent.
Page 1 of 33
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following pages)
SCHEDULE 13D
CUSIP No. 847660107000
1 NAME OF REPORTING PERSON OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Peter Nisselson
------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
------------------------------------------------------------------------------
3 SEC USE ONLY
------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) OR 2(e) [ ]
------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.
------------------------------------------------------------------------------
7 SOLE VOTING POWER
778,652
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
EACH -------------------------------------------------------------
Page 2 of 33
REPORTI 9 SOLE DISPOSITIVE POWER
PERSON WITH
0
------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
778,652
------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[]
-----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
38.4%
------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
------------------------------------------------------------------------------
Item 1. Security and Issuer
-------------------
Common Shares, $1.00 par value per share, of Star Struck, Ltd., which
has its principal executive offices at 1865 Palmer Avenue, Larchmont, NY 10538.
Item 2. Identity and Background
-----------------------
(a) Peter Nisselson.
(b) 1865 Palmer Avenue, Larchmont, NY 10538.
(c) Chairman of the Board, Director and Secretary of Star Struck, Ltd.
(d)-(e) Mr. Nisselson has not during the last five years been
convicted of a criminal proceeding and was not a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction as a result of which
he was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to federal or
state securities laws or finding any violation with respect to such laws.
Page 3 of 33
(f) U.S. citizenship.
Item 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
Between July 2 and July 23, 2001, Mr. Nisselson acquired 24,000 shares
for an aggregate purchase price of $18,800. All funds for such purchases were
obtained from personal funds of Mr. Nisselson.
Item 4. Purpose of Transaction
----------------------
The purpose of the transactions is to increase the number of shares
owned by Mr. Nisselson and held for investment purposes.
Mr. Nisselson may from time to time purchase additional shares in the
public market.
Item 5. Interest in Securities of the Issuer
------------------------------------
(a) 778,652 shares, constituting 38.4%.
(b) Items 7, 8, 9 and 10 of the second part of the cover page are
hereby incorporated by reference.
(c) Between July 2 and July 23, 2001, Mr. Nisselson made
the following purchases:
Date of Number of Price
Transaction Shares per share($)
----------- ---------- ------------
7/02/01 5,000 .75
7/03/01 2,000 .75
7/03/01 3,000 .80
7/10/01 2,000 .775
7/11/01 2,000 .80
7/20/01 5,000 .80
7/23/01 5,000 .80
------
24,000
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of
the Issuer
-------------------------------------------
On August 7, 2000, Mr. Nisselson purchased from the Company the
Company's $666,000 10% Promissory Note dated August 7, 2000 due on August 31,
2003, together with a Common Stock Purchase Warrant to purchase up to 333,000
shares of the Company's Common Stock at an exercise price of $2 per share,
expiring July 31, 2005. Contemporaneously, Kenneth Karlan and Marilyn Karlan
(Mr. Karlan's mother) also purchased from the Company additional 10% Promissory
Notes and Common Stock Purchase Warrants. In connection with these purchases,
the Company entered into a Registration Rights Agreement
Page 4 of 33
dated August 7, 2000, with Mr. Nisselson Mr. Karlan and Mrs. Karlan granting
them the right to cause the Company to register with the Securities and Exchange
Commission shares of the Company's Common Stock issuable upon the exercise of
such Common Stock Purchase Warrants.
Mr. Nisselson has no other currently effective contract arrangement,
understanding or relationship with any other person with respect to any
securities of the Company, including, but not limited to the transfer or voting
of any such securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, loans, division of profits
or loss or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
--------------------------------
A. $666,000 10% Promissory Note of the Company due August 31, 2003.
B. Common Stock Purchase Warrant to purchase 333,000 shares of Common
Stock.
C. Registration Rights Agreement dated August 7, 2000.
Signature
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: July 25, 2001
S/Peter M. Nisselson
---------------------
Peter M. Nisselson
Page 5 of 33
EX-7.A
3
dex7a.txt
PROMISSORY NOTE FOR THE COMPANY DUE O8/31/2003
EXHIBIT 7A
----------
STAR STRUCK, INC.
10% PROMISSORY NOTE
$666,000 Bethel,
Connecticut
August 7, 2000
FOR VALUE RECEIVED, RECEIPT WHEREOF IS HEREBY ACKNOWLEDGED, STAR
STRUCK, INC. ("Maker"), a Connecticut corporation, hereby promises to pay to the
order of Peter Nisselson ("Payee"), having an address at c/o Star Struck, Ltd.,
1865 Palmer Avenue, Larchmont, New York 10538, the principal amount of Six
Hundred Sixty Six Thousand Dollars and No Cents ($666,000) with interest at the
rate of 10% per annum on the unpaid principal balance thereof. The principal
amount shall be payable on August 31, 2003. Interest on the unpaid principal
amount shall be payable quarterly on the last day of each November, February,
May and August hereafter until all principal and interest is paid in full.
Payments shall be made at the above-named address of Payee, or at such other
address as the holder hereof shall have designated for such purpose to Maker in
writing.
If Maker fails to make any payment when due under this Note and such
default continues for at least five days after notice of default delivered to
Maker, then, upon notice to Maker, the entire unpaid balance of principal and
interest shall, at the option of the holder of this Note, become immediately due
and interest payable on the unpaid balance of this Note shall thereafter accrue
at the rate of 10% per annum until payment in full of the unpaid balance of
principal plus all accrued interest.
Maker agrees to pay all reasonable costs and expenses, including
attorney's fees, for the collection of this Note upon default.
No delay or omission on the part of the holder of this Note in
exercising any right hereunder shall operate as a waiver of such right or of any
other right of such holder.
All payments on this Note shall be applied first to the payment of
accrued interest and any remainder to the payment of unpaid principal.
Maker hereby waives presentment, demand, notice of dishonor, notice of
maturity and notice of protest and all other notices related to this Note.
