NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED UNLESS SO REGISTERED OR AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT IS AVAILABLE. THIS LEGEND SHALL BE
IMPRINTED ON ANY WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
WARRANT AGREEMENT
FOR COMMON STOCK OF
Concepts Direct, Inc.
Warrant No. 2
THIS CERTIFIES that, for value received, ST. CLOUD
CAPITAL PARTNERS, LP, a Delaware limited partnership St. Cloud"),
or its permitted assigns (collectively, the "Holder"), is entitled
to purchase from CONCEPTS DIRECT, INC., a Delaware corporation
(the "Company"), at any time, and from time to time, during the
exercise period referred to in Section 1 hereof, 275,000 fully
paid, validly issued and nonassessable shares (the "Warrant
Shares") of common stock of the Company, par value $0.10 per share
(the "Common Stock"), at the exercise price of $0.10 per share,
subject to adjustment as provided herein (the "Warrant Share
Price") (it being acknowledged and agreed that pursuant to Section
1.3 of that certain Note and Warrant Purchase Agreement, by and
among the Company, St. Cloud, Xxxxxxx X. Xxxxxx and Xxxxx X.
Xxxxxx, dated as of even date hereof (the "Purchase Agreement"),
St. Cloud, on its own behalf, and on behalf of each Holder, has
made an advance payment of $0.09 per share with respect to the
Warrant Share Price of each Warrant Share, and such advance
payment shall be taken into account for purposes of computing the
remaining Warrant Share Price required to be paid (the "Unpaid
Warrant Share Price") upon exercise of this Warrant and any
adjustments thereto). Securities issuable upon exercise of this
Warrant and the unpaid exercise price payable therefor are subject
to adjustment from time to time as hereinafter set forth. As used
herein, the term "Warrant" shall include any warrant or warrants
hereafter issued in consequence of the exercise of this Warrant in
part or transfer of this Warrant in whole or in part and any
warrant or warrants into which this Warrant may be divided or
exchanged.
1. EXERCISE; PAYMENT FOR OWNERSHIP INTEREST.
1.1 Upon the terms and subject to the conditions set forth
herein, this Warrant may be exercised in whole or in part by the
Holder hereof at any time, or from time to time, on or after July
26, 2002 and prior to 5 p.m. New York time on April 26, 2009 upon
by presentation and surrender of this Warrant to the principal
offices of the Company, or at the office of its Transfer Agent (as
defined in Section 9 hereof), if any, together with the Purchase
Form attached hereto, duly executed, and accompanied by payment to
the Company of the Unpaid Warrant Share Price multiplied by the
number of Warrant Shares as to which this Warrant is then being
exercised; provided, however, that in the event of any merger,
consolidation or sale of all or substantially all the assets of
the Company resulting in any distribution to the Company's
stockholders, prior to April 26, 2009, the Holder shall have the
right to exercise this Warrant commencing at such time through
April 26, 2009 into the kind and amount of shares of stock and
other securities and property (including cash) receivable by a
holder of the number of shares of Common Stock into which this
Warrant might have been exercisable immediately prior thereto.
Any transfer of Warrant Shares obtained by the Holder in exercise
of this Warrant is subject to the Investors' Rights Agreement, by
and among the Company, St. Cloud, Xxxxxxx X. Xxxxxx and Xxxxx X.
Xxxxxx, dated as of even date hereof (the "Investors' Rights
Agreement") and the requirement that such securities be registered
under the Securities Act of 1933, as amended (the "1933 Act"), and
applicable state securities laws or exempt from registration under
such laws. The Holder of this Warrant shall be deemed to be a
stockholder of the Warrant Shares as to which this Warrant is
exercised in accordance herewith effective immediately after the
close of business on the date on which the Holder shall have
delivered to the Company this Warrant in proper form for exercise
and payment by certified or official heck or wire transfer of the
cash purchase price for the number of Warrant Shares as to which
the exercise is being made, notwithstanding that the stock
transfer books of the Company shall be then closed or that
certificates representing such Warrant Shares shall not then be
physically delivered to the Holder.
