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EXHIBIT 10.2
THIS WARRANT, AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF, HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE REOFFERED OR SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO (1) REGISTRATION OR
(2) AN OPINION OF COUNSEL FOR THE COMPANY OR OTHER COUNSEL REASONABLY ACCEPTABLE
TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT
To Purchase Shares of Common Stock of
XXXX XXX MEDIA, INC.
July 31, 2000
Xxxx Xxx Media, Inc., a Colorado corporation (the "Company"), for value
received, hereby certifies that Venture Soft Co., Ltd., or its registered
assigns (the "Holder"), is entitled, subject to the terms set forth below, upon
exercise of this Warrant to purchase from the Company 100,000 shares of Common
Stock, no par value, of the Company ("Common Stock"). Until adjusted as provided
by the terms of this Warrant, the exercise price per share (the "Exercise
Price") shall be equal to the closing price of the Common Stock on the date
hereof. The shares issuable upon exercise or conversion of this Warrant as
adjusted from time to time pursuant to the provisions of this Warrant, are
hereinafter referred to as the "Warrant Shares."
This Warrant is further subject to the following provisions, terms and
conditions:
1. Term. This Warrant may be exercised by the Holder, in whole or in part,
at any time before the close of business on the date five years after the date
hereof.
2. Manner of Exercise. This Warrant may be exercised by the Holder, in
whole or in part (but not as to any fraction of a share of Common Stock), by
surrendering this Warrant, with the Exercise Form attached hereto as Exhibit A
filled-in and duly executed by such Holder or by such Holder's duly authorized
attorney, to the Company at its principal office accompanied by payment of the
Exercise Price in the amount of the Exercise Price multiplied by the number of
shares as to which the Warrant is being exercised. The Exercise Price may be
paid by in the form of a check or wire transfer of funds.
3. Conversion of Warrant
(a) The Holder shall also have the right (the "Conversion Right") at
any time when this Warrant may be exercised to convert all or any portion
of this Warrant into
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such number of shares (rounded to the nearest whole share) of Company
Common Stock equal to the quotient obtained by dividing (i) the "Aggregate
Warrant Spread" as of the date the Conversion Right is exercised, by (ii)
the "Market Price of the Common Stock" as of the date the Conversion Right
is exercised. The Conversion Right shall be exercisable at any time that
this Warrant is exercisable pursuant to Section 1 above, by surrendering
this Warrant with the Conversion Form attached hereto as Exhibit B
filled-in and duly executed by such Holder or by such Holder's duly
authorized attorney to the Company at its principal office.
(b) For purposes of this Section 3, the "Aggregate Warrant Spread" of
all or a portion of this Warrant as of a particular date shall equal (i)
the Market Price of the Common Stock multiplied by the number of shares of
Common Stock purchasable upon exercise of all or such portion of this
Warrant on such date, minus (ii) the Exercise Price multiplied by the
number of shares of Common Stock purchasable upon exercise of all or such
portion of this Warrant on such date. For purposes of this Warrant, the
"Market Price of the Common Stock" as of a particular date shall equal: (i)
if the Common Stock is traded on an exchange or is quoted on either the
Nasdaq National Market or Small-Cap Market, then the average of the closing
or last sale prices, respectively, reported for the five (5) trading days
immediately preceding such date, or (ii) if the Common Stock is not traded
on an exchange, the Nasdaq National Market, or the Nasdaq Small-Cap Market
but is traded in the local over-the-counter market, then the average of the
mid-points between the highest bid and lowest asked quotations for each of
the five (5) trading days immediately preceding such date.
4. Effective Date of Exercise or Conversion. Each exercise or conversion of
this Warrant shall be deemed effective as of the close of business on the day on
which this Warrant is surrendered to the Company as provided in Section 2 or
Section 3(a) above. At such time, the person or persons in whose name or names
any certificates for Warrant Shares shall be issuable upon such exercise or
conversion shall be deemed to have become the holder or holders of record of the
Warrant Shares represented by such certificates. Within ten (10) days after the
exercise or conversion of this Warrant in full or in part, the Company will, at
its expense, cause to be issued in the name of and delivered to the Holder or
such other person as the Holder may (upon payment by such Holder of any
applicable transfer taxes) direct: (i) a certificate or certificates for the
number of full Warrant Shares to which such Holder is entitled upon such
exercise or conversion, and (ii) unless this Warrant has expired, a new Warrant
or Warrants (dated the date hereof and in form identical hereto) representing
the right to purchase the remaining number of shares of Common Stock, if any,
with respect to which this Warrant has not then been exercised or converted.