Page 6 of 33
Maker consents to the non-exclusive jurisdiction of the New York State
and United States courts located in the County of Westchester, State of New
York, for the enforcement of this Note.
This Note shall be governed by the laws of the
State of Connecticut without reference to its conflict of laws provisions.
This Note may not be modified, amended or terminated except by a
writing signed by Maker and the holder of this Note.
STAR STRUCK, INC.
By:
President
Page 7 of 33
EX-7.B
4
dex7b.txt
COMMON STOCK PURCHASE WARRANT TO PURCHASE
EXHIBIT 7B
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREUNDER AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
Page 8 of 33
STAR STRUCK, LTD.
COMMON STOCK PURCHASE WARRANT
Warrant No. 1 Dated: August 7, 2000
Star Struck, Ltd., a Delaware corporation (the "Company"), hereby
certifies that, for value received, Peter Nisselson, or his or her registered
assigns ("Holder"), is entitled, subject to the terms set forth below, to
purchase from the Company up to a total of 333,000 shares of common stock, $1.00
par value per share (the "Common Stock"), of the Company (each such share, a
"Warrant Share" and all such shares, the "Warrant Shares") at an exercise price
equal to $2.00 per share (as adjusted from time to time as provided in Section
7, the "Exercise Price"), at any time and from time to time from and after the
date hereof and through and including July 31, 2005 (the "Expiration Date"), and
subject to the following terms and conditions:
1. Registration of Warrant. The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the "Warrant
Register"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, and the Company shall not be affected by
notice to the contrary.
2. Registration of Transfers and Exchanges.
(a) The Company shall register the transfer of any portion of this
Warrant in the Warrant Register, upon surrender of this Warrant, with the Form
of Assignment attached hereto duly completed and signed, to the Transfer Agent
or to the Company at its address for notice set forth in Section 10. Upon any
such registration or transfer, a new warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new warrant, a "New Warrant"),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance of such transferee of all of the rights and obligations of a holder
of a Warrant.
(b) This Warrant is exchangeable, upon the surrender hereof by the
Holder to the office of the Company at its address for notice set forth in
Section 12 for one or more New Warrants, evidencing in the aggregate the right
to purchase the number of Warrant Shares which may then be purchased hereunder.
Any such New Warrant will be dated the date of such exchange.
Page 9 of 33
3. Duration and Exercise of Warrants.
(a) This Warrant shall be exercisable by the registered Holder on any
business day before 5:00 P.M., New York City time, at any time and from time to
time on or after the date hereof to and including the Expiration Date. At 5:00
P.M., New York City time on the Expiration Date, the portion of this Warrant not
exercised prior thereto shall be and become void and of no value. Prior to the
Expiration Date, the Company may not call or otherwise redeem this Warrant
without the prior written consent of the Holder.
(b) Upon delivery of a duly completed and signed Form of Election to
Purchase attached hereto to the Company at its address for notice set forth in
Section 12 and upon payment of the Exercise Price multiplied by the number of
Warrant Shares that the Holder intends to purchase hereunder, in the manner
provided hereunder, all as specified by the Holder in the Form of Election to
Purchase, the Company shall promptly (but in no event later than 3 business days
after the Date of Exercise (as defined herein) issue or cause to be issued and
cause to be delivered to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate for the Warrant Shares
issuable upon such exercise, free of restrictive legends except (i) either in
the event that a registration statement covering the resale of the Warrant
Shares and naming the Holder as a selling stockholder thereunder is not then
effective or the Warrant Shares are not freely transferable without volume
restrictions pursuant to Rule 144(k) promulgated under the Securities Act of
1933, as amended (the "Securities Act"), or (ii) if this Warrant shall have been
issued pursuant to a written agreement between the original Holder and the
Company, as required by such agreement. Any person so designated by the Holder
to receive Warrant Shares shall be deemed to have become holder of record of
such Warrant Shares as of the Date of Exercise of this Warrant.
A "Date of Exercise" means the date on which the Company shall have
received (i) the Form of Election to Purchase attached hereto (or attached to
such New Warrant) appropriately completed and duly signed, and (ii) payment of
the Exercise Price for the number of Warrant Shares so indicated by the holder
hereof to be purchased.
(c) This Warrant shall be exercisable, either in its entirety or, from
time to time, for a portion of the number of Warrant Shares. If less than all of
the Warrant Shares which may be purchased under this Warrant are exercised at
any time, the Company shall issue, or cause to be issued, at its expense, a New
Warrant evidencing the right to purchase the remaining number of Warrant Shares
for which no exercise has been evidenced by this Warrant.
4. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the issuance of Warrant Shares upon the
Page 10 of 33
exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the registration of any certificates for Warrant Shares or Warrants in a name
other than that of the Holder. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Warrant or
receiving Warrant Shares upon exercise hereof.
5. Replacement of Warrant. If this Warrant is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued in exchange
and substitution for and upon cancellation hereof, or in lieu of and
substitution for this Warrant, a New Warrant, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
indemnity, if requested, satisfactory to it. Applicants for a New Warrant under
such circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable charges as the Company may prescribe.
6. Reservation of Warrant Shares. The Company covenants that it will
at all times reserve and keep available out of the aggregate of its authorized
but unissued Common Stock, solely for the purpose of enabling it to issue
Warrant Shares upon exercise of this Warrant as herein provided, the number of
Warrant Shares which are then issuable and deliverable upon the exercise of this
entire Warrant, free from preemptive rights or any other actual contingent
purchase rights of persons other than the Holder (taking into account the
adjustments and restrictions of Section 7). The Company covenants that all
Warrant Shares that shall be so issuable and deliverable shall, upon issuance
and the payment of the applicable Exercise Price in accordance with the terms
hereof, be duly and validly authorized, issued and fully paid and nonassessable.
