NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES
SHORT TERM WARRANT
To Purchase $1,200,000 Stated Value of Preferred Stock and Long Term Warrant
iMedia International, Inc.
THIS SHORT TERM WARRANT (the "Short Term Warrant") certifies that, for
value received, Crestview Capital Master, LLC (the "Holder"), is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date hereof (the "Initial
Exercise Date") and on or prior to the earlier of the close of business on the
one year anniversary of the Effective Date and the two year anniversary of the
date hereof (the "Termination Date") but not thereafter, to subscribe for and
purchase, from iMedia International, Inc., a Delaware corporation (the
"Company"), (a) up to $1,200,000 Stated Value of Preferred Stock at an initial
conversion price equal to $0.40 (the "Preferred Stock Conversion Price")
(subject to adjustment hereunder and thereunder) (the "Preferred Stock") and
(b) the Long Term Warrant at an exercise price of $0.60, per share (the
"Warrant Exercise Price") (subject to adjustment hereunder and thereunder)
(the "Warrant"). Upon the purchase hereunder of Preferred Stock, the Holder
shall receive a Long Term Warrant to purchase a number of shares of Common
Stock equal to 100% of the shares of Common Stock issuable upon conversion of
such Preferred Stock. The Preferred Stock and Warrant shall be in the form of
the Preferred Stock and Warrants (with the same rights, privileges and
preferences set forth in the Transaction Documents, including without
limitation, the Certificate of Designation and the Long Term Warrant) issued
pursuant to the Purchase Agreement, mutatis mutandis. The Preferred Stock and
the Warrant shall be collectively referred to as the "Securities." The
Warrant Exercise Price and the Preferred Stock Conversion Price shall be
collectively referred to herein as the "Conversion Price."
Section 1.Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings set forth in that certain Securities Purchase
Agreement (the "Purchase Agreement"), dated May __, 2005, among the Company
and the Purchasers signatory thereto.
Section 2. Exercise.
a) Exercise of this Short Term Warrant. Exercise of the
purchase rights represented by this Short Term Warrant may be made, in whole
or in part, at any time or times on or after the Initial Exercise Date and on
or before the Termination Date by (i) delivery to the Company of a duly
executed Notice of Exercise in the form annexed hereto (or such other office
or agency of the Company as it may designate by notice in writing to the
registered Holder at the address of such Holder appearing on the books of the
Company) (ii) surrender of this Warrant, and (iii) the payment of the Stated
Value thereby purchased by wire transfer or cashier's check drawn on a United
States bank. Upon exercise of the Short Term Warrant, the Company shall issue
shares of Preferred Stock with a Stated Value equal to the amount paid by the
Holder and the Long Term Warrant to purchase a number of shares of Common
Stock equal to 100% of the shares of Common Stock issuable upon conversion of
such Preferred Stock for each such warrant.
b) Mechanics of Exercise.
i. Authorization of Preferred Stock and the Warrant. The
Company covenants that during the period this Short Term Warrant is
outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of all of the shares
of Common Stock underlying the Preferred Stock and Warrant (the collectively,
"Conversion Shares"). The Company further covenants that its issuance of this
Short Term Warrant shall constitute full authority to its officers who are
charged with the duty of executing certificates to execute and issue the
necessary certificates for the Securities upon the exercise of the purchase
rights under this Short Term Warrant and certificates upon conversion and
exercise of the Securities. The Company covenants that the Securities which
may be issued upon the exercise of the purchase rights represented by this
Short Term Warrant and the Conversion Shares issuable thereunder will, upon
exercise of the purchase rights represented by this Short Term Warrant, be
duly authorized, validly issued, fully paid and nonassessable and free from
all taxes, liens and charges in respect of the issue thereof (other than taxes
in respect of any transfer occurring contemporaneously with such issue). The
Company will take all such reasonable action as may be necessary to assure
that the Securities and Conversion Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements
of the Trading Market upon which the Common Stock may be listed.
ii. Delivery of Certificates Upon Exercise. Certificates
for the Securities purchased hereunder shall be delivered to the Holder within
3 Trading Days from the delivery to the Company of the Notice of Exercise Form
and surrender of this Short Term Warrant and payment of the Stated Value as
set forth above ("Securities Delivery Date"). This Short Term Warrant shall
be deemed to have been exercised and the Securities shall be deemed to have
been issued, and Holder or any other person so designated to be named therein
shall be deemed to have become a holder of record of such security for all
purposes, as of the date of delivery to the Company of the Notice of Exercise,
surrender of this Warrant and payment to the Company of the aggregate Stated
Value and all taxes required to be paid by the Holder, if any, pursuant to
Section 2(b)(v) prior to the issuance of such security, have been paid.
