Exhibit 10.11 - Common Stock Purchase Warrant to Pet Edge, LLC dated
July 8, 2005.
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. NO SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT (i) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (ii) AN OPINION
OF COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED, OR (iii) RECEIPT OF A NO-ACTION LETTER(S) FROM THE
APPROPRIATE GOVERNMENTAL AUTHORITY(IES).
WARRANT TO PURCHASE
SHARES OF COMMON STOCK OF
MEDICAL MEDIA TELEVISION, INC.
Date of Issuance: July 8, 2005
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Expires: July 7, 2010 Number of Shares: 45,308
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This certifies that for value received XXXX X. XXXXXXX, or its permitted
registered assigns ("Holder"), is entitled, subject to the terms set forth
below, at any time before 5:00 p.m., E.S.T, on July 7, 2010 (the "Expiration
Date"), to purchase from Medical Media Television, Inc., a Florida corporation
(the "Company"), up to Forty-five thousand three hundred eight (45,308) shares
of the common stock, par value $.0005 per share, of the Company ("Common Stock")
at the price of fifteen cents ($0.15) per share (the "Purchase Price"), upon
surrender of this Warrant at the principal office of the Company referred to
below, with the subscription form attached hereto as Exhibit "A" (the
"Subscription Form") duly executed, and simultaneous payment therefor in the
manner specified in Section 1 hereof. The Purchase Price and the number of
Warrant Shares (as defined below) purchasable hereunder are subject to
adjustment as provided in Section 3 of this Warrant.
As used herein, (i) "Exercise Date" shall mean the particular date (or
dates) on which this Warrant is exercised, (ii) "Issue Date" shall mean July 8,
2005 (iii) "Warrant" shall include this Warrant and any warrant delivered in
substitution or exchange therefor as provided herein and (iv) "Warrant Shares"
shall mean any shares of Common Stock acquired by Holder upon exercise of this
Warrant.
1. Exercise.
(a) This Warrant may be exercised, in whole or in part, at any time
or from time to time prior to the Expiration Date, by surrendering it at the
principal office of the Company, 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxx, Xxxxxxx
00000, together with a completed and executed Subscription Form and a certified
or cashier's check in an amount equal to the product of (i) the number of
Warrant Shares purchased and (ii) the Purchase Price.
(b) This Warrant may be exercised for less than the full number of
Warrant Shares represented by this Warrant. Upon such partial exercise, this
Warrant shall be surrendered, and a new Warrant of the same tenor and for the
purchase of the Warrant Shares not purchased upon such exercise shall be issued
to Holder by the Company.
(c) A Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the Warrant Shares issuable
upon such exercise shall be treated for all purposes as the holder of such
shares of record as of the close of business on such date. As soon as
practicable on or after such date, and in any event within ten (10) business
days thereafter, the Company shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the number of
Warrant Shares issuable upon such exercise, together with cash, in lieu of any
fraction of a share, equal to such fraction of the current fair market value of
one full share as reasonably determined in good faith by the Company's Board of
Directors (the "Board"). All Warrant Shares issued upon the exercise of this
Warrant shall be validly issued, fully paid and non-assessable.
(d) In the event that any portion of this Warrant is unexercised on
or before the Expiration Date, such portion of this Warrant shall automatically
expire, and the Holder shall have no rights with respect to such unexercised
portion of this Warrant.
2. Intentionally Omitted.
3. Adjustment of Purchase Price and Number of Shares. The number and kind
of securities purchasable upon the exercise of this Warrant and the Purchase
Price shall be subject to adjustment from time to time upon the occurrence of
certain events, as follows:
(a) Reclassification or Merger. In case of any reclassification,
change or conversion of securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination),
or in case of any merger of the Company with or into another corporation (other
than a merger with another corporation in which the Company is the acquiring and
the surviving corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this Warrant), or in
case of any sale of all or substantially all of the assets of the Company, the
Company, or such successor or purchasing corporation, as the case may be, shall
duly execute and deliver to the holder of this Warrant a new Warrant (in form
and substance satisfactory to the holder of this Warrant), so that the holder of
this Warrant shall have the right to receive, at a total purchase price not to
exceed that payable upon the exercise of the unexercised portion of this
Warrant, and in lieu of the shares of Common Stock theretofore issuable upon
exercise of this Warrant, the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification, change or
merger by a holder of the number of shares of Common Stock then purchasable
under this Warrant. Such new Warrant shall provide for adjustments that shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 3. The provisions of this Section 3.a. shall similarly apply to
successive reclassifications, changes, mergers and transfers.