7. Certain Adjustments. The Exercise Price and number of Warrant
Shares issuable upon exercise of this Warrant are subject to adjustment from
time to time as set forth in this Section 7. Upon each such adjustment of the
Exercise Price pursuant to this Section 7, the Holder shall thereafter prior to
the Expiration Date be entitled to purchase, at the Exercise Price resulting
from such adjustment, the number of Warrant Shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
Warrant Shares issuable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
(a) If the Company, at any time while this Warrant is outstanding,
(i) shall pay a stock dividend or otherwise make a distribution or distributions
on shares of its Common Stock or on any other class of capital stock payable in
shares of Common Stock, (ii) subdivide outstanding shares of Common Stock into a
larger number of shares, or (iii) combine outstanding shares of Common Stock
into a smaller number of shares, the Exercise Price shall be multiplied by a
fraction of
Page 11 of 33
which the numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding before such event and of which the
denominator shall be the number of shares of Common Stock (excluding treasury
shares, if any) outstanding after such event. Any adjustment made pursuant to
this Section shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date in the case of a
subdivision or combination, and shall apply to successive subdivisions and
combinations.
(b) In case of any reclassification of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is converted into
other securities, cash or property, then the Holder shall have the right
thereafter to exercise this Warrant only into the shares of stock and other
securities and property receivable upon or deemed to be held by holders of
Common Stock following such reclassification or share exchange, and the Holder
shall be entitled upon such event to receive such amount of securities or
property equal to the amount of Warrant Shares such Holder would have been
entitled to had such Holder exercised this Warrant immediately prior to such
reclassification or share exchange. The terms of any such reclassification or
share exchange shall include such terms so as to continue to give to the Holder
the right to receive the securities or property set forth in this Section 7(b)
upon any exercise following any such reclassification or share exchange.
(c) If the Company, at any time while this Warrant is outstanding,
shall distribute to all holders of Common Stock (and not to holders of this
Warrant) evidences of its indebtedness or assets or rights or warrants to
subscribe for or purchase any security (excluding those referred to in Sections
7(a), (b) and (d)), then in each such case the Exercise Price shall be
determined by multiplying the Exercise Price in effect immediately prior to the
record date fixed for determination of stockholders entitled to receive such
distribution by a fraction of which the denominator shall be the Exercise Price
determined as of the record date mentioned above, and of which the numerator
shall be such Exercise Price on such record date less the then fair market value
at such record date of the portion of such assets or evidence of indebtedness so
distributed applicable to one outstanding share of Common Stock as determined by
the Company's independent certified public accountants that regularly examines
the financial statements of the Company (an "Appraiser").
(d) If the Company or any subsidiary thereof, as applicable with
respect to Common Stock Equivalents (as defined below), at any time while this
Warrant is outstanding, shall issue shares of Common Stock or rights, warrants,
options or other securities or debt that is convertible into or exchangeable for
shares of Common Stock ("Common Stock Equivalents"), entitling any person to
Page 12 of 33
acquire shares of Common Stock at a price per share less than the Exercise Price
(if the holder of the Common Stock or Common Stock Equivalent so issued shall at
any time, whether by operation of purchase price adjustments, reset provisions,
floating conversion, exercise or exchange prices or otherwise, or due to
warrants, options or rights issued in connection with such issuance, be entitled
to receive shares of Common Stock at a price less than the Exercise Price, such
issuance shall be deemed to have occurred for less than the Exercise Price),
then, at the sole option of the Holder, either (1) the Exercise Price shall be
multiplied by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to the issuance of such Common
Stock or such Common Stock Equivalents plus the number of shares of Common Stock
which the offering price for such shares of Common Stock or Common Stock
Equivalents would purchase at the Exercise Price, and the denominator of which
shall be the sum of the number of shares of Common Stock outstanding immediately
prior to such issuance plus the number of shares of Common Stock so issued or
issuable or (2) the Exercise Price shall be replaced with the conversion
exchange or purchase price for such Common Stock Equivalents (including any
reset provisions thereof), provided, that for purposes hereof, all shares of
Common Stock that are issuable upon conversion, exercise or exchange of Common
Stock Equivalents shall be deemed outstanding immediately after the issuance of
such Common Stock Equivalents. Such adjustment shall be made whenever such
Common Stock or Common Stock Equivalents are issued. However, upon the
expiration of any common Stock Equivalents the issuance of which resulted in an
adjustment in the Exercise Price pursuant to this Section, if any such Common
Stock Equivalents shall expire and shall not have been exercised, the Exercise
Price shall immediately upon such expiration be recomputed and effective
immediately upon such expiration be increased to the price which it would have
been (but reflecting any other adjustments in the Exercise Price made pursuant
to the provisions of this Section after the issuance of such Common Stock
Equivalents) had the adjustment of the Exercise Price made upon the issuance of
such Common Stock Equivalents been made on the basis of offering for
subscription or purchase only that number of shares of the Common Stock actually
purchased upon the exercise of such Common Stock Equivalents actually exercised.
(e) In case of any (1) merger or consolidation of the Company with or
into another Person, or (2) sale by the Company of more than one-half of the
assets of the Company (on a book value basis) in one or a series of related
transactions, the Holder shall have the right thereafter to (A) exercise this
Warrant for the shares of stock and other securities, cash and property
receivable upon or deemed to be held by holders of Common Stock following such
merger, consolidation or sale, and the Holder shall be entitled upon such event
or series of related events to receive such amount of securities, cash and
property as the
Page 13 of 33
Common Stock for which this Warrant could have been exercised immediately prior
to such merger, consolidation or sales would have been entitled, or (B) in the
case of a merger or consolidation, (x) require the surviving entity to issue
common stock purchase warrants equal to the number Warrant Shares to which this
Warrant then permits, which newly warrant shall be identical to this Warrant,
and (y) simultaneously with the issuance of such warrant, shall have the right
to exercise such warrant only into shares of stock and other securities, cash
and property receivable upon or deemed to be held by holders of Common Stock
following such merger or consolidation. In the case of clause (B), the exercise
price for such new warrant shall be based upon the amount of securities, cash
and property that each share of Common Stock would receive in such transaction
and the Exercise Price of this Warrant immediately prior to the effectiveness or
closing date for such transaction. The terms of any such merger, sale or
consolidation shall include such terms so as continue to give the Holder the
right to receive the securities, cash and property set forth in this Section
upon any conversion or redemption following such event. This provision shall
similarly apply to successive such events.
