Preferred Stock Purchase Agreement - Big Entertainment Inc. and Auric Partners Ltd.
PREFERRED STOCK PURCHASE AGREEMENT
Preferred Stock Purchase Agreement (the "Agreement") dated as of
December 20, 1996 between Big Entertainment, Inc., a Florida corporation (the
"Company") and Auric Partners Limited (the "Purchaser").
R E C I T A L S:
A. The Company desires to sell shares of the Company's 4% $100
Convertible Series C Preferred Stock, par value $.01 per share (the "Preferred
Stock"), to the Purchaser pursuant to this Agreement in part to finance the
expansion of its retail operations and for general corporate purposes.
B. The Purchaser desires to purchase shares of Preferred Stock pursuant
to this Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchasers hereby agree as follows:
1. PURCHASE OF PREFERRED STOCK. The Company hereby sells, conveys and
transfers to the Purchaser and the Purchaser hereby purchases from the Company
the number of shares of the Preferred Stock set forth on Schedule I hereto. The
terms of the Preferred Stock are as set forth in an Amendment to the Company's
Articles of Incorporation (the "Articles of Amendment") filed with the Florida
Secretary of State pursuant to Sections 607.0602 and 602.1006 of the Florida
Business Corporation Act, the form of which Articles of Amendment is attached as
Exhibit A hereto. The purchase price for the Preferred Stock (the "Purchase
Price") is $100 per share.
2. DELIVERIES BY THE PARTIES. On the date hereof:
(a) The Company will deliver to the Purchaser (i) a certificate
evidencing its shares of the Preferred Stock; (ii) a Good Standing Certificate
for the Company issued by the Secretary of State of Florida; (iii) a certified
copy of resolutions of the Board of Directors authorizing the execution and
delivery of this Agreement and consummation of the transactions contemplated
hereby; (iv) the legal opinion of Broad and Cassel, counsel to the Company, in
form and substance reasonably satisfactory to the Purchaser; and (v) appropriate
evidence of the filing and recordation of the Articles of Amendment pursuant to
Florida law.
(b) The Purchaser will deliver to the Company payment, by wire
transfer, of the Purchase Price for its shares of the Preferred Stock.
3. USE OF PROCEEDS. The Company agrees that not less than 50% of the
proceeds from the sale of the Preferred Stock hereunder, net of commissions and
expenses of Keane Securities, Co., Inc., the placement agent for the sale of the
Preferred Stock (the "Placement
<PAGE>
Agent"), will be used by the Company for the development, construction and
operation of Entertainment Super/bulletKiosks or in-line retail facilities and
the balance of such net proceeds will be used for general working capital
purposes.
4. REPRESENTATIONS OF THE PURCHASERS. The Purchaser acknowledges,
represents and warrants as follows:
(a) RECEIPT OF CORPORATE INFORMATION. All requested
publicly-available documents, records and books pertaining to the Company and
the offer and sale hereby of the Preferred Stock and the shares of the Company's
Common Stock, par value $.01 per share (the "Common Stock"), into which the
Preferred Stock is convertible (the "Conversion Shares" and, together with the
Preferred Stock, the "Securities"), including, without limitation, the Company's
Annual Report on Form 10-KSB for the Year Ended December 31, 1995 (the "Form
10-KSB") and Quarterly Report on Form 10-QSB for the Quarter Ended September 30,
1996 (the "Form 10-QSB"; the Form 10-KSB and the Form 10-QSB are collectively
referred to herein as the "SEC Documents"), have been delivered to the Purchaser
and/or its advisors, and all of the Purchaser's questions and requests for
information have been answered to the Purchaser's satisfaction.
(b) RISKS. The Purchaser acknowledges and understands that the
purchase of the Securities involves a high degree of risk and is suitable only
for persons of adequate financial means who have no need for liquidity in this
investment in that (i) the Purchaser may not be able to liquidate the investment
in the event of an emergency; (ii) transferability is extremely limited; and
(iii) in the event of a disposition, the Purchaser could sustain a complete loss
of its entire investment. The Purchaser is sufficiently experienced in financial
and business matters to be capable of evaluating the merits and risks of an
investment in the Company; has evaluated such merits and risks, including risks
particular to the Purchaser's situation; and the Purchaser has determined that
this investment is suitable for the Purchaser. The Purchaser has adequate
financial resources and can bear a complete loss of the Purchaser's investment.
(c) ACCREDITED INVESTOR STATUS. The Purchaser is an "accredited
investor" as defined in Rule 501(a) of Regulation D promulgated by the
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "Securities Act").