(b) Subdivision or Combination of Shares. If at any time while this
Warrant remains outstanding and unexpired the Company shall subdivide or combine
its outstanding shares of Common Stock, the Purchase Price shall be
proportionately decreased in the case of a subdivision or increased in the case
of a combination, effective at the close of business on the date the subdivision
or combination becomes effective.
(c) Stock Dividends. If at any time while this Warrant is
outstanding and unexpired the Company shall pay a dividend with respect to its
Common Stock payable in Common Stock, then the Purchase Price shall be adjusted,
from and after the date of determination of stockholders entitled to receive
such dividend or distribution, to that price determined by multiplying the
Purchase Price in effect immediately prior to such date of determination by a
fraction (i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend, and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend.
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(d) Accountants' Certificate as to Adjustment. In each case of an
adjustment in the Warrant Shares receivable on the exercise of the Warrant, the
Company at its expense shall cause independent public accountants of recognized
standing selected by the Company (who may be the independent public accountants
then auditing the books of the Company) to compute such adjustment in accordance
with the terms of the Warrant and prepare a certificate setting forth such
adjustment and showing the facts upon which such adjustment is based. The
Company will forthwith mail a copy of each such certificate to each holder of a
Warrant at the time outstanding.
4. Exercise Restrictions. The Holder may not exercise the Warrant
hereunder to the extent such exercise would result in the Holder beneficially
owning (as determined in accordance with Section 13(d) of the Exchange Act and
the rules thereunder) in excess of 4.999% of the then issued and outstanding
shares of Common Stock, including shares issuable upon exercise of the Warrant
held by the Holder after application of this Section.
5. No Rights as Shareholder. Prior to the exercise of this Warrant, the
Holder shall not be entitled to any rights of a shareholder with respect to the
Warrant Shares, including without limitation the right to vote such Warrant
Shares, receive dividends or other distributions thereon, exercise preemptive
rights or be notified of stockholder meetings, and such Holder shall not be
entitled to any notice or other communication concerning the business or affairs
of the Company. However, nothing in this Section 5 shall limit the right of the
holder to be provided the notices required under this Warrant.
6. Compliance with Securities Act. The Holder of this Warrant, by
acceptance hereof, agrees that this Warrant and the Warrant Shares to be issued
upon exercise hereof are being acquired for investment and that such Holder will
not offer, sell or otherwise dispose of this Warrant, or any shares of Common
Stock to be issued upon exercise hereof except under circumstances which will
not result in a violation of the Securities Act. Upon exercise of this Warrant,
the Holder hereof shall confirm in writing, by executing the form attached
hereto as Exhibit A, that the Warrant Shares so purchased are being acquired for
investment and not with a view toward distribution or resale. This Warrant and
all shares of Common Stock issued upon exercise of this Warrant (unless
registered under the Securities Act) shall be stamped or imprinted with a legend
in substantially the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NO
SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (i) AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO, (ii) AN OPINION OF COUNSEL FOR
THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED, OR (iii) RECEIPT OF A NO-ACTION LETTER(S)
FROM THE APPROPRIATE GOVERNMENTAL AUTHORITY(IES)."
In addition, in connection with the issuance of this Warrant, the Holder
specifically represents to the Company by acceptance of this Warrant as follows:
(a) The Holder is aware of the Company's business affairs and
financial condition, and has acquired information about the Company sufficient
to reach an informed and knowledgeable decision to acquire this Warrant. The
Holder is acquiring this Warrant for its own account for investment purposes
only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act.
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(b) The Holder understands that this Warrant and the Warrant Shares
have not been registered under the Securities Act in reliance upon a specific
exemption therefrom, which exemption depends upon, among other things, the bona
fide nature of the Holder's investment intent as expressed herein.
(c) The Holder further understands that this Warrant and the Warrant
Shares must be held indefinitely unless subsequently registered under the
Securities Act and any applicable state securities laws, or unless exemptions
from registration are otherwise available.
(d) The Holder is aware of the provisions of Rule 144 and 144A,
promulgated under the Securities Act, which, in substance, permit limited public
resale of "restricted securities" acquired, directly or indirectly, from the
issuer thereof (or from an affiliate of such issuer), in a non-public offering
subject to the satisfaction of certain conditions, if applicable, including,
among other things: the availability of certain public information about the
Company, the resale occurring not less than one (1) year after the party has
purchased and paid for the securities to be sold; the sale being made through a
broker in an unsolicited "broker's transaction" or in transactions directly with
a market maker (as said term is defined under the Securities Exchange Act of
1934, as amended) and the amount of securities being sold during any three-month
period not exceeding the specified limitations stated therein.