1.2 All or any portion of the Unpaid Warrant Share Price may
be paid by surrendering Warrants effected by presentation and
surrender of this Warrant to the Company, or at the office of its
Transfer Agent, if any, with a Cashless Exercise Form annexed
hereto duly executed (a "Cashless Exercise"). Such presentation
and surrender shall be deemed a waiver by the Company of the
Holder's obligation to pay all or any portion of the aggregate
Unpaid Warrant Share Price. In the event of a Cashless Exercise,
the Holder shall exchange its Warrant for that number of shares of
Common Stock determined by multiplying the number of Warrant
Shares for which the Holder desires to exercise this Warrant by a
fraction, the numerator of which shall be the difference between
the then current market price per share of the Common Stock and
the Unpaid Warrant Share Price, and the denominator of which shall
be the then current market price per share of Common Stock. For
purposes of any computation under this Section 1.2, the then
current market price per share of Common Stock at any date shall
be deemed to be the average for the ten (10) consecutive business
days immediately prior to the Cashless Exercise of the daily
closing prices of the Common Stock on the principal national
securities exchange on which the Common Stock is admitted to
trading or listed, or if not listed or admitted to trading on any
such exchange, the closing prices as reported by the Nasdaq
National Market or, if applicable, the Nasdaq SmallCap Market, or
if not then included for quotation on the Nasdaq National Market
or the Nasdaq SmallCap Market, the average of the highest reported
bid and lowest reported asked prices as reported by the OTC
Bulletin Board or the National Quotations Bureau, as the case may
be, or if not then publicly traded, the fair market price, not
less than book value thereof, of the Common Stock as determined in
good faith by the independent members of the Board of Directors of
the Company.
1.3 If this Warrant shall be exercised in part only, the Company
shall, upon surrender of this Warrant for cancellation, execute
and deliver a new Warrant evidencing the rights of the Holder
thereof to purchase the balance of the Warrant Shares purchasable
hereunder as to which the Warrant has not been exercised. If this
Warrant is exercised in part, such exercise shall be for a whole
number of Warrant Shares. Upon any exercise and surrender of this
Warrant, the Company (a) will issue and deliver to the Holder a
certificate or certificates in the name of the Holder for the
largest whole number of Warrant Shares to which the Holder shall
be entitled and, if this Warrant is exercised in whole, in lieu of
any fractional Warrant Share to which the Holder otherwise might
be entitled, cash in an amount equal to the fair value of such
fractional Warrant Share (determined in such reasonable and
equitable manner as the Board of Directors of the Company shall in
good faith determine), and (b) will deliver to the Holder such
other securities, properties or cash which the Holder may be
entitled to receive upon such exercise, or the proportionate part
thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant.
2. ANTI-DILUTION PROVISIONS. The Unpaid Warrant Share
Price in effect at any time and the number and kind of securities
issuable upon exercise of this Warrant and the Unpaid Warrant
Share Price shall be subject to adjustment from time to time upon
happening of certain events as follows:
2.1 Reorganization, Reclassification, Consolidation, Merger
or Sale. If any capital reorganization, reclassification or any
other change of capital stock of the Company, or any consolidation
or merger of the Company with another person, or the sale or
transfer of all or substantially all of its assets to another
person shall be effected in such a way that holders of shares of
Common Stock shall be entitled to receive stock, securities or
assets with respect to or in exchange for their shares of Common
Stock, then provision shall be made by the Company, in accordance
with this Section 2.1, whereby the Holder hereof shall thereafter
have the right to purchase and receive, upon the basis and upon
the terms and conditions specified in this Warrant and in addition
to or in exchange for, as applicable, the Warrant Shares subject
to this Warrant immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby, such
securities or assets as would have been issued or payable with
respect to or in exchange for the aggregate Warrant Shares
immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby if exercise of the
Warrant had occurred immediately prior to such reorganization,
reclassification, consolidation, merger or sale. The Company will
not effect any such consolidation, merger, sale, transfer or lease
unless prior to the consummation thereof the successor entity (if
other than the Company) resulting from such consolidation or
merger or the entity purchasing such assets shall assume by
written instrument (a) the obligation to deliver to the Holder
such securities or assets as, in accordance with the foregoing
provisions, the Holder may be entitled to purchase, and (b) all
other obligations of the Company under this Warrant. The
provisions of this Section 2.1 shall similarly apply to successive
consolidations, mergers, exchanges, sales, transfers or leases.