(d) INVESTMENT INTENT. The Purchaser hereby represents that the
Securities being purchased hereunder are being acquired for the Purchaser's own
account with no intention of distributing such securities to others. The
Purchaser has no contact, undertaking, agreement or arrangement with any person
to sell, transfer or otherwise distribute to any person or to have any person
sell, transfer or otherwise distribute for the Purchaser the Securities being
purchased hereunder or any interest therein. The Purchaser is presently not
engaged, nor does the Purchaser plan to engage within the presently foreseeable
future, in any discussion with any person regarding such a sale, transfer or
other distribution of the securities being purchased hereunder or any interest
therein.
-2-
<PAGE>
(e) COMPLIANCE WITH FEDERAL AND STATE SECURITIES LAWS. The
Purchaser understands that the Securities being offered and sold hereunder have
not been registered under the Securities Act. The Purchaser understands that the
Securities being offered and sold hereunder must be held indefinitely unless the
sale or other transfer thereof is subsequently registered under the Securities
Act or an exemption from such registration is available. Moreover, the Purchaser
understands that its right to transfer the Securities being purchased hereunder
will be subject to certain restrictions, which include restrictions against
transfer under the Securities Act and applicable state securities laws. In
addition to such restrictions, the Purchaser realizes that it may not be able to
sell or dispose of the Securities being purchased hereunder as there may be no
public or other market for them. The Purchaser understands that certificates
evidencing the Securities being purchased hereunder shall bear a legend
substantially as follows:
The shares represented by this certificate have not been
registered under the Securities Act of 1933 or any applicable
state law. They may not be offered for sale, sold, transferred or
pledged without (1) registration under the Securities Act of 1933
and any applicable state law, or (2) an opinion (reasonably
satisfactory to the Company) of counsel that registration is not
required.
(f) AUTHORITY; ENFORCEABILITY. The Purchaser has the full right,
power, and authority to execute and deliver this Agreement and perform its
obligations hereunder.
(g) NONCONTRAVENTION. This Agreement constitutes a valid and
legally binding obligation of the Purchaser and neither the execution of this
Agreement, nor the consummation of the transactions contemplated hereby, will
constitute a violation of or default under, or conflict with, any judgment,
decree, statute or regulation of any governmental authority applicable to the
Purchaser or any contract, commitment, agreement or restriction of any kind to
which the Purchaser is a party or by which its assets are bound. The execution
and delivery of this Agreement does not, and the consummation of the
transactions described herein will not, violate applicable law, or any mortgage,
lien, agreement, indenture, lease or understanding (whether oral or written) of
any kind outstanding relative to the Purchaser.
(h) APPROVALS. No approval, authorization, consent, order or other
action of, or filing with, any person, firm or corporation or any court,
administrative agency or other governmental authority is required in connection
with the execution and delivery of this Agreement by the Purchaser or the
consummation of the transactions described herein.
(i) PLACEMENT AGENT'S COMPENSATION. The Purchaser acknowledges
that the Placement Agent, as compensation for its having assisted the Company in
the placement of the Preferred Stock hereunder, will receive (i) a fee equal to
8% of the Purchase Price of the shares of the Preferred Stock offered and sold
hereunder; (ii) reimbursement of the Placement Agent's accountable expenses up
to a maximum of $50,000; and (iii) five-year warrants to purchase 47,430 shares
of the Company's Common Stock at a price of $6.325 per share.
-3-
<PAGE>
(j) SUBSEQUENT SALES. The Purchaser acknowledges that the Company
may from time to time raise additional capital, which may include, but not be
limited to, subsequent offers and sales by the Company ("Subsequent Sales") of
additional shares of Preferred Stock (with the same or different terms), which
shares shall have in the aggregate a total purchase price of not more than
$10,000,000. Nothing herein shall prohibit the Company from offering or selling
additional shares of preferred stock in addition to the Preferred Stock,
provided, however, that such shares shall rank junior to the Preferred Stock
with respect to payment of dividends and liquidation rights, unless otherwise
consented to by the holders of the Preferred Stock as provided in the Articles
of Amendment.
(k) OUTSTANDING SERIES A AND SERIES B PREFERRED STOCK. The
Purchaser acknowledges that the Preferred Stock offered and sold hereby shall be
junior to the Company's Series A Variable Rate Convertible Preferred Stock (the
"Series A Preferred Stock") and Series B Variable Rate Convertible Preferred
Stock (the "Series B Preferred Stock") as to payment of dividends and rights
upon liquidation.
(l) CONSENTS TO AMENDMENTS TO ARTICLES OF INCORPORATION. The
Purchaser hereby consents to the filing of an amendment or amendments to the
Company's Articles of Incorporation to effect any adjustments to the Preferred
Stock contemplated by Section 7 hereof.
5. REPRESENTATIONS OF THE COMPANY. The Company acknowledges, represents
and agrees as follows:
(a) CORPORATE ORGANIZATION. The Company is duly organized, validly
existing and in good standing under the laws of the State of Florida and has
full corporate power, authority and legal right to own its properties and to
conduct the businesses in which it is now engaged. The Company is duly licensed
or qualified to transact business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or lease of its assets or the
operation of its business requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the business,
operations, property or financial or other condition of the Company (a "Material
Adverse Effect").