(e) The Holder further understands that at the time it wishes to
sell this Warrant and the Warrant Shares there may be no public market upon
which to make such a sale, and that, even if such a public market then exists,
the Company may not be satisfying the current public information requirements of
Rule 144 and 144A, and that, in such event, the Holder may be precluded from
selling this Warrant and the Warrant Shares under Rule 144 and 144A even if the
one (1)-year minimum holding period had been satisfied.
7. Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it (in the exercise of reasonable discretion) of the ownership
of and the loss, theft, destruction or mutilation of any Warrant and (in the
case of loss, theft or destruction) of indemnity satisfactory to it (in the
exercise of reasonable discretion), and (in the case of mutilation) upon
surrender and cancellation thereof, the Company will execute and deliver in lieu
thereof a new Warrant of like tenor.
8. Transferability of Warrant. Subject to the provision hereof, this
Warrant may be transferred by the Holder with the consent of the Company, which
shall not be unreasonably withheld. If transferred pursuant to this paragraph,
this Warrant may be transferred on the books of the Company by the Holder hereof
in person or by duly authorized attorney, upon surrender of this Warrant at the
principal office of the Company, properly endorsed (by the Holder executing an
assignment in the form attached hereto as Exhibit "B") and upon payment of any
necessary transfer tax or other governmental charge imposed upon such transfer.
All Warrants issued on transfers or exchanges shall be dated as of the Issue
Date and shall be identical with this Warrant except as to the name of the
Holder or the number of shares of Warrant Stock, as applicable.
9. Reservation of Common Stock. The Company shall at all times reserve and
keep available for issue upon the exercise of the Warrant such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants.
10. Notices. All notices and other communications from the Company to the
Holder of this Warrant shall be mailed by first-class registered or certified
mail, postage prepaid, to the address furnished to the Company by Holder.
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11. Change; Waiver. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
12. Headings. The headings in this Warrant are for purposes of convenience
in reference only, and shall not be deemed to constitute a part hereof.
13. Law Governing. This Warrant is delivered in Florida and shall be
construed and enforced in accordance with and governed by the internal laws, and
not the law of conflicts, of such State.
14. Attorneys' Fees and Court Actions. If a legal action is initiated by
any party to this Agreement against another, arising out of or relating to the
alleged performance or non-performance of any right or obligation established
hereunder, or any dispute concerning the same, any and all fees, costs and
expenses reasonably incurred by each prevailing party or its legal counsel in
investigating, preparing for, prosecuting, defending against, or providing
evidence, producing documents or taking any other action in respect of, such
action shall be the joint and several obligation of, and shall be paid or
reimbursed by, the nonprevailing party.
IN WITNESS WHEREOF, the Issuer has executed this Warrant as of the day and
year first above written.
MEDICAL MEDIA TELEVISION, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
President and Chief Executive Officer
NOTICE TO FLORIDA RESIDENTS:
WHERE SALES ARE MADE TO FIVE OR MORE PERSONS IN FLORIDA (EXCLUDING CERTAIN
INSTITUTIONAL PURCHASERS DESCRIBED IN SECTION 517.061(7) OF THE FLORIDA
SECURITIES AND INVESTOR PROTECTION ACT) (THE "ACT"), ANY SUCH SALE MADE PURSUANT
TO SECTION 517.061(11) OF THE ACT SHALL BE VOIDABLE BY THE PURCHASER EITHER
WITHIN THREE DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH
PURCHASER TO THE ISSUER, OR AN AGENT OF THE ISSUER, OR AN ESCROW AGENT OR WITHIN
THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH
PURCHASER, WHICHEVER OCCURS LATER.
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EXHIBIT A
SUBSCRIPTION FORM
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant and purchases ____________ shares of the Common Stock of Medical
Media Television, Inc., a Florida corporation, purchasable with this Warrant,
and herewith makes payment therefor, all at the price and on the terms and
conditions specified in this Warrant.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account for investment purposes only, and not
for resale or with a view to distribution of such shares or any part thereof.
DATED:
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(Signature of Registered Owner)
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(Street Address)
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(City), (State), (Zip)
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EXHIBIT B
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of Common Stock set forth below:
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and does hereby irrevocably constitute and appoint ___________________________
to make such transfer on the books of Medical Media Television, Inc., a Florida
corporation, maintained for the purpose, with full power of substitution in the
premises.
DATED:
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(Signature)
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(Witness)
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