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EXHIBIT 10.32
Execution Copy
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES
OR BLUE SKY LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD,
ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER SAID ACT AND UNDER APPLICABLE STATE SECURITIES OR BLUE SKY LAWS OR
EXEMPTIONS FROM SUCH REGISTRATION. THIS WARRANT MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT UPON THE CONDITIONS SPECIFIED IN
THIS WARRANT, AND NO SALE, ASSIGNMENT, TRANSFER, OR OTHER DISPOSITION OF THIS
WARRANT SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL HAVE
BEEN COMPLIED WITH.
STOCK PURCHASE WARRANT
ISSUED TO
DELAWARE STATE EMPLOYEES' RETIREMENT FUND
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TABLE OF CONTENTS
Page
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1. Manner of Exercise; Issuance of Certificates; Payment for Shares . . . . . . . . . . . . . . . . . . . . . . 1
2. Period of Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Call Option of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Repurchase Obligation of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Certain Agreements of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Shares to be Fully Paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Reservation of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Listing of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(d) Certain Actions Prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Antidilution Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Issuance of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Treatment of Options and Convertible Securities; Computation of Consideration . . . . . . . . . . . 5
(c) Subdivisions and Combinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(d) Extraordinary Dividends and Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(e) Computation of Market Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(f) Record Date Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(g) Minimum Adjustment of Exercise Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(h) Reorganization, Reclassification, Consolidation, Merger, or Sale . . . . . . . . . . . . . . . . . . 11
(i) No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(j) Other Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5. No Rights or Liabilities as a Shareholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6. Transfer, Exchange, and Replacement of Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Warrant Not Transferable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Replacement of Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(c) Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(d) Exercise or Transfer Without Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(e) Expenses of Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(b) Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(c) Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES
OR BLUE SKY LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD,
ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER SAID ACT AND UNDER APPLICABLE STATE SECURITIES OR BLUE SKY LAWS OR
EXEMPTIONS FROM SUCH REGISTRATION. THIS WARRANT MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT UPON THE CONDITIONS SPECIFIED IN
THIS WARRANT, AND NO SALE, ASSIGNMENT, TRANSFER, OR OTHER DISPOSITION OF THIS
WARRANT SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL HAVE
BEEN COMPLIED WITH.
No. DE-01 Right to Purchase 775,000 Shares
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Delaware State Employees'
Retirement Fund (the "Original Holder"), or registered successors or assigns,
is entitled to purchase from Source Media, Inc., a Delaware corporation (the
"Company"), at any time or from time to time during the period specified in
Paragraph 2 hereof, 775,000 fully paid and nonassessable shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), at an
exercise price per share of $6.00 (the "Exercise Price"). The term "Warrant
Shares", as used herein, refers to the shares of Common Stock purchasable
hereunder. The Warrant Shares and the Exercise Price are subject to adjustment
as provided in Paragraph 4 hereof.
This Warrant is subject to the following terms, provisions, and
conditions:
1. Manner of Exercise; Issuance of Certificates; Payment for
Shares. Subject to the provisions hereof, this Warrant may be exercised by the
holder hereof, in whole or in part (but not as to a fractional Warrant Share),
by the surrender of this Warrant, together with a completed Exercise Agreement
in the form attached hereto, to the Company during normal business hours on any
business day at the Company's principal office at 0000 Xxxxxx Xxxx Xxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000 (or such other office or agency of the Company as it
may designate by notice to the holder hereof), and upon payment to the Company
of the Exercise Price for the Warrant Shares specified in said Exercise
Agreement. The Warrant Shares so purchased shall be deemed to be issued to the
holder hereof or its designee as the record owner of such shares as of the
close of business on the date on which this Warrant shall have been
surrendered, the completed Exercise Agreement delivered, and payment made for
such shares as aforesaid. Certificates for the Warrant Shares so purchased,
representing the aggregate number of shares
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specified in said Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding seven business days, after this Warrant
shall have been so exercised. The certificates so delivered shall be in such
denominations as may be requested by the holder hereof and shall be registered
in the name of said holder. If this Warrant shall have been exercised only in
part, then, unless this Warrant has expired, the Company shall, at its expense,
at the time of delivery of said certificates, deliver to said holder a new
Warrant representing the number of shares with respect to which this Warrant
shall not then have been exercised. The Company shall pay all taxes and other
expenses and charges payable in connection with the preparation, execution, and
delivery of stock certificates (and any new Warrants) pursuant to this
Paragraph 1 except that, in case such stock certificates shall be registered in
a name or names other than the holder of this Warrant, funds sufficient to pay
all stock transfer taxes which shall be payable in connection with the
execution and delivery of such stock certificates shall be paid by the holder
hereof to the Company at the time of the delivery of such stock certificates by
the Company as mentioned above.