(b) AUTHORITY. The Company has full corporate power and authority
to execute and deliver this Agreement and to perform all of its covenants and
agreements hereunder. The execution and delivery of this Agreement by the
Company, the performance by the Company of its covenants and agreements
hereunder and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action.
(c) ENFORCEABILITY. This Agreement has been duly executed and
delivered and constitutes the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms except as
such enforceability may be limited by (i) bankruptcy, insolvency, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by the
principles governing the availability of specific performance, injunctive
-4-
<PAGE>
relief and other equitable remedies (regardless of whether such enforceability
is considered in equity or at law), including requirements of reasonableness and
good faith in the exercise of rights and remedies thereunder; (ii) applicable
laws and court decisions which may limit or render unenforceable certain terms
and provisions contained therein, but which in our opinion do not substantially
interfere with the practical realization of the benefits thereof, except for the
economic consequences of any procedural delay which may be imposed by, relate to
or result from such laws and court decisions; and (iii) the limitations on the
enforceability of the securities indemnification provisions set forth herein by
reason of matters of public policy.
(d) NONCONTRAVENTION. Neither the execution and delivery of this
Agreement by the Company, nor the consummation of the transactions contemplated
hereby, nor the performance by the Company of its covenants and agreements
hereunder (i) violates any provision of the Articles of Incorporation or By-Laws
of the Company; (ii) violates any existing law, statute, ordinance, regulation,
or any order, judgment or decree of any court or governmental agency to which
the Company is a party or by which the Company or any of its assets is bound; or
(iii) conflicts with or will result in any breach of any of the terms of or
constitute a default under or result in the termination of or the creation of
any lien pursuant to the terms of any indenture, mortgage, real property lease,
securities purchase agreement, credit or loan agreement or other material
agreement to which the Company is a party or by which the Company or any of its
assets is bound, to the extent such violation thereof, conflict therewith,
breach thereof, default thereunder or termination thereof would have a Material
Adverse Effect.
(e) CAPITALIZATION. The authorized capital stock of the Company
consists of (i) 1,000,000 shares of Preferred Stock, $.01 par value, of which
217,600 shares are designated Series A Preferred Stock, all of which are issued
and outstanding, and 142,223 shares are designated Series B Preferred Stock,
none of which are issued and outstanding; and (ii) 11,000,000 shares of Common
Stock, $.01 par value, of which 6,095,601 shares are issued and outstanding. The
holders of outstanding capital stock of the Company have no preemptive rights.
The Articles of Amendment have been approved by all requisite corporate action
of the Company.
(f) THE PREFERRED STOCK. The Preferred Stock being offered and
sold pursuant to this Agreement has been duly and validly authorized and, when
issued for the consideration herein provided, will be duly and validly issued,
fully paid and nonassessable.
(g) CONVERSION SHARES. The Conversion Shares have been duly
authorized and reserved for issuance and, when issued upon conversion of the
Preferred Stock in accordance with the terms thereof, will be duly and validly
authorized and issued, fully paid and nonassessable.
(h) APPROVALS. Except as may be required under federal and state
securities laws (which have been or, in the case of compliance required on a
post-sale basis, will be complied with), the execution, delivery and performance
of this Agreement by the Company does not require (i) the consent, waiver,
approval, license or authorization of or any filing with
-5-
<PAGE>
any person or any governmental authority; or (ii) the approval or authorization
of the shareholders of the Company. The issuance of the Preferred Stock pursuant
to this Agreement is not subject to the registration or prospectus delivery
requirements of Section 5 of the Securities Act.
(i) LEGAL PROCEEDINGS. There are no (i) actions, suits, claims,
investigations or legal or administrative or arbitration proceedings pending or,
to the best knowledge of the Company, threatened against or affecting the
Company, whether at law or in equity, or before or by any governmental
authority; (ii) judgments, decrees, injunctions or orders of any governmental
authority or arbitrator against the Company, which, in either case, could have a
Material Adverse Effect.
(j) SEC FILINGS, ETC. The Company has heretofore delivered to each
Purchaser correct and complete copies of the SEC Documents. The SEC Documents
were true and correct in all material respects at the time filed with respect to
the periods covered thereby; and such reports, as amended, supplemented, or
updated by subsequent filings, are true and correct as of the date so amended,
supplemented or updated in all material respects, do not contain any
misstatement of a material fact and do not omit to state a material fact or any
fact required to be stated therein or necessary to make the statements contained
therein not materially misleading with respect to the periods covered thereby;
and all amendments or supplements thereto required to be filed under the federal
securities laws have been so filed. The consolidated financial statements of the
Company included in the SEC Documents complied, when filed, with the
then-applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto, were prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the periods
involved (except as may have been indicated in the notes thereto or, in the case
of the unaudited statements, as permitted by Form 10-QSB promulgated by the SEC)
and fairly presented (subject in the case of the unaudited statements, to normal
audit adjustments) the financial position of the Company at the dates thereof
and the consolidated results of the operations and statement of changes in
financial position for the periods then ended. The Company has filed all
documents and agreements that were required to be filed as exhibits to the SEC
Documents and all such documents and agreements when filed were correct and
complete in all material respects.