(f) For the purposes of this Section 7, the following clauses shall
also be applicable:
(i) Record Date. In case the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them (A) to receive a
dividend or other distribution payable in Common Stock or in securities
convertible or exchangeable into shares of Common Stock, or(B) to subscribe for
or purchase Common Stock or securities convertible or exchangeable into shares
of Common Stock, then such record date shall be deemed to be the date of the
issue or sale of the shares of Common Stock deemed to have been issued or sold
upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase, as the
case may be.
(ii) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
(g) All calculations under this Section 7 shall be made to the nearest
cent or the nearest 1/100th of a share, as the case may be.
(h) Whenever the Exercise Price is adjusted pursuant to Section 7(c)
above, the Holder, after receipt of the determination by the Appraiser, shall
have the right to select an additional appraiser (which shall be a nationally
recognized accounting firm), in which case the adjustment shall be equal to the
average of the adjustments recommended by each of the Appraiser and such
appraiser. The Holder shall promptly mail or cause to be mailed to the Company,
a notice setting forth the Exercise Price after such adjustment and setting
forth a brief statement
Page 14 of 33
of the facts requiring such adjustment. Such adjustment shall become effective
immediately after the record date mentioned above.
(i) If:
(i) the Company shall declare a dividend (or any other distribution) on its
Common Stock; or (ii) the Company shall declare a special nonrecurring dividend
on or a redemption of its Common Stock; or (iii) the Company shall authorize the
granting to all holders the Common Stock rights orwarrants to subscribe for or
purchase any shares of capital stock of any class or ofrights; or (iv) the
approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which
the Company is a party, any sale or transfer of all or substantially all of the
assets of the Company, or any compulsory share exchange whereby the Common Stock
is converted into other securities, cash or property; or (v) the Company shall
authorize the voluntary dissolution, liquidation or winding up of the affairs of
the Company, the Company shall cause to be mailed to each Holder at their last
addresses as they shall appear upon the Warrant Register, at least 20 calendar
days prior to the applicable record or effective date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution, redemption, rights or warrants, or if a record is
not to be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distributions, redemption, rights or warrants are
to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up; provided, however, that the failure to mail such notice or any
defect therein or in the mailing thereof shall not affect the validity of the
corporate action required to be specified in such notice.
9. Payment of Exercise Price. The Exercise Price shall be payable by
check or wire transfer on immediately available or New York ClearingHouse funds.
10. Fractional Shares. The Company shall not be required to issue or
cause to be issued fractional Warrant Shares on the exercise of this Warrant.
The number of full Warrant Shares which shall be issuable upon the exercise of
this Warrant shall be computed on the basis of the aggregate number of Warrant
Shares purchasable on exercise of this Warrant so presented. If any fraction of
a Warrant Share would, except for the provisions of this Section, be issuable on
the exercise of this Warrant, the Company shall pay an amount in cash equal to
the Exercise Price multiplied by such fraction.
Page 15 of 33
10. Notices. Any and all notices or other communications or
deliveries hereunder shall be in writing and shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified in this
Section prior to 5:00 p.m. (New York City time) on a business day, (ii) the
business day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile telephone number specified in this
Section later than 5:00 p.m. (New York City time) on any date and earlier than
11:59 p.m. (New York City time) on such date, (iii) the business day following
the date of mailing, if sent by nationally recognized overnight courier service,
or (iv) upon actual receipt by the party to whom such notice is required to be
given. The addresses for such communications shall be: (i) if to the Company, to
Star Struck, Ltd., 1865 Palmer Avenue, Larchmont, New York 10538 to the Holder,
to the Holder at the address or facsimile number appearing on the Warrant
Register or such other address or facsimile number as the Holder may provide to
the Company in accordance with this Section.
11. Warrant Agent. The Company shall serve as warrant agent under
this Warrant. Upon thirty days' notice to the Holder, the Company may appoint a
new warrant agent. Any corporation into which the Company or any new warrant
agent may be merged or any corporation resulting from any consolidation to which
the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant
agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Warrant Register.
12. Miscellaneous.
(a) This Warrant shall be binding on and inure to the benefit of
the parties hereto and their respective successors and assigns. This Warrant
may be amended only in writing signed by the Company and the Holder and their
successors and assigns.
(b) Subject to Section 12(a), above, nothing in this Warrant shall
be construed to give to any person or corporation other than the Company and
the Holder any legal or equitable right, remedy or cause under this Warrant.
This Warrant shall inure to the sole and exclusive benefit of the Company and
the Holder.
(c) The corporate laws of the State of Delaware shall govern all
issues concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by and construed and
enforced in accordance with
Page 16 of 33
the internal laws of the State of New York, without regard to the principles of
conflicts of law thereof. The Company and the Holder hereby irrevocably submit
to the exclusive jurisdiction of the state and federal courts sitting in the
County of Westchester, State of New York, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, or that such suit, action or proceeding is
improper. Each of the Company and the Holder hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by receiving a copy thereof sent to the Company at the address in
effect for notices to it under this instrument and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law.
(d) The headings herein are for convenience only, do not constitute
a part of this Warrant and shall not be deemed to limit or affect any of the
provisions hereof.
(e) In case any one or more of the provisions of this Warrant shall
be invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Warrant shall not in any way be
affected or impaired thereby and the parties will attempt in good faith to
agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
STAR STRUCK, LTD.