In the event that in connection with any such capital reorga ion
or reclassification, consolidation, merger, sale or transfer,
additional shares of Common Stock shall be issued in exchange,
conversion, substitution or payment, in whole or in part, for a
security of the Company other than Common Stock, any such issue
shall be treated as an issue of Common Stock covered by the
provisions of Section 2.2 hereof.
2.2 Stock Dividends and Securities Distributions. If, at any
time or from time to time after the date of this Warrant, the
Company shall distribute to the holders of shares of Common Stock
(a) securities (including rights, warrants, options or another
form of convertible securities), (b) property, other than cash, or
(c) cash, without fair payment therefor, then, and in each such
case, the Holder, upon the exercise of this Warrant, shall be
entitled to receive such securities, property and cash which the
Holder would hold on the date of such exercise if, on the date of
the distribution, the Holder had been the holder of record of the
shares of Common Stock issued upon such exercise and, during the
period from the date of this Warrant to and including the date of
such exercise, had retained such shares of Common Stock and the
securities, property and cash receivable by the Holder during such
period, subject, however, to the Holder agreeing to any conditions
to such distribution as were required of all other holders of
shares of Common Stock in connection with such distribution.
2.3 Other Adjustments. In addition to those adjustments set
forth in Section 2.1 and Section 2.2, but without duplication of
the adjustments to be made under such Sections, if the Company:
(a) declares or pays a dividend or makes a distribution on
its Common Stock in shares of its Common Stock;
(b) subdivides or reclassifies its outstanding shares of
Common Stock into a greater number of shares;
(c) combines or reclassifies its outstanding shares of Common
Stock into a smaller number of shares;
(d) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; and/or
(e) issues, by reclassification of its Common Stock, any
shares of its capital stock;
then the number and kind of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Holder upon
exercise hereof shall be entitled to receive the kind and number
of Warrant Shares or other securities of the Company that the
Holder would have owned or have been entitled to receive after the
happening of any of the events described above had this Warrant
been exercised immediately prior to the happening of such event or
any record date with respect thereto. An adjustment made pursuant
to this Section 2.3 shall become effective immediately after the
record date in the case of a dividend or distribution and shall
become effective immediately after the effective date in the case
of a subdivision, combination or issuance. If, as a result of an
adjustment made pursuant to this Section 2.3, the Holder of this
Warrant thereafter surrendered for exercise shall become entitled
to receive shares of two (2) or more classes of capital stock or
shares of Common Stock and any other class of capital stock of the
Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a written notice to all
holders of Warrants promptly after such adjustment) shall
determine the allocation of the adjusted Unpaid Warrant Share
Price between or among shares of such classes of capital stock or
shares of Common Stock and such other class of capital stock.
The adjustment to the number of Warrant Shares purchasable
upon the exercise of this Warrant described in this Section 2.3
shall be made each time any event listed in paragraphs (a) through
(e) of this Section 2.3 occurs.
Simultaneously with all adjustments to the number and/or
kind of securities, property and cash under this Section 2.3 to be
issued in connection with the exercise of this Warrant, the Unpaid
Warrant Share Price will also be appropriately and proportionately
adjusted.
(f) In the event that at any time, as a result of an
adjustment made pursuant to this Section 2.3, the Holder of this
Warrant thereafter shall become entitled to receive any shares of
the Company, other than Common Stock, thereafter the number of
such other shares so receivable upon exercise of this Warrant
shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions
with respect to the Common Stock contained in Section 2.1 and
Section 2.2 above.
2.4 Notice of Adjustments. Upon the occurrence of each
adjustment or readjustment of the Unpaid Warrant Share Price
pursuant to this Section 2, the Company at its expense will
promptly compute such adjustment or readjustment in accordance
with the terms of this Warrant and prepare a certificate setting
forth such adjustment or readjustment, including a statement of
the adjusted Unpaid Warrant Share Price or adjusted number of
shares of Common Stock, if any, issuable upon exercise of each
Warrant, describing the transaction giving rise to such
adjustments and showing in detail the facts upon which such
adjustment or readjustment is based. The Company will forthwith
mail, by first class mail, postage prepaid, a copy of each such
certificate to the Holder of this Warrant at the address of such
Holder as shown on the books of the Company, and to its Transfer
Agent. Any Holder of this Warrant may change his address by
written notice to the Company at its office (or at such other
office or agency of the Company as it may from time to time
designate in writing to the Holder) requesting such change.