(k) ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed in the
financial statements (the "Financial Statements") included in the SEC Documents,
or as incurred in the ordinary course of business subsequent to September 30,
1996, as of the date hereof (i) the Company has no material liability of any
nature (matured or unmatured, fixed or contingent) that was not provided for or
disclosed in the Financial Statements, and (ii) to the best knowledge of the
Company, all liability reserves established by the Company and set forth in the
Financial Statements were adequate in all material respects for the purposes
indicated therein.
(l) NO CHANGE. Except as disclosed in or contemplated by the SEC
Documents, since September 30, 1996 there has not been (i) any material change
in the condition (financial or otherwise), operations, results of operations,
assets, liabilities, business
-6-
<PAGE>
or prospects of the Company taken as a whole; (ii) any material liability or
obligation (contingent or otherwise) incurred by the Company, other than current
liabilities (or obligations) or capital leases incurred in the ordinary of
business; (iii) any asset or property of the Company made subject to a lien of
any kind, except (a) liens for taxes not yet due or which are being contested in
good faith and by appropriate proceedings provided adequate reserves with
respect thereto are maintained on the Company's books in accordance with
generally accepted principles; (b) landlords', carriers', warehousemen's,
mechanics', materialmen's, repairmen's or other like liens arising in the
ordinary course of business which are not overdue for a period of more than 60
days or which are being contested in good faith and by appropriate proceedings;
(c) pledges or deposits in connection with worker's compensation, unemployment
insurance and other social security legislation; (d) deposits to secure the
performance of contracts, bids, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature; (e) easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business; and (f) liens which, in the aggregate, are not
material in amount, and which do not in any case materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of
the Company's business; (iv) any waiver of any material valuable right of the
Company, or the cancellation of any material debt or claim held by the Company;
(v) any payment of dividends on, or other distributions with respect to, or any
direct or indirect redemption or acquisition of, any shares of the Common Stock
of the Company, or any agreement or commitment therefor; (vi) any mortgage,
pledge, sale, assignment or transfer of any tangible or intangible assets of the
Company, except, with respect to tangible assets, in the ordinary course of
business; (vii) any loan by the Company to any officer, director, employee or
shareholder of the Company, or any agreement or commitment therefor; (viii) any
material damage, destruction or loss (whether or not covered by insurance) which
does or may adversely affect the condition (financial or otherwise), operations,
results of assets, property, business or prospects of the Company; or (ix) any
change in the accounting methods or practices followed by the Company.
(m) TAXES. The Company has accurately prepared and timely filed or
has had accurately prepared and timely filed on its behalf all tax returns
which, to the knowledge of the Company, are required to be filed by it, and has
paid all taxes shown to be due and payable on said returns or on any assessments
made against it or any of its property and all other taxes, fees or other
charges imposed on it or any of its property by any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government (other than those the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with generally accepted accounting
principles have been provided on the books of the Company); and except as set
forth on a Schedule hereto, no tax liens have been filed and, to the knowledge
of the Company, no claims are being asserted with respect to any such taxes,
fees or other charges.
(n) RELATED PARTY TRANSACTIONS. Except to the extent described in
the SEC Documents, no current principal shareholder or current or former
director, officer or employee of the Company nor any "affiliate" (as defined in
the rules and regulations promulgated under
-7-
<PAGE>
the Securities Exchange Act of 1934, as amended (the "Exchange Act")), of any
such person, is currently, or since September 30, 1996 has been, directly or
indirectly through his affiliation with any other person or entity, a party to
any transaction (other than as an employee, consultant or shareholder) with the
Company providing for the furnishing of services by, or rental of real or
personal property from, or otherwise requiring cash payments from or to any such
person.
(o) DISCLOSURE. The representations or warranties made by the
Company in this Agreement or, except to the extent modified or amended by
subsequent written disclosure to each of the Purchasers through the date hereof,
in any other document or certificate furnished in connection herewith did not
contain at the time made or, if set forth herein, does not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements herein or therein, in light of the circumstances under which
they are made, not misleading in any material respect. There is no fact known to
the Company that materially adversely affects or, other than general economic
conditions in the industry in which the Company operates, that the Company
reasonably believes will in the future materially adversely affect the business,
operations, affairs or condition, financial or otherwise, of the Company, which
has not been set forth in this Agreement or in the SEC Documents.
