Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2/A Pre-Effective Amendment to Registration of 142 740K
Securities by a Small-Business Issuer
2: EX-1 Underwriting Agreement 54 225K
3: EX-4.2 Instrument Defining the Rights of Security Holders 31 107K
4: EX-4.3 Instrument Defining the Rights of Security Holders 38 141K
5: EX-4.4 Instrument Defining the Rights of Security Holders 9 46K
6: EX-5 Opinion re: Legality 3 14K
7: EX-9.1 Voting Trust Agreement 6 27K
8: EX-9.2 Voting Trust Agreement 1 10K
9: EX-9.3 Voting Trust Agreement 1 10K
10: EX-9.4 Voting Trust Agreement 1 10K
11: EX-10.1 Material Contract 17 57K
12: EX-10.2 Material Contract 16 57K
13: EX-10.3 Material Contract 13 47K
14: EX-10.35 Material Contract 12 55K
15: EX-10.36 Material Contract 12 55K
16: EX-10.37 Material Contract 12 55K
17: EX-10.38 Material Contract 11 45K
18: EX-10.39 Material Contract 10 40K
19: EX-10.40 Material Contract 1 10K
20: EX-10.41 Material Contract 23 81K
21: EX-10.42 Material Contract 6 22K
22: EX-10.43 Material Contract 5 23K
23: EX-10.44 Material Contract 6 25K
24: EX-10.45 Material Contract 7 30K
25: EX-10.46 Material Contract 2 11K
26: EX-23.1 Consent of Experts or Counsel 1 8K
EX-4.4 — Instrument Defining the Rights of Security Holders
Exhibit Table of Contents
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH WARRANT AND SHARES MAY NOT BE
SOLD, OFFERED FOR SALE, TRANSFERRED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER SAID ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
SOUND SOURCE INTERACTIVE, INC. (DE)
SOUND SOURCE INTERACTIVE, INC. (CA)
WARRANT
DATED: April 30, 1996
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Holder: ASSI, Inc., a Nevada corporation
Number of Warrants: 2,000,000
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THIS CERTIFIES THAT Holder is the owner of the number of Warrants
set forth above of Sound Source Interactive, Inc., a Delaware corporation
(hereinafter called the "Company"), and, under the circumstances herein
described, of Sound Source Interactive, Inc., a California corporation
(hereinafter called the "Subsidiary") which is a wholly owned subsidiary of the
Company. Each Warrant entitles the registered holder (the "Holder") to purchase
one share of Common Stock of the Company ("Company Common Stock"), or, under the
circumstances herein described, one share of the Common Stock of the Subsidiary
("Subsidiary Common Stock"). The Company Common Stock and Subsidiary Common
Stock are herein sometimes generally referred to collectively as the "Common
Stock" and are referred to as "Warrant Shares" with reference to the specific
shares of Common Stock issued upon exercise of the Warrants. This Warrant is
issued in connection with certain consulting services rendered to the Company by
Holder.
The term "Public Offering" means an offering of securities by the
Company or the Subsidiary which is registered under the Securities Act of 1933,
as amended (the "Securities Act") (other than in connection with a merger,
acquisition or exchange offer or pursuant to Form S-8 or successor form).
1. WARRANT TO PURCHASE COMPANY COMMON STOCK OR SUBSIDIARY
COMMON STOCK. This Warrant initially shall constitute a Warrant to purchase
Company Common Stock. If the Company consummates an initial Public Offering by
December 31, 1996 and prior to the consummation of a Public Offering by the
Subsidiary, then this Warrant shall remain a Warrant to purchase Company Common
Stock for the remainder of its term. If, however, the Company has not
consummated a Public Offering by December 31,
1996, or if the Subsidiary consummates a Public Offering prior to such date,
then this Warrant shall also become a Warrant to purchase Subsidiary Common
Stock.
Each Warrant evidenced by this Certificate shall constitute a
Warrant to purchase one share of Company Common Stock at an exercise price per
share equal to $4.40 per share, subject to adjustment as set forth herein.
If this Warrant also becomes a Warrant to purchase shares of
Subsidiary Common Stock as provided in the first paragraph of this Paragraph 1,
each Warrant evidenced by this Certificate shall also constitute a Warrant to
purchase one share of Subsidiary Common Stock at an exercise price of $4.40 per
share.