iii. Delivery of New Short Term Warrants Upon Exercise. If
this Short Term Warrant shall have been exercised in part, the Company shall,
at the time of delivery of the certificate or certificates representing the
Securities, deliver to Holder a new Short Term Warrant evidencing the rights
of Holder to purchase the unpurchased Securities called for by this Short Term
Warrant, which new Short Term Warrant shall in all other respects be identical
with this Short Term Warrant.
iv. Rescission Rights. If the Company fails to deliver to
the Holder a certificate or certificates representing the Securities pursuant
to this Section 2(b)(iv) by the Securities Delivery Date, then the Holder will
have the right to rescind such exercise.
v. Charges, Taxes and Expenses. Issuance of certificates
for Securities shall be made without charge to the Holder for any issue or
transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the Holder or in such name or
names as may be directed by the Holder; provided, however, that in the event
certificates for Securities are to be issued in a name other than the name of
the Holder, this Short Term Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the
Holder; and the Company may require, as a condition thereto, the payment of a
sum sufficient to reimburse it for any transfer tax incidental thereto.
vi. Closing of Books. The Company will not close its
records in any manner which prevents the timely exercise of this Short Term
Warrant, pursuant to the terms hereof or the conversion of the Securities
pursuant to the terms hereof.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time
while this Short Term Warrant is outstanding: (A) pays a stock dividend or
otherwise make a distribution or distributions on shares of its Common Stock
or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of
Common Stock issued by the Company pursuant to the Securities), (B) subdivides
outstanding shares of Common Stock into a larger number of shares, (C)
combines (including by way of reverse stock split) outstanding shares of
Common Stock into a smaller number of shares, or (D) issues by
reclassification of shares of the Common Stock any shares of capital stock of
the Company, then in each case the Conversion Price shall be multiplied by a
fraction of which the numerator shall be the number of shares of Common Stock
(excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made pursuant to
this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective date
in the case of a subdivision, combination or re-classification.
b) Subsequent Equity Sales. If the Company or any Subsidiary
thereof, as applicable, at any time while this Short Term Warrant is
outstanding, shall offer, sell, grant any option to purchase or offer, sell or
grant any right to reprice its securities, or otherwise dispose of or issue
(or announce any offer, sale, grant or any option to purchase or other
disposition) any Common Stock or Common Stock Equivalents entitling any Person
to acquire shares of Common Stock, at an effective price per share less than
the then Conversion Price (such lower price, the "Base Share Price" and such
issuances collectively, a "Dilutive Issuance") , as adjusted hereunder (if the
holder of the Common Stock or Common Stock Equivalents so issued shall at any
time, whether by operation of purchase price adjustments, reset provisions,
floating conversion, exercise or exchange prices or otherwise, or due to
warrants, options or rights per share which is issued in connection with such
issuance, be entitled to receive shares of Common Stock at an effective price
per share which is less than the Conversion Price, such issuance shall be
deemed to have occurred for less than the Conversion Price on such date of the
Dilutive Issuance), then, the Conversion Price of the unexercised portion of
this Warrant shall be reduced and only reduced to equal the Base Share Price
and the number of shares of Common Stock issuable upon exercise of the Warrant
issuable hereunder shall be increased such that the aggregate Warrant Exercise
Price payable hereunder, after taking into account the decrease in the Warrant
Exercise Price, shall be equal to the aggregate Warrant Exercise Price prior
to such adjustment. Such adjustment shall be made whenever such Common Stock
or Common Stock Equivalents are issued. Notwithstanding the foregoing, no
adjustments shall be made, paid or issued under this Section 3(b) in respect
of an Exempt Issuance. The Company shall notify the Holder in writing, no
later than the Trading Day following the issuance of any Common Stock or
Common Stock Equivalents subject to this section, indicating therein the
applicable issuance price, or of applicable reset price, exchange price,
conversion price and other pricing terms (such notice the "Dilutive Issuance
Notice"). For purposes of clarification, whether or not the Company provides
a Dilutive Issuance Notice pursuant to this Section 3(b), upon the occurrence
of any Dilutive Issuance, after the date of such Dilutive Issuance the Holder
is entitled to receive a number of securities based upon the Base Share Price
regardless of whether the Holder accurately refers to the Base Share Price in
the Notice of Exercise.