6. REGISTRATION RIGHTS.
(a) FILING OF REGISTRATION STATEMENT. The Company shall file with
the SEC and use its best efforts to cause to be declared effective on or before
May 1, 1997 a registration statement on Form S-3 (the "Registration Statement")
covering the Conversion Shares.
(b) OBLIGATIONS OF THE COMPANY. In connection with the filing of
the Registration Statement, the Company shall
(i) Prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and
the prospectus used in connection with the Registration Statement and take such
other reasonable action as may be necessary to keep the Registration Statement
effective until the earlier of the (A) public sale of the Conversion Shares or
(B) the Conversion Shares becoming capable of full and complete public sale
without registration under the Securities Act and to comply with the provisions
of the Securities Act and the Exchange Act, and the rules and regulations
thereunder, with respect to the disposition of the Conversion Shares;
(ii) Notify the Purchaser, after becoming aware thereof, (A)
when the Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been filed
and, with respect to the Registration Statement or any post-effective amendment,
when the same has become effective or (B) of any request by the SEC for
amendment of or supplement to the Registration Statement or related prospectus
or for additional information;
-8-
<PAGE>
(iii) Furnish promptly to the Purchaser such reasonable number
of copies of a prospectus, and all amendments and supplements thereto, in
conformity with the requirements of the Securities Act, and such other documents
as the Purchaser may reasonably request in order to facilitate their disposition
of any Conversion Shares;
(iv) Use its best efforts to register and qualify the
Conversion Shares under the securities or Blue Sky laws of such states as shall
be reasonably requested by the Purchaser, and prepare and file in those states
such amendments (including post-effective amendments) and supplements and to
take such other actions as may be necessary to maintain such registration and
qualification in effect at all times during the period the Company is required
to maintain the Registration Statement effective, and to take all other actions
necessary or advisable to enable the disposition of such securities in such
states, provided that the Company shall not be required in connection therewith
or as a condition thereto to subject itself to taxation, to qualify to do
business or to file a general consent to service of process in any such states;
and
(v) Notify the Purchaser, at any time when a prospectus
relating to the Conversion Shares is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits 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. The
Company shall promptly amend or supplement the Registration Statement to correct
any such untrue statement or omission, and provide the Purchaser with an amended
or supplemented prospectus with respect to the Conversion Shares that corrects
such untrue statement or omission.
(c) THE PURCHASER'S OBLIGATIONS. It shall be a condition precedent
to the obligations of the Company to the Purchaser to take any action pursuant
to this Section that the Purchaser shall furnish to the Company such information
regarding the Purchaser, the Conversion Shares and other shares of the Company's
Common Stock held by the Purchaser and the intended method of disposition of
such securities as shall be reasonably required to effect the registration of
the Conversion Shares and shall execute such documents in connection with such
registration as the Company may reasonably request.
(d) EXPENSES OF REGISTRATION. All expenses incurred by the Company
in complying with this section, including, without limitation, registration and
filing fees, fees and expenses of complying with state securities and Blue Sky
laws, printing expenses, and fees and disbursements of the Company's counsel and
accountants, shall be paid by the Company; provided, however, that all fees and
expenses of counsel to the Purchaser and all selling commissions applicable to
the disposition of the Conversion Shares shall not be borne by the Company but
shall be borne by the Purchaser.
-9-
<PAGE>
(e) INDEMNIFICATION.
(i) the Company will indemnify and hold harmless the
Purchaser, the directors and officers of the Purchaser, if any, and each person,
if any, who controls the Purchaser within the meaning of the Securities Act or
the Exchange Act (each a "Purchaser Indemnified Party" and collectively, the
"Purchaser Indemnified Parties"), against any losses, claims, damages, expenses
or liabilities (joint or several) to which any of them may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, expenses or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively, a
"Violation"): (A) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (B) the omission or alleged omission to state therein
information required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they are made, not misleading
or (C) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act or any state securities or Blue Sky law; and the Company will
reimburse each Purchaser Indemnified Party, promptly as such expenses are
incurred, for any legal or other expenses reasonably incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the indemnity agreement
contained in this section shall not apply to amounts paid in settlement of any
such loss, claim, damage, expense, liability, action or proceeding if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld, nor shall the Company be liable in any such case
for any such loss, claim, damage, expense, liability, action or proceeding to
the extend that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in the Registration Statement by the Purchaser.
(ii) The Purchaser will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act (collectively, the
"Company Indemnified Parties") against any losses, claims, damages, expenses or
liabilities (joint or several) to which any of them may become subject, under
the Securities Act, the Exchange Act or other federal or state law, insofar as
such losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon: (A) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto and (B) the omission or alleged omission
to state therein information required to be stated therein, or necessary to make
the statements therein not misleading, in each case to the extent (and only to
the extent) that such losses, claims, damages, expenses or liabilities are
caused by statements made in the Registration Statement in reliance upon and in
strict conformity with written information furnished by such Purchaser expressly
for use therein; and the Purchaser will reimburse any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage,
-10-
<PAGE>
liability, action or proceeding; provided, however, that the indemnity agreement
contained in this section shall not apply to amounts paid in settlement or any
such loss, claim, damage, expense, liability, action or proceeding if such
settlement is effected without the consent of the Purchaser, which consent shall
not be unreasonably withheld.