2. CONVERSION TO PUBLIC WARRANTS. Upon consummation of a
Public Offering by the Company or the Subsidiary, as the case may be, prior to
December 31, 1996, in the event that the Public Offering includes warrants to
purchase shares of Common Stock (the "Public Warrants"), this Warrant
automatically shall be converted into an equivalent number of Public Warrants
with an exercise price and other terms identical to those ultimately issued in
the Public Offering; provided, however, that, for so long as the above-named
Holder or an Affiliate is the record owner of this Warrant (or the Public
Warrant into which this Warrant converts), (i) any provisions of the Public
Warrants granting the Company the right to call the Public Warrants for
redemption shall not apply to the Public Warrants issued as a result of
conversion of this Warrant, (ii) the registration rights described in Section 6
of this Warrant shall remain in effect with respect to the Public Warrants
issued as a result of conversion of this Warrant, and (iii) those Public
Warrants shall be exercisable at any time on or after September 1, 1996. For
purposes of this Section 2, the term "Affiliate" means ASSI, Inc., a Nevada
corporation ("ASSI"), or any person or entity controlling, controlled by or
under common control with ASSI. For purposes hereof, a person shall be deemed
to have "control" of an entity if such person is the owner of a majority voting
interest in such entity.
3. RIGHT TO EXERCISE WARRANTS. Unless this Warrant has been
converted into a Public Warrant as provided in Paragraph 2, the rights
represented by this Warrant may be exercised during the period commencing on
September 1, 1996 (the "Exercise Date"), and terminating at 2:00 p.m., Pacific
Standard Time, five (5) years after the Exercise Date. If this Warrant is
converted into a Public Warrant as provided in Paragraph 2, the rights to
exercise such Public Warrant shall be as described therein.
Notwithstanding the foregoing, in the event of a complete
liquidation of the Company (or the Subsidiary, as applicable), or a merger,
reorganization, consolidation of the Company with any other corporation in which
the Company is not the surviving corporation or the Company becomes a wholly-
owned subsidiary of another corporation, or the Company sells all or
substantially all of its assets (each such event referred to herein as a
"Corporate Event"), this Warrant shall become exercisable in full during the
thirty (30) day period ending on the fifth day prior to such Corporate Event.
The Company shall provide written notice of the proposed Corporate Event to all
Holders of Warrants thirty-five (35) days prior to the occurrence of any such
Corporate Event, describing all material terms of the proposed Corporate Event
and providing the opportunity to all Holders to review all relevant documents in
connection with the Corporate Event.
4. EXERCISE OF WARRANTS. Subject to Paragraph 3 and the other
provisions of this Warrant, the rights represented by this Warrant may be
exercised by (i) surrender of this Warrant (with the purchase form at the end
hereof properly executed) at the principal executive office of the Company or
the Subsidiary, as applicable (or such other office or agency of the Company or
the Subsidiary, as applicable, as it may designate by notice in writing to
Holder at the address of Holder appearing on the books of the Company or the
Subsidiary, as applicable); (ii) payment to the Company or the Subsidiary, as
applicable, of the exercise price for the number of shares specified in the
above-mentioned purchase form together with applicable stock transfer taxes, if
any; and (iii) delivery to the Company or the Subsidiary, as applicable, of a
statement by Holder (in a form acceptable to the Company or the Subsidiary, as
applicable, and its counsel) that such shares are being acquired by Holder for
investment and not with a view to their distribution or resale. This Warrant
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shall be deemed to have been exercised immediately prior to the close of
business on the date the Warrant is surrendered and payment is made in
accordance with the foregoing provisions of this Paragraph 4, and the person or
persons in whose name or names the certificates for shares of Common Stock shall
be issuable upon such exercise shall become the holder or holders of record of
such Common Stock at that time and date. The certificates for the Common Stock
so purchased shall be delivered to Holder within a reasonable time, not
exceeding ten (10) business days, after the rights represented by this Warrant
shall have been so exercised, and shall bear a legend substantially similar to
the following restrictive legend:
"This security has not been registered under the Securities Act
of 1933 and may not be sold or offered for sale unless registered
under said Act and any applicable state securities laws or unless
the Company has received an opinion of counsel satisfactory to
the Company that such registration is not required."
The Boston Group, L.P. shall be the exclusive solicitation agent
for exercise of this Warrant. At any time upon the exercise of this Warrant,
the Company shall, within two business days after any such exercise, notify The
Boston Group, L.P. of the exercise of the Warrant and shall, not later than five
business days after the last day of the calendar week in which such funds were
tendered, remit to The Boston Group, L.P. or its successors or assigns an amount
equal to five percent (5%) of the purchase price of the Warrant being then
exercised unless The Boston Group, L.P. shall have notified the Company that the
payment of such amount with respect to the Warrant is violative of the rules and
regulations promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD") or applicable state securities or "blue
sky" laws.