c) Pro Rata Distributions. If the Company, at any time while
this Short Term Warrant is outstanding, distributes to all holders of Common
Stock (and not to Holders) evidences of its indebtedness or assets (including
cash and cash dividends) or rights or warrants to subscribe for or purchase
any security other than the Common Stock (which shall be subject to Section
3(b), then in each such case the Conversion Price shall be adjusted by
multiplying such Conversion Price in effect immediately prior to the record
date fixed for determination of stockholders entitled to receive such
distribution by a fraction of which the denominator shall be the VWAP
determined as of the record date mentioned above, and of which the numerator
shall be such VWAP on such record date less the then per share fair market
value at such record date of the portion of such assets or evidence of
indebtedness so distributed applicable to one outstanding share of the Common
Stock as determined by the Board of Directors in good faith. In either case
the adjustments shall be described in a statement provided to the Holder of
the portion of assets or evidences of indebtedness so distributed or such
subscription rights applicable to one share of Common Stock. Such adjustment
shall be made whenever any such distribution is made and shall become
effective immediately after the record date mentioned above.
d) Fundamental Transaction. If, at any time while this Short
Term Warrant is outstanding, (A) the Company effects any merger or
consolidation of the Company with or into another Person, (B) the Company
effects any sale of all or substantially all of its assets in one or a series
of related transactions, (C) any tender offer or exchange offer (whether by
the Company or another Person) is completed pursuant to which holders of
Common Stock are permitted to tender or exchange their shares for other
securities, cash or property, or (D) the Company effects any reclassification
of the Common Stock or any compulsory share exchange pursuant to which the
Common Stock is effectively converted into or exchanged for other securities,
cash or property (in any such case, a "Fundamental Transaction"), then, upon
any subsequent exercise of this Short Term Warrant the Holder shall have the
right to receive upon conversion or exercise of the Securities, as applicable,
for each Conversion Share that would have been issuable upon such exercise and
then subsequent conversion immediately prior to the occurrence of such
Fundamental Transaction, at the option of the Holder, (a) upon conversion or
exercise of the Securities, shares of Common Stock of the successor or
acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the "Alternate Consideration") receivable
upon or as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a Holder of the number of shares of
Common Stock for which the underlying Securities are convertible immediately
prior to such event or (b) if the Company is acquired in an all cash
transaction, cash equal to the value of this Short Term Warrant as determined
in accordance with the Black-Scholes option pricing formula. For purposes of
any such deemed conversion, the determination of the Conversion Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Conversion Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it
receives upon any conversion or exercise of the Securities underlying this
Short Term Warrant following such Fundamental Transaction. To the extent
necessary to effectuate the foregoing provisions, any successor to the Company
or surviving entity in such Fundamental Transaction shall issue to the Holder
a new short term warrant consistent with the foregoing provisions and
evidencing the Holder's right to exercise such short term warrant right
ultimately into Alternate Consideration. The terms of any agreement pursuant
to which a Fundamental Transaction is effected shall include terms requiring
any such successor or surviving entity to comply with the provisions of this
Section 3(d) and insuring that this Short Term Warrant (or any such
replacement security) will be similarly adjusted upon any subsequent
transaction analogous to a Fundamental Transaction.
e) Calculations. All calculations and adjustments to the
Conversion Price under this Section 3 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. For purposes of this Section
3, the number of shares of Common Stock deemed to be issued and outstanding as
of a given date shall be the sum of the number of shares of Common Stock
(excluding treasury shares, if any) issued and outstanding..
f) Voluntary Adjustment By Company. The Company may at any time
during the term of this Short Term Warrant reduce the then current Conversion
Price to any amount and for any period of time deemed appropriate by the Board
of Directors of the Company.
g) Notice to Holders.
i. Adjustment to Conversion Price. Whenever the Conversion
Price is adjusted pursuant to this Section 3, the Company shall promptly mail
to each Holder a notice setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment.
ii. Notice to Allow Exercise by Xxxxxx. If (A) the Company
shall declare a dividend (or any other distribution) on the Common Stock; (B)
the Company shall declare a special nonrecurring cash dividend on or a
redemption of the Common Stock; (C) the Company shall authorize the granting
to all holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights; (D) the
approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to
which the Company is a party, any sale or transfer of all or substantially all
of the assets of the Company, of any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or property; (E) the
Company shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company; then, in each case, the Company
shall cause to be mailed to the Holder at its last address as it shall appear
upon the Short Term Warrant Register of the Company, at least 20 calendar days
prior to the applicable record or effective date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution, redemption, rights or warrants, or if a record
is not to be taken, the date as of which the holders of the Common Stock of
record to be entitled to such dividend, distributions, redemption, rights or
warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become
effective or close, and the date as of which it is expected that holders of
the Common Stock of record shall be entitled to exchange their shares of the
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer or share exchange;
provided, that the failure to mail such notice or any defect therein or in the
mailing thereof shall not affect the validity of the corporate action required
to be specified in such notice. The Holder is entitled to exercise this Short
Term Warrant during the 20-day period commencing on the date of such notice to
the effective date of the event triggering such notice.