(iii) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action (including any
governmental action), such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under this section, deliver
to the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the extend the
indemnifying party so desires to assume control of the defense thereof with
counsel mutually satisfactory to the indemnifying and indemnified parties;
provided, however, that an indemnified party shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying party,
if, in the reasonable opinion of counsel for the indemnified party,
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability to the indemnified
party under this section only to the extent prejudicial to its ability to defend
such action, but the omission so to deliver written notice to the indemnifying
party shall not relieve it of any liability that is may have to any indemnified
party otherwise than under this section. The indemnification required by this
section shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, promptly as such expense, loss, damage
or liability is incurred.
(iv) To the extent any indemnification by an indemnifying
party is prohibited or limited by law, or is otherwise unavailable to or
insufficient to hold harmless an indemnified party, the indemnifying party
agrees to make the maximum contribution with respect to any amounts for which it
would otherwise be liable under this section, provided that no parson guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(f) REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the Purchaser the benefits of Rule 144 ("Rule 144") under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit the Purchaser to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144;
(ii) file with the SEC in a timely manner all reports and
other documents required of the Company under the Exchange Act; and
-11-
<PAGE>
(iii) furnish to the Purchaser, so long as the Purchaser owns
any Conversion Shares, forthwith upon request (A) a written statement by the
Company that it has complied with the reporting requirements of Rule 144; (B) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company; and (C) such other publicly
available information as may be reasonably requested in availing the Purchaser
of any rule or regulation of the SEC which permits the selling of any such
securities without registration.
(g) ASSIGNMENT OF REGISTRATION RIGHTS. Rights under this Agreement
may be assigned by the Purchaser to transferees or assignees of the Purchaser's
Conversion Shares; provided, however, that the Company is, within a reasonable
time after such transfer or assignment, furnished with notice of the name and
address of such transferee or assignee and the Conversion Shares with respect to
which such registration rights are being assigned; provided, further, that such
assignment effectively only if, immediately following such transfer or
assignment, the further disposition of the Conversion Shares by the transferee
or assignee is restricted under the Securities Act. The term "Purchaser" used in
this Agreement includes permitted assignees of rights under this Agreement in
accordance with this Section.
7. COVENANTS OF THE COMPANY. So long as at least 25% of the shares of
Preferred Stock sold hereunder or in Subsequent Sales are outstanding, the
Company shall:
(a) REPORTS AND INFORMATION.
(i) Furnish to the Purchaser, promptly after filing with the
SEC, copies of each Quarterly Report on Form 10-QSB or Form 10-Q, Annual Report
on Form 10-KSB or Form 10-K and Current Report on Form 8-K filed by the Company
with the SEC; and
(ii) Furnish to the Purchaser, promptly after mailing to
shareholders, copies of each Annual or Quarterly Report to the Company's
shareholders and proxy or information statement relating to a meeting of the
Company's shareholders.
(b) USE OF PROCEEDS COMPLIANCE. On or before each April 15, July
15, October 30 and January 15, commencing April 15, 1997, the Company shall
deliver to the Purchaser a certificate executed by the Company's Chief Executive
and Chief Operating Officers, certifying as to the Company's compliance during
the immediately proceeding calendar quarter with use of proceeds provisions set
forth in Section 2 hereof. Such obligation shall cease upon the delivery to the
Purchaser of a certificate executed by the Company's Chief Executive and Chief
Operating Officers certifying that the entire net proceeds from the sale of the
shares of Preferred Stock hereby has been applied in accordance with the
provisions set forth in Section 2 hereof.
(c) CORPORATE EXISTENCE. Preserve and keep in full force and
effect its corporate existence, its qualification to do business and its good
standing in every state where it is or is required to be qualified to do
business, except where the failure to be so qualified
-12-
<PAGE>
would not have a Material Adverse Effect; provided that nothing herein shall
prevent the Company or any subsidiary of the Company from changing their state
of incorporation.
(d) LICENSES, PERMITS AND FRANCHISES. Maintain, preserve and
protect at all times all of its corporate and operational licenses, permits and
franchises, and comply with each and all of the terms, conditions and
requirements of such licenses, permits and franchises, except to the extent
management of the Company determines it is not in the best interest of the
Company to do so.