5. Adjustments to Exercise Price. The above provisions are, however,
subject to the following:
(a) (i) If the Company shall at anytime after the date of this Warrant
subdivide or combine the outstanding shares of Common Stock or declare
a dividend payable in Common Stock, then the number of shares of
Common Stock for which this Warrant may be exercised as of immediately
prior to the subdivision, combination or record date for such dividend
payable in Common
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Stock shall forthwith be proportionately decreased, in the case of
combination, or increased, in the case of subdivision or dividend
payable in Common Stock.
(ii) If the Company shall at anytime after the date of this
Warrant subdivide or combine the outstanding shares of Common Stock or
declare a dividend payable in Common Stock, the Exercise Price in
effect immediately prior to the subdivision, combination or record
date for such dividend payable in Common Stock shall forthwith be
proportionately increased, in the case of combination, or decreased,
in the case of subdivision or dividend payable in Common Stock.
(b) If any capital reorganization or reclassification of the capital
stock of the Company, or share exchange, combination, consolidation or
merger of the Company with another corporation, or the sale of all or
substantially all of its assets to another corporation shall be effected in
such a way that holders of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock, then,
as a condition of such reorganization, reclassification, share exchange,
combination, consolidation, merger or sale, lawful and adequate provision
shall be m4ade whereby the Holder shall thereafter have the right to
receive upon exercise of this Warrant upon the basis and upon the terms and
conditions specified in this Warrant and in lieu of the shares of the
Common Stock of the Company into which this Warrant could be exercisable or
convertible, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of outstanding shares
of such Common Stock equal to the maximum number of shares of such stock
issuable upon exercise of this Warrant, and in any such case appropriate
provisions shall be made with respect to the rights and interests of Holder
to the end that the provisions hereof (including without limitation
provisions for adjustments of the Exercise Price and of the number of
shares purchasable upon exercise or conversion of this Warrant) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise or
conversion hereof. The Company shall not effect any such share exchange,
combination, consolidation, merger or sale, unless prior to the
consummation thereof the successor corporation (if other than the Company)
resulting from such share exchange, combination, consolidation or merger or
the corporation purchasing such assets shall assume by written instrument
executed and mailed to the Holder at the last address of such Holder
appearing on the books of the Company, the obligation to deliver to such
Holder such shares of stock, securities or assets which, in accordance with
the foregoing provisions, such Holder may thereafter be entitled to receive
upon exercise or conversion of this Warrant.
(c) If at anytime after the date of this Warrant the Company
distributes to all holders of Common Stock any assets (excluding ordinary
cash dividends), debt securities, or any rights or warrants to purchase
debt securities, assets or other securities (including Common Stock), the
Exercise Price shall be adjusted in accordance with the formula:
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E = E x (O x M) - F
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O x M
where:
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E = the adjusted Exercise Price.
E = the current Exercise Price.
M = the average market price of Common Stock
for the 30 consecutive trading days
commencing 45 trading days before the record
date mentioned below.
O = the number of shares of Common Stock
outstanding on the record date mentioned below.
F = the fair market value on the record date
of the aggregate of all assets, securities,
rights or warrants distributed. The
Company's Board of Directors shall determine
the fair market value in the exercise of its
reasonable judgment.
The adjustment shall be made successively whenever any such distribution is
made and shall become effective immediately after the record date for the
determination of stockholders entitled to receive the distribution.
No adjustment of the Exercise Price, however, shall be made in an
amount less than 1% of the Exercise Price in effect on the date of such
adjustment, but any such lesser adjustment shall be carried forward and
shall be made at the time and together with the next subsequent adjustment
which, together with any such adjustment so carried forward, shall be an
amount equal to or greater than 1% of the Exercise Price then in effect.
(e) Upon any adjustment of the Exercise Price, then and in each such
case, the Company shall give written notice thereof, by first class mail,
postage prepaid, addressed to the Holder of this Warrant at the address of
such Holder as shown on the books of the Company, which notice shall state
the Exercise Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares for which this Warrant may be
exercised, setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
6. Common Stock. As used herein, the term "Common Stock" shall mean and
include the Company's presently authorized shares of common stock and shall also
include any capital stock of any class of the Company hereafter authorized which
shall not be limited to a fixed sum or percentage in respect of the rights of
the holders thereof to participate in dividends or in the distribution,
dissolution or winding up of the Company. Holders shall have "piggy back"
registration rights, subject to any registration rights agreements in force as
of the date hereof, with respect to the shares of Common Stock underlying this
Warrant.