Section 4. Transfer of Short Term Warrant.
a) Transferability. Subject to compliance with any applicable
securities laws and the conditions set forth in Sections 5(a) and 4(e) hereof
and to the provisions of Section 4.1 of the Purchase Agreement, this Short
Term Warrant and all rights hereunder are transferable, in whole or in part,
upon surrender of this Short Term Warrant at the principal office of the
Company, together with a written assignment of this Short Term Warrant
substantially in the form attached hereto duly executed by the Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such
payment, the Company shall execute and deliver a new Short Term Warrant or
Short Term Warrants in the name of the assignee or assignees and in the
denomination or denominations specified in such instrument of assignment, and
shall issue to the assignor a new Short Term Warrant evidencing the portion of
this Short Term Warrant not so assigned, and this Short Term Warrant shall
promptly be cancelled. A Short Term Warrant, if properly assigned, may be
exercised by a new holder for the purchase of Securities without having a new
Short Term Warrant issued.
b) New Short Term Warrants. This Short Term Warrant may be
divided or combined with other Short Term Warrants upon presentation hereof at
the aforesaid office of the Company, together with a written notice specifying
the names and denominations in which new Short Term Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with
Section 4(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Short Term Warrant or
Short Term Warrants in exchange for the Short Term Warrant or Short Term
Warrants to be divided or combined in accordance with such notice.
c) Short Term Warrant Register. The Company shall register this
Short Term Warrant, upon records to be maintained by the Company for that
purpose (the "Short Term Warrant Register"), in the name of the record Holder
hereof from time to time. The Company may deem and treat the registered
Holder of this Short Term Warrant as the absolute owner hereof for the purpose
of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary
d) Transfer Restrictions. If, at the time of the surrender of
this Short Term Warrant in connection with any transfer of this Short Term
Warrant, the transfer of this Short Term Warrant shall not be registered
pursuant to an effective registration statement under the Securities Act and
under applicable state securities or blue sky laws, the Company may require,
as a condition of allowing such transfer (i) that the Holder or transferee of
this Short Term Warrant, as the case may be, furnish to the Company a written
opinion of counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the effect
that such transfer may be made without registration under the Securities Act
and under applicable state securities or blue sky laws, (ii) that the holder
or transferee execute and deliver to the Company an investment letter in form
and substance acceptable to the Company and (iii) that the transferee be an
"accredited investor" as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), or
(a)(8) promulgated under the Securities Act or a qualified institutional buyer
as defined in Rule 144A(a) under the Securities Act.
Section 5. Miscellaneous.
a) Title to the Short Term Warrant. Prior to the Termination
Date and subject to compliance with applicable laws and the terms of this
Short Term Warrant, this Short Term Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by
the Holder in person or by duly authorized attorney, upon surrender of this
Short Term Warrant together with the Assignment Form annexed hereto properly
endorsed. The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company.
b) No Rights as Shareholder Until Exercise. This Short Term
Warrant does not entitle the Holder to any voting rights or other rights as a
shareholder of the Company prior to the exercise hereof. Upon the surrender
of this Short Term Warrant and the payment of the aggregate principal, the
Securities so purchased shall be and be deemed to be issued to such Holder as
the record owner of such shares as of the close of business on the later of
the date of such surrender or payment.
c) Loss, Theft, Destruction or Mutilation of Short Term
Warrant. The Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Short Term Warrant or any stock certificate relating to the Securities,
and in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (which, in the case of the Short Term Warrant, shall not
include the posting of any bond), and upon surrender and cancellation of such
Short Term Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Short Term Warrant or stock certificate of like tenor and
dated as of such cancellation, in lieu of such Short Term Warrant or stock
certificate.
d) Saturdays, Sundays, Holidays, etc. If the last or appointed
day for the taking of any action or the expiration of any right required or
granted herein shall be a Saturday, Sunday or a legal holiday, then such
action may be taken or such right may be exercised on the next succeeding day
not a Saturday, Sunday or legal holiday.
e) Authorized Shares.
The Company covenants that during the period the Short Term
Warrant is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the
shares of Common Stock issuable upon conversion and exercise, as applicable,
of the Securities. The Company further covenants that its issuance of this
Short Term Warrant shall constitute full authority to its officers who are
charged with the duty of executing certificates to execute and issue the
necessary certificates for the Securities upon the exercise of the purchase
rights under this Short Term Warrant. The Company will take all such
reasonable action as may be necessary to assure that such Securities and
Conversion Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market
upon which the Common Stock may be listed.