(e) PROPERTIES. Preserve all of its assets and properties that are
used in the conduct of its business and maintain and keep these assets and
properties in good repair, working order and condition, and from time to time
make or cause to be made all needed and proper repairs, renewals, replacements,
betterments and improvements to these assets and properties to preserve and
maintain their value, normal wear and tear excepted, so that the business
carried on in connection with these assets and properties may be properly
conducted at all times, except to the extent management of the Company
determines it is not in the best interest of the Company to do so.
(f) INSURANCE. Maintain (i) "all-risk" insurance at all times on
all properties (real and personal) in such amounts as are usually carried by
companies engaged in similar businesses; and (ii) insurance against liability to
persons for such risks and hazards and in such amounts as are usually carried by
companies engaged in similar businesses.
(g) BOOKS AND RECORDS. Keep at all times complete books of record
and accounts, in conformity with generally accepted accounting principles as
revised from time to time, with full, true and correct entries of all dealings
and transactions in relation to the Company's business and affairs, and
reasonably protect such books and accounts against loss or damage.
(h) PAYMENT OF TAXES. Timely file or cause to be filed any and all
federal, state and local tax returns and reports and timely pay and discharge
any and all taxes and assessments, and any and all federal, state and local
governmental impositions, fees, charges and/or levies, including but not limited
to, any income taxes, municipal taxes, real estate and personal property taxes,
social security, unemployment, excise and withholding taxes, and the like
imposed upon the Company, its operations, or upon its income and profits, or
upon all or any part of its properties, real, personal or mixed, or upon its
payroll, in each case before the same becomes delinquent and before penalties
accrue thereon.
(i) STATUTORY COMPLIANCE. At all times, conduct its business in
accordance with, and comply in all material respects with, all applicable
statutes, regulations, judgments, decrees, resolutions and orders of, and all
applicable restrictions imposed by, any and all governmental entities and/or
authorities, federal, state, local and non-U.S., judicial or administrative,
applicable to the conduct of the Company's businesses and activities (including
environmental and other regulatory requirements) or the ownership or operation
of its properties,
-13-
<PAGE>
licenses, permits and/or franchises, particularly those pertaining to the
business it currently operates.
(j) CONTRACTUAL COMPLIANCE. Pay and discharge all of the Company's
indebtedness and obligations promptly and in accordance with their terms and
substantially comply with the terms and conditions of any indentures,
agreements, contracts or other instruments to which it is party or which may
affect its assets or properties or enter into mutually satisfactory agreements
with the other parties to such documents and instruments; provider, however,
that nothing herein shall prevent the Company from withholding payment or
otherwise failing to comply with any agreement, if its management determines it
to be in the best interest of the Company to do so and if such action will not
result in any Material Adverse Effect.
(k) CONDUCT OF BUSINESS. Carry on its business and activities
diligently and consistent with prudent business practice for a company of the
size and character of the Company and will use its best efforts to preserve its
present relationship with suppliers, customers and others having business
relationships with it, except to the extent that management of the Company
determines it is not in the best interest of the Company to do so.
(l) DIVIDENDS. Without the consent of holders of a majority of the
outstanding Preferred Stock sold hereunder or in Subsequent Sales, the Company
shall not:
(i) Declare or pay any dividend (except for dividends paid in
respect of the Company's preferred stock) or make any other distributions on
shares of capital stock, other than (A) regular quarterly cash dividends on
Common Stock, provided that at the times such cash dividends are declared and
paid, Company is not in default with respect to payment of cash dividends on the
Preferred Stock or (B) dividends payable solely in shares of Common Stock; or
(ii) Repurchase any shares of Common Stock.
(m) ADJUSTMENTS BASED ON SUBSEQUENT SALES. In the event that the
Company subsequent to the date of this Agreement sells any or all of the
authorized but unissued Preferred Stock, the Company shall give the Purchaser
written notice of the closing of each such sale, together with a summary of the
material sale terms, not later than two business days following such closing
(such notice and summary of terms is referred to herein as a "Notice of
Subsequent Sale"). The Purchaser each shall have the right, by written notice to
the Company given not less than five calendar days following receipt of the
Notice of Subsequent Sale, to compel the Company to amend this Agreement and/or
the Articles of Amendment to incorporate those covenants, terms and/or
conditions described in the Notice of Subsequent Sale reasonably deemed more
favorable by the Purchaser than those contained in this Agreement and/or the
Articles of Amendment.
-14-
<PAGE>
8. NOTICES. All notices, reports and other communications to the
Purchaser of the Company hereunder shall be in writing, shall refer specifically
to this Agreement and shall be hand delivered or sent by facsimile transmission
or by registered mail or certified mail, return receipt requested, postage
prepaid, in each case to the respective persons and addresses specified below
(or to such other persons or addresses as may be specified in writing to the
other party):
If to the Purchaser, to: The address as set forth on
Schedule I hereto
With a copy to: Keane Securities Co., Inc.
50 Broadway
New York, New York 10004
Attn: Mr. Walter O'Hearn
Fax No: (212) 509-6613
If to the Company, to: Big Entertainment, Inc.