7. No Voting Rights. This Warrant shall not entitle the Holder to any
voting rights or other rights as a shareholder of the Company unless and until
exercised or converted pursuant to the provisions hereof.
8. Transfer of Warrant. Subject to compliance with applicable federal and
state securities laws, this Warrant and all rights hereunder are transferable in
whole or in part by the Holder to any person or entity upon written notice to
the Company in substantially the form as
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Exhibit C hereto. The transfer shall be recorded on the books of the Company
upon the surrender of this Warrant, properly endorsed, to the Company at its
principal offices. In the
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event of a partial transfer, the Company shall issue to the holders one or more
appropriate new warrants.
9. Covenants of the Company. The Company covenants and agrees that all
shares which may be issued upon conversion of this Warrant will, upon issuance,
be duly authorized and issued, fully paid, nonassessable and free from all
taxes, liens and charges with respect to the issue thereof. The Company further
covenants and agrees that the Company will at all times have authorized, and
reserved for the purpose of issue upon exercise hereof, a sufficient number of
shares of its Common Stock to provide for the exercise of this Warrant.
10. Certain Notices. The Holder shall be entitled to receive from the
Company immediately upon declaration thereof and at least ten (10) business days
prior to the record date for determination of shareholders entitled thereto or
to vote thereon (or if no record date is set, prior to the event), written
notice of any event which could require an adjustment pursuant to Section 5
hereof or of the dissolution or liquidation of the Company. All notices
hereunder shall be in writing and shall be delivered personally or by telecopy
(receipt confirmed) to such party (or, in the case of an entity, to an executive
officer of such party) or shall be sent by a reputable express delivery service
or by certified mail, postage prepaid with return receipt requested, addressed
as follows:
if to Holder, to:
Xxxxxxxx X. Xxxxxxx
Venture Soft Co., Ltd.
Imperial Tower 14th Floor
0-0-0 Xxxxxxxxxxxxx
Xxxxxxx Xx, Xxxxx 000-0000
Xxxxx
if to the Company to:
Xxxx Xxx Media
00000 Xxxxxxx Xxxx. Xxxxx 000
Xxxxxx, XX 00000
Any party may change the above-specified recipient and/or mailing address
by notice to all other parties given in the manner herein prescribed. All
notices shall be deemed given on the day when actually delivered as provided
above (if delivered personally or by telecopy) or on the day shown on the return
receipt (if delivered by mail or delivery service).
11. Miscellaneous.
(a) No amendment, modification or waiver of any provision of this
Warrant shall be effective unless the same shall be in writing and signed
by the holder hereof.
(b) This Warrant shall be governed by and construed in accordance with
the laws of the State of Colorado.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its authorized officer and dated as of the date stated above.
XXXX XXX MEDIA, INC.
By:
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Title:
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Exhibit A
NOTICE OF EXERCISE OF WARRANT -- To Be Executed by the Registered Holder
----------------------------- in Order to Exercise the Warrant
The undersigned hereby irrevocably elects to exercise the attached Warrant
to purchase, for cash pursuant to Section 2 thereof, shares of
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Common Stock issuable upon the exercise of such Warrant. The undersigned
requests that certificates for such shares be issued in the name of
. If this Warrant is not fully exercised, the
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undersigned requests that a new Warrant to purchase the balance of shares
remaining purchasable hereunder be issued in the name of
.
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Date:
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[name of registered Holder]
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[signature]
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[street address]
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[city, state, zip]
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[tax identification number]
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Exhibit B
NOTICE OF CONVERSION OF WARRANT -- To Be Executed by the Registered Holder
------------------------------- in Order to Convert the Warrant on a
Cashless Basis
The undersigned hereby irrevocably elects to convert, on a cashless basis,
a total of shares of Common Stock otherwise purchasable upon
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exercise of the attached Warrant into such lesser number of shares of Common
Stock as determined by Section 3 of the Warrant. The undersigned requests that
certificates for such shares be issued in the name of
. If this Warrant is not fully converted, the
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undersigned requests that a new Warrant to purchase the balance of shares
remaining purchasable hereunder be issued in the name of
.
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Date:
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[name of registered Holder]
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[signature]
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[street address]
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[city, state, zip]
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[tax identification number]
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Exhibit C
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are
hereby assigned to
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(Please Print)
whose address is
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(Please Print)
Dated: , 200 .
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Holder's Signature:
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Holder's Address:
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Signature Guaranteed:
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, 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 Warrant.
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