5. ASSIGNMENT. This Warrant may be transferred, sold, assigned
or hypothecated, only pursuant to a valid and effective registration statement
or if the Company or the Subsidiary, as applicable, has received from counsel to
the Company (or from counsel to the Holder that is reasonably acceptable to the
Company) a written opinion to the effect that registration of the Warrant or the
Common Stock underlying the Warrant is not necessary in connection with such
transfer, sale, assignment or hypothecation. Any such assignment shall be
effected by Holder by (i) executing the form of assignment at the end hereof;
(ii) surrendering the Warrant for cancellation at the office or agency of the
Company or the Subsidiary, as applicable, referred to in Paragraph 4 hereof,
accompanied by the opinion of counsel referred to above; and (iii) delivery to
the Company or the Subsidiary, as applicable, of a statement by the transferee
Holder (in a form acceptable to the Company or the Subsidiary, as applicable,
and its counsel) that such Warrant is being acquired by such Holder for
investment and not with a view to its distribution or resale; whereupon the
Company or the Subsidiary, as applicable, shall issue, in the name or names
specified by Holder (including Holder), new Warrants representing in the
aggregate rights to purchase the same number of Shares as are purchasable under
the Warrant surrendered. The term "Holder" shall be deemed to include any
person to whom this Warrant is transferred in accordance with the terms herein.
6. REGISTRATION RIGHTS.
a. DEMAND REGISTRATION. At any time during the period
commencing on the earlier of (i) the day following the closing date of the
Public Offering, or (ii) September 1, 1996, and expiring five (5) years
thereafter, the holder(s) of Warrants and/or Warrant Shares (the "Holders")
representing a Majority of such securities shall have the right (which right is
in addition to the registration rights under Paragraph 6.b hereof), exercisable
by written notice to the Company or the Subsidiary, as applicable, to have the
Company or the Subsidiary, as applicable, prepare, file and use its best efforts
to have declared effective by the Securities and Exchange Commission (the
"Commission"), on one occasion, a registration statement and such other
documents, including a prospectus, as may be necessary in the opinion of both
counsel for the Company or the Subsidiary, as applicable, and counsel for the
Holder(s), if any, in order to comply with the provisions of the Securities Act,
so as to permit a public offering and sale of their respective Warrants and
Warrant Shares for twenty-four (24) consecutive months by such Holder(s) and any
other Holder(s) of the
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Warrants and/or Warrant Shares who notify the Company or the Subsidiary, as
applicable, within ten (10) days after receiving notice from the Company or the
Subsidiary, as applicable, of such request.
The Company and the Subsidiary, as applicable, covenant and
agree to give written notice of any registration request under this Paragraph
6.a by any Holder or Holders to all other registered Holders of the Warrants
and/or Warrant Shares within ten (10) days from the date of the receipt of any
such registration request.
b. PIGGYBACK REGISTRATION. If at any time commencing on
the date of this Warrant, the Company or the Subsidiary, as applicable, proposes
to register any of its securities under the Securities Act (other than in
connection with a merger, acquisition or exchange offer, pursuant to Form S-8 or
successor form or otherwise on a form which does not permit registration of the
Warrants or Warrant Shares) it will give written notice by registered mail, at
least twenty (20) days prior to the filing of each such registration statement,
to the Holder(s) of the Warrants and/or Warrant Shares of its intention to do
so. Upon the written request of any Holder of the Warrants and/or Warrant
Shares given within ten (10) days after receipt of any such notice of its or
their desire to include any such Warrants and/or Warrant Shares in such proposed
registration statement, the Company or the Subsidiary, as applicable, shall
afford such Holder(s) of the Warrants and/or Warrant Shares the opportunity to
have any such Warrants and/or Warrant Shares registered under such registration
statement. The "piggy-back" registration rights described in this Paragraph 6.b
shall terminate at such time as the Warrants and/or Warrant Shares are saleable
in one or more transactions pursuant to Rule 144 of the Securities Act during a
90-day period.