President
Page 17 of 33
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Warrant) To Star Struck, Ltd.:
The undersigned hereby irrevocably elects to purchase _____________
shares of common stock, $______________ par value per share, of Star Struck,
Ltd., (the "Common Stock") and, if such Holder is not utilizing the cashless
exercise provisions set forth in this Warrant, encloses herewith $________ in
cash, certified or official bank check or checks, which sum represents the
aggregate Exercise Price (as defined in the Warrant) for the number of shares of
Common Stock to which this Form of Election to Purchase relates, together with
any applicable taxes payable by the undersigned pursuant to the Warrant.
The Exercise Price applicable to the purchase hereunder equals
$___________.
The undersigned requests that certificates for the shares of Common
Stock issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER
(Please print name and address)
the number of shares of Common Stock issuable upon this exercise shall not be
all of the shares of Common Stock which the undersigned is entitled to purchase
in accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
(Please print name and address)
Dated: _____________, ____
Name of Holder:
(Print)
(By:)
(Name:)
(Title:)
Page 18 of 33
(Signature must conform in all respects to name of holder as
specified on the face of the Warrant)
FORM OF ASSIGNMENT
To be completed and signed only upon transfer of Warrant
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Warrant to purchase ____________ shares of Common Stock of Star Struck, Ltd., to
which the within Warrant relates and appoints ________________ attorney to
transfer said right on the books of Star Struck, Ltd., with full power of
substitution in the premises.
Dated:_______________, ____
_______________________________________
(Signature must conform in all respects to name of holder as
specified on the face of the Warrant)
_______________________________________
Address of Transferee
_______________________________________
Page 19 of 33
EX-7.C
5
dex7c.txt
REGISTRATION RIGHTS AGREEMENT DATED 08/07/00
EXHIBIT 7C
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of August 7, 2000, among Star Struck, Ltd., a Delaware
corporation (the ACompany@), and Kenneth Karlan, Marilyn Karlan, and Peter
Nisselson (each of such individuals is referred to as an "Investor" and
collectively as the "Investors").
For other good and valuable consideration, the parties hereby agree as
follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
Commission: shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended;
Holder: shall mean any holder of Registrable Securities, including the
Investors;
Initiating Holder: shall mean any Holder or Holders who in the
aggregate are Holders of more than 50% of the then outstanding Registrable
Securities;
Person: shall mean an individual, partnership, joint stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof; register, registered and registration: shall mean
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement;
Registrable Securities: shall mean the shares of Company Common Stock
issuable or issued upon exercise of the Company=s Common Stock Purchase Warrants
issued to the Investors, provided, that Registrable Securities shall not include
(i) securities with respect to which a registration statement with respect to
the sale of such securities has become effective under the Securities Act and
all such securities have been disposed of in accordance with such registration
statement, (ii) such securities as are actually sold pursuant to Rule 144 (or
any successor provision thereto) under the Securities Act ("Rule 144"), or (iii)
such securities as are acquired by the Company or any of its subsidiaries
Registration Expenses: shall mean all expenses incurred by the Company
in compliance with Sections 3(a), (b) and (c) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
Page 20 of 33
all the Holders, blue sky fees and expenses and the expense of any special
audits incident to or required by any such registration (but excluding Selling
Expenses);
Security, Securities: shall have the meaning set forth in Section 2(1)
of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended; and
Selling Expenses: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than fees and expenses of
one counsel for all the Holders.
2. RESTRICTIONS ON TRANSFER
Prior to any proposed transfer of any Registrable Securities (other
than under the circumstances described in Section 3 hereof), the Holder thereof
shall give written notice to the Company of its intention to effect such
transfer. Each such notice shall describe the manner of the proposed transfer
and, if requested by the Company, shall be accompanied by an opinion of counsel
reasonably satisfactory to the Company to the effect that the proposed
transfermay be effected without registration under the Securities Act, whereupon
such Holder shall be entitled to transfer the Registrable Securities in
accordance with the terms of its notice.
3. REGISTRATION RIGHTS
(a) Requested Registration
----------------------
(i) Request for Registration. If the Company shall receive from
------------------------
an Initiating Holder, at any time on or after March 1, 2001, a written request
that the Company effect any registration with respect to all of such Investor's
Registrable Securities, the Company will, unless all of the Registrable
Securities being requested to be registered are eligible for resale in
accordance with Rule 144 within a three-month period:
(A) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(B) as soon as practicable (and in any event, within 45
days of any valid request), use its reasonable best efforts to effect such
registration (including, without limitation, the execution of an undertaking to
file post-effective amendments, appropriate qualification under applicable blue
sky or other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received by the Company
within ten business days after written notice from the Company is given under
Section 3(a)(i)(A) above;
Page 21 of 33
(ii) Limitations on Registration. The Company shall not be
---------------------------
obligated to effect, or take any action to effect, any such registration
pursuant to this Section 3(a): (x) If, upon receipt of a registration request
pursuant to this Section 3(a), the Company is advised in writing (with a copy to
each Initiating Holder) by a recognized national independent investment banking
firm selected by the Company that, in such firm's opinion, a registration at the
time and on the terms requested would adversely affect any then pending public
offering of securities of the Company by the Company (other than in connection
with benefit and similar plans) (collectively, a "Company Offering") with
respect to which the Company has filed a registration statement prior to the
receipt of a registration request pursuant to this Section 3(a), the Company
shall not be required to effect a registration pursuant to this Section 3(a)
until the earlier of (i) 30 days after the completion of such ompany Offering,
(ii) promptly after any abandonment of such Company Offering or (iii) 60 days
after the date of receipt of a registration request pursuant to this Section
3(a); provided, however, that the periods during which the Company shall not be
required to effect a registration pursuant to this Section 3(a) together with
any periods of suspension under Section 3(i) hereof may not exceed 90 days in
the aggregate during any period of 12 consecutive months;
(y) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
affecting such registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act or applicable
rules or regulations thereunder; and
(z) After the Company has effected two registrations pursuant to
this Section 3(a) and such registrations have been declared or
ordered effective and the sales of such Registrable Securities
shall have closed; provided, that Investors shall not have the
right to request an underwritten registration pursuant to this
Section 3(a) more than one time in any six-month period.