2.5 Other Notices. If at any time:
(a) the Company shall (i) offer for subscription pro rata
to the holders of shares of the Common Stock any additional equity
in the Company or other rights; (ii) pay a dividend in additional
shares of the Common Stock or distribute securities or other
property to the holders of shares of the Common Stock (including,
without limitation, evidences of indebtedness and equity and debt
securities); or (iii) issue securities convertible into, or rights
or warrants to purchase, securities of the Company;
(b) there shall be any capital reorganization or
reclassification or consolidation or merger of the Company with,
or sale, transfer or lease of all or substantially all of its
assets to, another entity; or
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give, by
first class mail, postage prepaid, to the Holder of this Warrant
at the address of such Holder as shown on the books of the
Company, (a) at least fifteen (15) days' prior written notice of
the date on which the books of the Company shall close or a record
shall be taken for such subscription rights, dividend,
distribution or issuance, and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, at least fifteen (15)
days' prior written notice of the date when the same shall take
place if no stockholder vote is required and at least fifteen (15)
days' prior written notice of the record date for stockholders
entitled to vote upon such matter if a stockholder vote is
required. Such notice in accordance with the foregoing clause (a)
shall also specify, in the case of any such subscription rights,
the date on which the holders of shares of Common Stock shall be
entitled to exercise their rights with respect thereto, and such
notice in accordance with the foregoing clause (b) shall also
specify the date on which the holders of shares of Common Stock
shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Failure to give the
notice referred to herein shall not affect the validity or
legality of the action which should have been the subject of the
notice.
2.6 No Impairment. The Company shall not, by amendment of
its Certificate of Incorporation or Bylaws or through any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
action, including, without limitation, voluntary bankruptcy
proceedings, avoid or seek to avoid the observance or performance
of any of the terms to be observed or performed hereunder by the
Company but shall at all times in good faith assist in the
carrying out of all the provisions of this Section 2 and in the
taking of all such action as may be necessary or appropriate on
order to protect the rights of the registered holder of this
Warrant against impairment.
3. No Voting Rights. This Warrant shall not be deemed to
confer upon the Holder any right to vote or to consent to or
receive notice as a stockholder of the Company, as such, in
respect of any matters whatsoever, or any other rights or
liabilities as a stockholder, prior to the exercise hereof.
4. Warrants Transferable. Subject to Section 3 of the
Investors' Rights Agreement, this Warrant and all rights hereunder
are transferable, in whole or in part, at the principal offices of
the Company by the Holder hereof, upon surrender of this Warrant
properly endorsed; provided, however, that without the prior
written consent of the Company, this Warrant and all rights
hereunder may be transferred only (a) pursuant to an exemption
from registration under the 1933 Act, or (b) pursuant to the
registration of this Warrant or the Warrant Shares under the 1933
Act. It shall be a condition to transfer of this Warrant that the
transferee agrees to be bound by the restrictions on transfer
contained in the previous sentence.
5. Warrants Exchangeable; Assignment; Loss, Theft, Destruction,
Etc. This Warrant is exchangeable, without expense, upon
surrender hereof by the Holder hereof at the principal offices of
the Company, or at the office of its Transfer Agent, if any, for
new Warrants of like tenor representing in the aggregate the right
to subscribe for and purchase the Warrant Shares which may be
subscribed for and purchased hereunder, each such new Warrant to
represent the right to subscribe for and purchase such Warrant
Shares as shall be designated by such Holder hereof at the time of
such surrender. Upon surrender of this Warrant to the Company at
its principal office, or at the office of its Transfer Agent, if
any, with an instrument of assignment duly executed and funds
sufficient to pay any transfer tax, the Company shall, without
charge, execute and deliver a new Warrant in the name of the
assignee named in such instrument of assignment and this Warrant
shall promptly be cancelled. This Warrant may be divided or
combined with other warrants which carry the same rights upon
presentation hereof at the principal office of the Company, or at
the office of its Transfer Agent, if any, together with a written
notice specifying the names and denominations in which new
Warrants are to be issued and signed by the Holder hereof. Upon
receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant and, in the case
of any such loss, theft or destruction, upon delivery of a bond or
indemnity satisfactory to the Company, or, in the case of any such
mutilation, upon surrender or cancellation of this Warrant, the
Company will issue to the Holder hereof a new Warrant of like
tenor, in lieu of this Warrant, representing the right to
subscribe for and purchase the Warrant Shares which may be
subscribed for and purchased hereunder. Any such new Warrant
executed and delivered shall constitute an additional contractual
obligation of the Company, whether or not this Warrant so lost,
stolen, destroyed, or mutilated shall be at any time enforceable
by anyone.