2255 Glades Road
Suite 237W
Boca Raton, Florida 33431
Attn: Mr. Mitchell Rubenstein
Chief Executive Officer
Fax No.: (561) 998-8006
With a copy to: Broad and Cassel
Miami Center, Suite 3000
201 South Biscayne Boulevard
Miami, Florida 33131
Attn: Dale S. Bergman, P.A.
Fax No.: (305) 373-9443
Any notice or communication given in conformity with this Section shall
be deemed to be effective when received by the addressee if delivered by hand or
overnight courier or by facsimile (with confirmed receipt), and three days after
mailing, if mailed.
9. NO IMPLIED WAIVERS; RIGHTS CUMULATIVE. No failure on the part of the
Purchaser or the Company to exercise and no delay in exercising any right,
power, remedy or privilege under this Agreement or provided by statute or at law
or in equity or otherwise, including, without limitation, the right or power to
terminate this Agreement, shall impair, prejudice or constitute a waiver of any
such right, power, remedy or privilege or be construed as a waiver of any breach
of this Agreement or as an acquiescence therein, nor shall any single or partial
exercise of any such right, power, remedy or privilege preclude any other or
further exercise thereof or the exercise of any other right, power, remedy or
privilege.
10. AMENDMENTS. No amendment, modification, waiver, termination or
discharge of any provision of this Agreement, nor consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
specifically identifying this Agreement and the provision(s) intended to be
amended, modified, waived, terminated or discharged and signed by
-15-
<PAGE>
the Purchaser and the Company, and each amendment, modification, waiver,
termination or discharge shall be effective only in the specific instance and
for the specific purpose for which given. No provision of this Agreement shall
be varied, contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by the Purchasers and the Company.
11. INDEMNIFICATION BY THE COMPANY. The Company hereby agrees to
indemnify and hold the Purchaser and its affiliates, directors, officers,
employees and agents (collectively, the "Purchaser Indemnitees") harmless from,
and to reimburse each of the Purchaser Indemnitees for, on an after-tax basis,
any loss, damage, deficiency, claim, liability, obligation, suit, action, fee,
cost or expense of any nature whatsoever (including, but not limited to,
reasonable attorney's fees and costs) arising out of, based upon or resulting
from (a) any inaccuracy in or any breach of any representation or warranty of
the Company contained in this Agreement, certificate or other written instrument
or document delivered by the Company pursuant hereto or (b) any breach of any of
the covenants, agreements or undertakings of the Company contained in or made
pursuant to this Agreement.
12. INDEMNIFICATION BY THE PURCHASER. The Purchaser hereby agrees to
indemnify and hold the Company and its subsidiaries, affiliates, directors,
officers, employees and agents (collectively, "the Company Indemnitees")
harmless from, and to reimburse each of the Company Indemnitees for, on an
after-tax basis, any loss, damage, deficiency, claim, liability, obligation,
suit, action, fee, cost or expense of any nature whatsoever (including, but not
limited to, reasonable attorney's fees and costs) arising out of, based upon or
resulting from (i) any inaccuracy in or any breach of any representation or
warranty of the Purchaser contained in this Agreement, certificate or other
written instrument or document delivered by the Purchaser pursuant hereto or
(ii) any breach of any of the covenants, agreements or undertakings of the
Purchaser contained in or made pursuant to this Agreement.
13. INTEGRATION. This Agreement, including the Schedule hereto,
represents the entire understanding and agreement of the parties with respect to
the subject matter hereof. No other representations, statements or warranties
have been made, other than what is written herein.
14. ATTORNEYS' FEES. Except as otherwise set forth herein, all costs
and expenses, including reasonable attorneys' fees, incurred in the enforcement
of this Agreement, shall be paid to the prevailing party by the non-prevailing
party, upon demand.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which may be considered one and the same agreement and each
of which shall be deemed an original.
16. GOVERNING LAW. This Agreement shall be enforced, governed and
construed in all respects in accordance with the internal laws, and not the laws
pertaining to conflicts or choice of laws, of the State of Florida.
-16-
<PAGE>
IN WITNESS WHEREOF, the parties hereto, through their duly authorized
officers, have executed this Agreement as of the date first written above.
THE COMPANY:
BIG ENTERTAINMENT, INC.
By: /s/ MITCHELL RUBENSTEIN
------------------------------
Name: Mitchell Rubenstein
Title: Chief Executive Officer
PURCHASER:
AURIC PARTNERS LIMITED
By:
-------------------
Name:
Title:
-17-
<PAGE>
SCHEDULE I
THE PURCHASER
NAME AND ADDRESS NUMBER OF SHARES PURCHASED
------------------------- --------------------------
Auric Partners Limited 20,000
7575 East Fulton Road
Ada, MI 49355
EIN 382-74-1160