(iii) Underwriting. If the Initiating Holders intend to
------------
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to Section 3(a). The Holders whose shares are to be included in such
registration and the Company shall enter into underwriting and related
agreements
Page 22 of 33
in customary form with the representative of the underwriter or underwriters
elected for such underwriting by the Initiating Holders and reasonably
acceptable to the Company. Such underwriting agreement will contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Section 3(e) hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 3(d) hereof, and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
the Holders. The Company shall cooperate fully with the Holders and the
underwriters in connection with any underwritten offering.
(iv) Underwriter=s Marketing Limitation. Notwithstanding
----------------------------------
any other provision of this Section 3(a), if the representative advises the
Holders in writing that marketing factors require a limitation on the number of
shares to be underwritten, the number of shares included in the registration by
each Holder shall be reduced on a pro rata basis (based on the number of shares
held by such Holder), by such minimum number of shares as is necessary to comply
with such request; provided further, however, that in the event that the number
of shares included in the registration by the Holder is reduced by greater than
one-third of the number of shares requested to be included by such Holder, then
such registration shall not count against such Investor as a requested
registration pursuant to Section 3(a)(i)(B)(z). No Registrable Securities or any
other securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. The securities so
withdrawn shall also be withdrawn from registration. If the underwriter has not
limited the number of Registrable Securities or other securities to be
underwritten, the Company and officers and directors of the Company may include
its or their securities for its or their own account in such registration if the
representative so agrees and if the number of Registrable Securities and other
securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
(b) Company Registration.
--------------------
(i) If the Company shall determine to register any of its
equity securities for its own account other than a registration relating solely
to benefit plans, or a registration relating solely to a Commission Rule 145
transaction, or a registration on any registration form which does not permit
secondary sales or does not include substantially the same information as would
be required to be included in a registration statement covering the sale of
Registrable Securities, the Company will
(A) promptly give to each of the Holders a
written notice thereof; and
(B) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
Page 23 of 33
involved therein, all the Registrable Securities specified in a written request
or requests, made by any Holder within ten (10) business days after the giving
of the written notice from the Company described in clause (i) above, except as
set forth in Section 3(b)(ii) below. Such written request shall specify the
amount of Registrable Securities intended to be disposed of by a Holder and may
specify all or a part of the Holders' Registrable Securities.
Notwithstanding the foregoing, if, at any time after giving such
written notice of its intention to effect such registration and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register such
equity securities the Company may, at its election, give written notice of such
determination to the Holders and thereupon the Company shall be relieved of its
obligation to register such Registrable Securities in connection with the
registration of such equity securities (but not from its obligation to pay
Registration Expenses to the extent incurred in connection therewith as provided
herein), without prejudice, however, to the rights (if any) of Holders
immediately to request that such registration be effected as a registration
under Section 3(a) hereof.
(ii) Underwriting. If the registration of which the Company gives
------------
notice is for a registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written notice
given pursuant to Section 3(b)(i)(A). In such event, the right of each of the
Holders to registration pursuant to this Section 3(b) shall be conditioned upon
such Holders' participation in such underwriting and the inclusion of such
Holders' Registrable Securities in the underwriting to the extent provided
herein. The Holders whose shares are to be included in such registration shall
(together with the Company) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected for the
underwriting by the Company. Such underwriting agreement will contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Section 3(f) hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 3(e), and the representations and warranties
by, and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of the Holders
whose shares are to be included in such registration. Notwithstanding any other
provision of this Section 3(b), if the representative determines that marketing
factors require a limitation on the number of shares to be underwritten, the
Company shall so advise all holders of securities requesting registration, and
the number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated in the following manner: the
number of shares that may be included in the registration and underwriting by
each of the Holders and the Company shall be reduced, on a pro rata basis (based
on the
Page 24 of 33
number of shares held by such holder), by such minimum number of shares as is
necessary to comply with such limitation. If any of the Holders disapproves of
the terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
(c) Expenses of Registration. All Registration Expenses incurred
------------------------
in connection with any registration, qualification or compliance pursuant to
this Section 3 shall be borne by the Company, and all Selling Expenses shall be
borne by the Holders of the securities so registered pro rata on the basis of
the number of their shares so registered; provided, however, that if, as a
result of the withdrawal of a request for registration by any of the Holders
(except if such withdrawal is at the request of the Company), the registration
statement does not become effective, the Holders requesting registration may
elect to bear the Registration Expenses (pro rata on the basis of the number of
their shares so included in the registration request, or on such other basis as
such Holders may agree), in which case such registration shall not be counted as
a registration pursuant to Section 3(a)(i)(B)(z).