Notwithstanding anything to the contrary contained in the
provisions of this Paragraph 6.b, the Company or the Subsidiary, as applicable,
shall have the right at any time after it shall have given written notice
pursuant to this Paragraph 6.b (irrespective of whether a written request for
inclusion of any such securities shall have been made) to elect not to file any
such proposed registration statement, or to withdraw the same after the filing
but prior to the effective date hereof. Any sales of Warrant Shares pursuant to
such registration statement shall be effected through the underwriter of the
Public Offering, if any, and the holders thereof shall compensate the
underwriter in accordance with its customary compensation practices.
c. INDEMNIFICATION. The Company and Subsidiary shall
indemnify and hold harmless the Holder from and against any and all losses,
claims, damages and liabilities caused by any untrue statement of a material
fact contained in any registration statement filed by the Company or Subsidiary
under the Act by reason of this Agreement, any post-effective amendment to such
registration statements, or any prospectus included therein, or caused by any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission based upon information furnished or required to be furnished in
writing to the Company or Subsidiary by the Holder (or the authorized
representatives or agents of the Holder) expressly for use therein, which
indemnification shall include each person, if any, who controls the Holder
within the meaning of the Act and each officer, director, employee and agent of
the Holder; provided, however, that the indemnification in this Paragraph 6.c
with respect to any prospectus shall not inure to the benefit of the Holder (or
to the benefit of any person controlling the Holder) on account of any such
loss, claim, damage or liability arising from the sale of Warrants or Warrant
Shares by the Holder, if a copy of a subsequent prospectus correcting the untrue
statement or omission in such earlier prospectus was provided to the Holder by
the Company or Subsidiary prior to the subject sale and the subsequent
prospectus was not delivered or sent by the Holder to the purchaser of such
securities prior to such sale; and provided further, that the Company or
Subsidiary shall not be obligated to so indemnify the Holder or any other person
referred to above unless the purchaser or other person, as the case may be,
shall at the same time indemnify the Company or Subsidiary, as applicable, its
directors, each officer signing the Registration Statement and each person, if
any, who controls the Company or Subsidiary, as applicable, within the meaning
of the Act, from and against any and all losses, claims, damages and liabilities
caused by any untrue statement of a material fact contained in any registration
statement or any prospectus required to be filed or furnished by
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reason of this Agreement or caused by any omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission based upon information furnished in
writing to the Company or Subsidiary by the Holder expressly for use therein.
If for any reason the indemnification provided for in the
preceding subparagraph is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, claim, damage,
liability or expense referred to therein, then the indemnifying party, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnified party and the indemnifying party,
but also the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations.
d. EXPENSES OF REGISTRATION; PROSPECTUS DELIVERY. All
expenses, filing fees and other costs incurred by the Company or Subsidiary in
connection with any registration of securities pursuant to this Paragraph 6
(exclusive of underwriting discounts and selling commissions applicable to any
sale of registered securities) shall be borne by the Company or Subsidiary, as
applicable.
In the case of each registration effected by the Company or
Subsidiary pursuant to this Paragraph 6, the Company or Subsidiary, as
applicable, will (i) furnish to the holders of the registered securities such
numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as such
holders may reasonably request in order to facilitate the disposition of the
registered securities owned by them, and (ii) notify each holder of registered
securities covered by such registration statement at any time when a prospectus
relating thereto is required to be delivered under the Act of the happening of
any event as a result of which the prospectus included in such 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 not misleading in the light of the circumstances
then existing.
e. MAJORITY. For purposes of this Warrant, the term
"Majority" in reference to the Holders of Warrants and/or Warrant Shares, shall
mean in excess of fifty percent (50%) of the then outstanding Warrants and/or
Warrant Shares that (i) are not held by the Company or the Subsidiary, as
applicable, by any affiliate, officer, creditor, employee or agent thereof or by
any of their respective affiliates, members of their family, persons acting as
nominees or in conjunction therewith or (ii) have not been resold to the public
pursuant to a registration statement filed with the Commission under the
Securities Act.
7. COMMON STOCK. The Company and the Subsidiary covenant and
agree that all shares of Common Stock which may be issued upon exercise hereof
will, upon issuance, be duly and validly issued, fully paid and non-assessable
and no personal liability will attach to the holder thereof. The Company and
the Subsidiary further covenant and agree that, during the periods within which
this Warrant may be exercised, the Company and the Subsidiary will at all times
have authorized and reserved a sufficient number of shares of Common Stock for
issuance upon exercise of this Warrant and all other Warrants.
8. NO STOCKHOLDER RIGHTS. This Warrant shall not entitle
Holder to any voting rights or other rights as a stockholder of the Company.