Except and to the extent as waived or consented to by the
Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Short Term Warrant or
the Securities, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Short Term
Warrant and the Securities against impairment. Without limiting the
generality of the foregoing, the Company will (a) take all such action as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Securities upon the exercise of this Short
Term Warrant and Conversion Shares upon conversion and exercise of the
Securities, and (b) use commercially reasonable efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Short Term Warrant and the Securities.
Before taking any action which would result in an adjustment
in the Securities for which this Short Term Warrant is exercisable or in the
Conversion Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
f) Jurisdiction. All questions concerning the construction,
validity, enforcement and interpretation of this Short Term Warrant shall be
determined in accordance with the provisions of the Purchase Agreement.
g) Restrictions. The Holder acknowledges that the Securities
acquired upon the exercise of this Short Term Warrant, if not registered, will
have restrictions upon resale imposed by state and federal securities laws.
h) Nonwaiver and Expenses. No course of dealing or any delay
or failure to exercise any right hereunder on the part of Holder shall operate
as a waiver of such right or otherwise prejudice Xxxxxx's rights, powers or
remedies, notwithstanding the fact that all rights hereunder terminate on the
Termination Date. If the Company willfully and knowingly fails to comply with
any provision of this Short Term Warrant, which results in any material
damages to the Holder, the Company shall pay to Holder such amounts as shall
be sufficient to cover any costs and expenses including, but not limited to,
reasonable attorneys' fees, including those of appellate proceedings, incurred
by Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
i) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder by the Company shall be
delivered in accordance with the notice provisions of the Purchase Agreement.
j) Limitation of Liability. No provision hereof, in the
absence of any affirmative action by Holder to exercise this Short Term
Warrant or purchase Securities, and no enumeration herein of the rights or
privileges of Holder, shall give rise to any liability of Holder for the
purchase price of any Common Stock or as a stockholder of the Company, whether
such liability is asserted by the Company or by creditors of the Company.
k) Remedies. Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Short Term Warrant. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Short Term
Warrant and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
l) Successors and Assigns. Subject to applicable securities
laws, this Short Term Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of the
Company and the successors and permitted assigns of Holder. The provisions of
this Short Term Warrant are intended to be for the benefit of all Holders from
time to time of this Short Term Warrant and shall be enforceable by any such
Holder or holder of Securities.
m) Amendment. This Short Term Warrant may be modified or
amended or the provisions hereof waived with the written consent of the
Company and the Holder.
n) Severability. Wherever possible, each provision of this
Short Term Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Short Term Warrant
shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Short Term Warrant.
o) Headings. The headings used in this Short Term Warrant are
for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Short Term Warrant.
********************
IN WITNESS WHEREOF, the Company has caused this Short Term Warrant to be
executed by its officer thereunto duly authorized.
Dated: May 23, 2005
IMEDIA INTERNATIONAL, INC.
By:__________________________________________
Name: Xxxxx XxxXxxxxxx
Title: Chief Executive Officer
NOTICE OF EXERCISE
TO: IMEDIA INTERNATIONAL, INC.
(1) The undersigned hereby elects to purchase $________ Stated Value of
Preferred Stock and Warrants to purchase _____ shares of Common Stock of
iMedia International, Inc. pursuant to the terms of the attached Short Term
Warrant and tenders herewith payment of the Exercise Price in full, together
with all applicable transfer taxes, if any.
(2) Payment shall take the form of a cashier's check or wire transfer
in lawful money of the United States.
(3) Please issue a certificate or certificates representing said
Securities in the name of the undersigned or in such other name as is
specified below:
_________________________________________
The Securities shall be delivered to the following:
_______________________________
_______________________________
_______________________________
(4) Accredited Investor. The undersigned is an "accredited investor"
as defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity:____________________________________________________
Signature of Authorized Signatory of Investing Entity: ______________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ______________________________________________
Date: _______________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the Short Term Warrant.)
FOR VALUE RECEIVED, the foregoing Short Term Warrant and all rights
evidenced thereby are hereby assigned to
_______________________________________________ whose address is
__________________________________________________________________________.
__________________________________________________________________________
Dated: ______________, _______
Holder's Signature:____________________________________________
Holder's Address:______________________________________________
______________________________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as
it appears on the face of the Short Term Warrant, without alteration or
enlargement or any change whatsoever, and must be guaranteed by a bank or
trust company. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to
assign the foregoing Short Term Warrant.