(d) Registration Procedures. In the case of each registration
-----------------------
effected by the Company pursuant to this Section 3, the Company will keep the
Holders, as applicable, advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense, the Company will:
(i) keep such registration effective for a period of one
hundred eighty (180) days or until the Holders, have completed the distribution
described in the registration statement relating thereto, whichever first
occurs;
(ii) furnish to each Holder, and to any underwriter before
filing with the Commission, copies of any registration statement (including all
exhibits) and any prospectus forming a part thereof and any amendments and
supplements thereto (including all documents incorporated or deemed incorporated
by reference therein prior to the effectiveness of such registration statement
and including each preliminary prospectus, any summary prospectus or any term
sheet (as such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, which documents, other
than documents incorporated or deemed incorporated by reference, will be subject
to the review of the Holders and any such underwriter for a period of at least
five business days, and the Company shall not file any such registration
statement or
Page 25 of 33
such prospectus or any amendment or supplement to such registration statement or
prospectus to which any Holder or any such underwriter shall reasonably object
within five business days after the receipt thereof; a Holder or such
underwriters, if any, shall be deemed to have reasonably objected to such filing
only if the registration statement, amendment, prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission;
(iii) furnish to each Holder and to any underwriter, such number
of conformed copies of the applicable registration statement and of each
amendment and supplement thereto (in each case including all exhibits) and such
number of copies of the prospectus forming a part of such registration statement
(including each preliminary prospectus, any summary prospectus or any term sheet
(as such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, including without
limitation documents incorporated or deemed to be incorporated by reference
prior to the effectiveness of such registration, as each of the Holders or any
such underwriter from time to time may reasonably request;
(iv) to the extent practicable, promptly prior to the filing of
any document that is to be incorporated by reference into any registration
statement or prospectus forming a part thereof subsequent to the effectiveness
thereof, and in any event no later than the date such document is filed with the
Commission, provide copies of such document to the Holders, if requested, and to
any underwriter, and make representatives of the Company available for
discussion of such document and other customary due diligence matters, and
include in such document prior to the filing thereof such information as any
Holder or any such underwriter reasonably may request;
(v) make available at reasonable times for inspection by the
Holders, any underwriter participating in any disposition pursuant to such
registration and any attorney or accountant retained by the Holders or any such
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company and cause the officers, directors and employees of the
Company to supply all information reasonably requested by the Holders and any
such underwriters, attorneys or accountants in connection with such registration
subsequent to the filing of the applicable registration statement and prior to
the effectiveness of the applicable registration statement;
(vi) use its reasonable best efforts (x) to register or qualify
all Registrable Securities and other securities covered by such registration
under such other securities or blue sky laws of such States of the United States
of America where an exemption is not available and as the sellers of Registrable
Securities covered by such registration shall reasonably request, (y) to keep
such registration or qualification in effect for so long as the applicable
registration statement remains
Page 26 of 33
in effect, and (z) to take any other action which may be reasonably necessary or
advisable to enable such sellers to consummate the disposition in such
jurisdictions of the securities to be sold by such sellers, except that the
Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where it is not so
qualified, or to subject itself to taxation in any such jurisdiction, or to
execute a general consent to service of process in effecting such registration,
qualification or compliance, unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder;
(vii) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or authorities as
may be necessary in the opinion of counsel to the Company and counsel to the
Holders of Registrable Securities to enable the Holders thereof to consummate
the disposition of such Registrable Securities;
(viii) subject to Section 3(g) hereof, promptly notify each
Holder of Registrable Securities covered by a registration statement (A) upon
discovery that, or upon the happening of any event as a result of which, the
prospectus forming a part of such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
(B) of the issuance by the Commission of any stop order the effectiveness of
such registration statement or the initiation of proceedings for that purpose,
(C) of any request by the Commission for (1) amendments to such registration
statement or any document incorporated or deemed to be incorporated by reference
in any such registration statement, (2) supplements to the prospectus forming a
part of such registration statement or (3) additional information, or (D) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation of any proceeding for
such purpose, and at the request of any such Holder promptly prepare and furnish
to it a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ix) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of any such registration, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction;
(x) if requested by any Initiating Holder or any underwriter,
Page 27 of 33
promptly incorporate in such registration statement or prospectus, pursuant to a
supplement or post effective amendment if necessary, such information as the
Initiating Holder and any underwriter may reasonably request to have included
therein, including, without limitation, information relating to the "plan of
distribution" of the Registrable Securities, information with respect to the
principal amount or number of shares of Registrable Securities being sold to
such underwriter, the purchase price being paid therefor and any other terms of
the offering of the Registrable Securities to be sold in such offering and make
all required filings of any such prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters to
be incorporated in such prospectus supplement or post effective amendment;
(xi) furnish to the Holders, addressed to them, an opinion of
counsel for the Company, dated the date of the closing under the underwriting
agreement, if any, or the date of effectiveness of the registration statement if
such registration is not an underwritten offering, and use its reasonable best
efforts to furnish to the Holders, addressed to them, a "cold comfort" letter
signed by the independent certified public accountants who have certified the
Company's financial statements included in such registration, covering
substantially the same matters with respect to such registration (and the
prospectus included therein) and, in the case of such accountants' letter, with
respect to events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of securities and
such other matters as the Holders may reasonably request;
(xii) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months, but not more than 18 months,
beginning with the first full calendar month after the effective date of such
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(xiii) provide promptly to the Holders upon request any document
filed by the Company with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act;
(xiv) use its reasonable best efforts to cause all Registrable
Securities included in any registration pursuant hereto to be listed on each
securities exchange on which securities of the same class are then listed, or,
if not then listed on any securities exchange, to be eligible for trading in any
over-the-counter market or trading system in which securities of the same class
are then traded; and
(xv) cause senior management reasonably to participate in
"roadshow" presentations and other customary marketing efforts.
(e) Indemnification.
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Page 28 of 33
(i) The Company will indemnify each of the Holders, as
applicable, each of its affiliates and its and any such affiliates' respective
officers, directors, members, partners and other representatives, and each
person controlling each of the Holders, with respect to each registration which
has been effected pursuant to this Section 3, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or the Exchange Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each such person, each such underwriter and each
person who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case if and to the extent that it is finally judicially
determined that any such claim, loss, damage, liability or expense primarily
arises out of or is based primarily on any untrue statement or omission based
upon written information furnished to the Company by the Holders or underwriter
and stated to be specifically for use therein. The indemnity agreement contained
in this paragraph shall not apply to the extent that any claims, losses, damages
or liabilities (or actions in respect thereof) result from the fact that a
current copy of the prospectus was not sent or given to a proposed transferee
asserting any such claim, loss, damage, liability or action, at or prior to the
written confirmation of the sale of the Registrable Securities concerned to such
person if it is determined that the Company provided such prospectus to such
Holder in a timely manner prior to such sale and it was the responsibility of
the Holder under the Securities Act to provide the prospective transferee with a
current copy of the prospectus and such prospectus would have cured the defect
giving rise to such claim, loss, damage, liability or action.