9. ADJUSTMENT OF RIGHTS. In the event that the outstanding
shares of Common Stock of the Company or the Subsidiary, as applicable, are at
any time increased or decreased or changed into or exchanged for a different
number or kind of share or other security of the Company or the Subsidiary, as
applicable, or of another corporation through reorganization, merger,
consolidation, liquidation, recapitalization, stock split, combination of shares
or stock dividends payable with respect to such Common Stock, appropriate
adjustments in the number and kind of such securities then subject to this
Warrant shall be made effective as of
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the date of such occurrence so that the position of Holder upon exercise will be
the same as it would have been had he owned immediately prior to the occurrence
of such events the Common Stock subject to this Warrant. Such adjustment shall
be made successively whenever any event listed above shall occur and the Company
or the Subsidiary, as applicable, will notify Holder of the Warrant of each such
adjustment. Any fraction of a share resulting from any adjustment shall be
eliminated and the price per share of the remaining shares subject to this
Warrant adjusted accordingly.
10. NOTICES. Unless applicable law requires a different method
of giving notice, any and all notices, demands or other communications required
or desired to be given hereunder by any party shall be in writing. Assuming
that the contents of a notice meet the requirements of the specific Paragraph of
this Warrant which mandates the giving of that notice, a notice shall be validly
given or made to another party if served either personally or if postage
prepaid, or if transmitted by telegraph, telecopy or other electronic written
transmission device or if sent by overnight courier service, and if addressed to
the applicable party as set forth below. If such notice, demand or other
communication is served personally, service shall be conclusively deemed made at
the time of such personal service. If such notice, demand or other communication
is given by mail, service shall be conclusively deemed given upon the earlier of
receipt or ninety-six (96) hours after the deposit thereof in the United States
mail, postage prepaid. If such notice, demand or other communication is given
by overnight courier, or electronic transmission, service shall be conclusively
made at the time of confirmation of delivery. The addresses for Holder and the
Company are as follows:
If to Holder: ASSI, Inc.
Two ADP Plaza
2000 Crow Canyon Place, Suite 420
San Ramon, CA 94583
Attn: President
Telecopier: (510) 277-3962
With a copy to: Hewitt & McGuire
19900 MacArthur Boulevard, Suite 1050
Irvine, CA 92715
Attn: William L. Twomey
Telecopier: (714) 798-0511
If to the Company: Sound Source Interactive, Inc.
2985 E. Hillcrest Drive, Suite A
Westlake Village, CA 91362
Attn: Vincent J. Bitetti
Telecopier: (805) 495-0016
With a copy to: McDermott, Will & Emery
1850 K Street, N.W., Suite 500
Washington, DC 20006
Attn: Robert Kalik
Telecopier: (202) 778-8087
Any party hereto may change its or his or its address for the purpose of
receiving notices, demands and other communications as herein provided, by a
written notice given in the aforesaid manner to the other parties hereto.
11. GOVERNING LAW. This Warrant shall be governed by and
construed in accordance with the internal laws of Delaware.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officers, and to be dated as of the date set forth above.
SOUND SOURCE INTERACTIVE, INC.,
a Delaware corporation
By: /s/ Vincent J. Bitetti
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Name: Vincent J. Bitetti
------------------------------
Title: CEO
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SOUND SOURCE INTERACTIVE, INC.,
a California corporation
By: /s/ Vincent J. Bitetti
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Name: Vincent J. Bitetti
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Title: CEO
------------------------------
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PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the holder of the foregoing Warrant, hereby irrevocably
elects to exercise the purchase rights represented by such Warrant to exercise
___________ Warrants for, and to the purchase thereunder, __________ shares of
Common Stock of Sound Source Interactive, Inc., a [Delaware] [California]
corporation, and herewith makes payment of $____________ thereof, and requests
that the certificates for shares of Common Stock be issued in the name(s) of,
and delivered to _______________ whose address(es) is (are)
_________________________.
Dated:____________, 199_
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Address
TRANSFER FORM
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto _______________ the right to purchase shares of Common Stock represented by
_________________________ Warrants, and appoints _________________________
attorney to transfer such rights on the books of _________________________, with
full power of substitution in the premises.
Dated:____________, 199_
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Holder
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Address
In the presence of:
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘SB-2/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/31/96 | | 1 | | 2 | | | 10QSB |
| | 9/1/96 | | 2 | | 3 |
| Filed on: | | 5/9/96 |
| | 4/30/96 | | 1 |
| List all Filings |
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