6. Legends. Any certificate evidencing the securities issued upon
exercise of this Warrant shall bear a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED UNLESS SO REGISTERED OR AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT IS AVAILABLE.
7. Modifications and Waivers. The terms of this Warrant may be
amended, modified or waived only by the written agreement of the
Company and the Holder.
8. Miscellaneous. The Company shall pay all expenses and other
charges payable in connection with the preparation, issuance and
delivery of this Warrant and all substitute Warrants. The Holder
shall pay all taxes (other than any issuance taxes, including,
without limitation, documentary stamp taxes, transfer taxes and
other governmental charges, which shall be paid by the Company) in
connection with such issuance and delivery of this Warrant and the
Warrant Shares. The Company shall maintain, at the office or
agency of the Company maintained by the Company, books for the
registration and transfer of the Warrant.
9. Reservation of Warrant Shares. The Company will at all
times reserve and keep available, free from preemptive rights, out
of the aggregate of its authorized but unissued Common Stock or
its authorized and issued Common Stock held in its treasury,
solely for the purpose of enabling it to satisfy any obligation to
issue Warrant Shares upon exercise of this Warrant, the maximum
number of shares of Common Stock which may then be deliverable
upon the exercise of this Warrant.
The Company or, if appointed, the Transfer Agent for the Common
Stock (the "Transfer Agent") and every subsequent transfer agent
for any shares of the Company's capital stock issuable upon the
exercise of any of the rights of purchase aforesaid will be
irrevocably authorized and directed at all times to reserve such
number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Warrant on file with the
Transfer Agent and with every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise
of the rights of purchase represented by this Warrant. The
Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto transmitted to the
Holder pursuant to Section 2.5 hereof.
The Company covenants that all Warrant Shares which may be
issued upon exercise of this Warrant will, upon issue, be fully
paid, nonassessable, free of preemptive rights and free from all
taxes, liens, charges and security interests with respect to the
issue thereof.
10. Registration. The Holder shall be entitled to the
registration rights with respect to the Warrant Shares as set
forth in the Investors' Rights Agreement.
11. Descriptive Headings and Governing Law. The descriptive
headings of the several paragraphs of this Warrant are inserted
for convenience only and do not constitute a part of this Warrant.
This Warrant shall be construed and enforced in accordance with
the laws of the State of Delaware, and the rights of the parties
shall be governed by, the law of such State.
IN WITNESS WHEREOF, this Warrant has been executed as of
the ______ day of April, 2002.
CONCEPTS DIRECT, INC.
By:/s/Xxxx X. XxXxxxxxxx
Xxxx X. XxXxxxxxxx
Chief Financial Officer
PURCHASE FORM
Dated:__________, ____
The undersigned hereby irrevocably elects to exercise the
within Warrant to the extent of purchasing _____ Warrant Shares
and hereby makes payment of $_____________ in payment of the
exercise price thereof. The undersigned further confirms that
the representations and warranties contained in Section 4.5 of the
Purchase Agreement are true and correct as of the date hereof.
_________________________________________
CASHLESS EXERCISE
Dated:__________, ____
The undersigned irrevocably elects to exercise the within
Warrant for __________ Warrant Shares and hereby makes payment pursuant
to the Cashless Exercise provision of the within Warrant, and
directs that the payment of the Unpaid Warrant Share Price be made
by cancellation as of the date of exercise of a portion of the
within Warrant in accordance with the terms and provisions of
Section 1.2 of the within Warrant.
________________________________________