(ii) Each of the Holders will, if Registrable Securities held
by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, and each person who
controls the Company or such writer, all claims, losses, damages and liabilities
(or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document made by
such Holder, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements by
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such Holder therein not misleading, and will reimburse the Company, directors,
officers, partners, members, persons, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability or action, in each case if
and to the extent, but only to the extent, that it is finally judicially
determined that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement, prospectus,
offering circular or other document primarily in reliance upon and in conformity
with written information furnished to the Company by such Holder and stated to
be specifically for use therein ("Holder Information"); provided, however, that
the obligations of each of the Holders hereunder and under clause(vi) below
shall be limited to an amount equal to the net proceeds to such Holder of
securities sold as contemplated herein and no Holder will have any liability
hereunder except as to Holder Information about itself.
(iii) Each party entitled to indemnification under this Section
3(e) (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of one such counsel for all Indemnified Parties
shall be at the expense of the Indemnifying Party), and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 3 unless
and only to the extent that the Indemnifying Party is materially prejudiced
thereby. No Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party (which consent shall
not be unreasonably withheld or delayed), consent to entry of any judgment or
enter into any settlement which does not include as an of conditional term
thereof the giving by the claimant or plaintiff to such indemnified Party of a
release from all liability in respect to such claim or litigation. Indemnified
Party shall furnish such information regarding itself or the claim in question
as an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and litigation
resulting therefrom.
(iv) If the indemnification provided for in this Section 3(e)
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of
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such loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and of the Indemnified Party on the other in connection with the statements
or omissions which resulted in such loss, liability, claim, damage or expense,
as well as any other relevant equitable considerations. The relative fault of
the Indemnifying Party and of the Indemnified Party shall be determined by
reference to, among other things, whether the untrue (or alleged untrue)
statement of a material fact or the omission (or alleged omission) to state a
material fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with any underwritten public offering
contemplated by this Agreement are in conflict with the foregoing provisions,
the provisions in such underwriting agreement shall be controlling.
(vi) The foregoing indemnity agreement of the Company and
Holders is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage made in a preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement in question becomes effective or the amended prospectus
filed with the Commission pursuant to Commission Rule 424(b) (the "Final
Prospectus"), such indemnity or contribution agreement shall not inure to the
benefit of any underwriter or Holder (but only if such Holder was required to
deliver such Final Prospectus) if a copy of the Final Prospectus was furnished
to the underwriter and was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act.
(f) Information by the Holders. Each of the Holders holding
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securities included in any registration shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Section 3.
(g) Holdback Agreement; Postponement. Notwithstanding the
--------------------------------
provisions of Sections 3(a) and (b), if the Board of Directors of the Company
determines in good faith that it is in the best interests of the Company (A) not
to disclose the existence of facts surrounding any proposed or pending
acquisition, disposition, strategic alliance or financing transaction involving
the Company or (B) for any purpose, to suspend the registration rights set forth
herein, the Company may, by notice to the Holders in accordance with Section
6(a), postpone any registration which is requested pursuant to Section 3(a), for
such a period of time as the Board of Directors may reasonably determine;
provided that (x) such periods of suspension together with any periods of
suspension effected pursuant to Section 3(a)(i)(B)(w) hereof may not exceed 90
days in the aggregate during any period of 12 consecutive months and (y) the
Company may not impose such a suspension or a postponement pursuant to Section
3(a)(i)(B)(w) following the printing and distribution of a
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preliminary prospectus in any underwritten public offering of Registrable
Securities pursuant to Section 3(a)(i) (except such suspension, not to exceed
ten days, which results from an event that is not within the reasonable control
of the Company).
(h) Assignment. The registration rights set forth in Section
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3 hereof may be assigned, in whole or in part, to any transferee of Registrable
Securities (who shall be considered thereafter to be a Holder and shall be bound
by all obligations and limitations of this Agreement).
4. RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available (as those
terms are understood and defined in Rule 144) at all times; and
(ii) use its reasonable best efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act.
5. INTERPRETATION OF THIS AGREEMENT
(a) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Georgia, without giving
effect to the principles of conflict of laws of such State.
(b) Section Headings. The headings of the sections and
----------------
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
6. MISCELLANEOUS
(a) Notices.
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(i) All communications under this Agreement shall be
in writing and shall be delivered by facsimile or by hand or mailed by overnight
courier or by registered or certified mail, postage prepaid:.
(A) if to the Company, to Star Struck, Ltd.,
1865 Palmer Avenue, Larchmont, New York 10538 or at such other address as it may
have furnished in writing to the Investors;
(B) if to the Investors, at the addresses
listed on Schedule I hereto, or at such other addresses as may have been
furnished the Company in writing.
(ii) Any notice so addressed shall be deemed to be
given: if delivered by hand, on the date of such delivery; if mailed by courier,
on the first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
(b) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties.
(c) Entire Agreement; Amendment and Waiver. This Agreement
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constitutes the entire understanding of the parties hereto and supersedes all
prior understandings among such parties with respect to the subject matter
hereof. This
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Agreement may be amended, and the observance of any term of this Agreement may
be waived, with (and only with) the written consent of the parties.
(d) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(e) Remedies. Each Holder of Registrable Securities, in
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addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(f) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended and understood that all of the rights and
privileges of each of the Holders shall be enforceable to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
STAR STRUCK, LTD.
By: ------------------------------------
Title:
INVESTORS:
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Peter Nisselson
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Kenneth Karlan
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Marilyn Karlan
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