Payment of the Exercise Price may be made by either of the following
methods:
(i) Cash Exercise. By payment to the Company of the
Exercise Price in cash or by certified or official bank check, for
each share being purchased;
(ii) Surrender of Notes. By surrender to the Company for
cancellation of any Note or Notes (as such terms are defined in that
certain Amended and Restated Note Agreement, dated as of March 31,
1997 (the "Amended and Restated Note Agreement"), among the Company,
IT Network, Inc., the Original Holder and the other Purchasers named
therein), or any portion of a Note, for which credit shall be given
toward the Exercise Price on a dollar-for-dollar basis with reference
to the principal amount and accrued but unpaid interest cancelled;
(iii) Net Issue Exercise. By an election to receive shares
the aggregate fair market value of which as of the date of exercise is
equal to the fair market value of this Warrant (or the portion thereof
being exercised) on such date, in which event the Company, upon
receipt of notice of such election, shall issue to the holder hereof a
number of shares of Common Stock equal to (A) the number of shares of
Common Stock acquirable upon exercise of all or any portion of this
Warrant being exercised, as at such date, multiplied by (B) the
balance remaining after deducting (x) the Exercise Price, as in effect
on such date, from (y) the market price of one share of Common Stock
as at such date (determined as provided in Paragraph 4(e) hereof) and
dividing the result by (C) such market price; provided, however, that
payment of the Exercise Price pursuant to this method may be made only
to the extent that the aggregate outstanding principal amount of the
Notes held by the holder of this Warrant on the date of such election
has been paid in full; or
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(iv) Combined Payment Method. By satisfaction of the
Exercise Price for such shares acquired in combination of the methods
described in clauses (i), (ii) or (iii).
2. Period of Exercise. Subject to the provisions of Paragraphs
2(a) and (b) below, this Warrant is exercisable at any time after the date
hereof, and before 5:00 p.m., Dallas time, on March 31, 2004.
(a) Call Option of the Company .
(i) Subject to the satisfaction in full of the
conditions set forth in subparagraph (ii) below, at any time
after the second anniversary of the date hereof, the Company
may, by written notice to the holder of this Warrant (the
"Call Notice"), elect to purchase this Warrant (or any new
Warrant then held by such holder representing the number of
shares with respect to which this Warrant shall not have been
exercised), in whole, on the Effective Date of Call (as
defined below), at a cash price for this Warrant equal to the
product of (x) $.01 multiplied by (y) the number of shares
with respect to which this Warrant shall not have been
exercised on such date. As used in this Paragraph 2(a), the
term "Effective Date of Call" shall mean the later of (x) 60
days from the date of the Call Notice or (y) 60 days from the
date a registration statement covering the Warrant Shares
shall have become effective, which registration statement was
filed by the Company upon the receipt of requests made
(including a request made by the holder of this Warrant) prior
to the Effective Date of Call and pursuant to the Amended and
Restated Registration Rights Agreement dated as of the date
hereof, among the Company, the Original Holder and the other
persons named therein.
(ii) The Company's right to exercise the purchase
option referred to in subparagraph (i) above is conditional
upon the last reported sales price of the Common Stock
(determined as provided in Paragraph 4(e) hereof) having being
equal to at least 200% of the Exercise Price then in effect
for 30 of the 40 consecutive Trading Days (as defined below)
immediately prior to the date of the Call Notice.
(iii) If the conditions referred to above have been
satisfied in full (including, without limitation, the giving
of a Call Notice), the holder shall present this Warrant to
the Company at its office referred to in Paragraph 1 hereof on
the Effective Date of Call, and upon surrender thereof shall
be entitled to receive the cash price to which such holder is
entitled, by wire transfer of immediately available funds to
an account designated by the holder hereof or by delivery to
such holder of a certified or official bank check in New York
Clearing House Funds payable to the order of such
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holder. Notwithstanding anything to the contrary implied in
this Paragraph 2(a), until the Effective Date of Call the
holder of this Warrant shall continue to be entitled to
exercise any and all of the rights granted to it herein.
(b) Repurchase Obligation of the Company. If at any time
there occurs a Change of Control (as defined in the Amended and
Restated Note Agreement), then the Company shall give to the holder of
this Warrant notice of such Change of Control within 5 days of its
occurrence. Not later than 60 days (the "Put Election Period") after
such notice by the Company, the holder of this Warrant (or any new
Warrant then held by such holder representing the number of shares
with respect to which this Warrant shall not have been exercised) may,
by written notice to the Company, elect to sell to the Company, and
the Company shall purchase from such holder, this Warrant, in whole,
at an aggregate cash price (the "Put Price") equal to the greater of
(x) the Net Warrant Market Price (as defined below) and (y)
$1,860,000. The holder shall present this Warrant to the Company at
its office referred to in Paragraph 1 hereof on or before the 30th day
following the expiration of the Put Election Period, and upon
surrender thereof shall be entitled to receive the cash price to which
such holder is entitled, by wire transfer of immediately available
funds to an account designated by the holder hereof or by delivery to
such holder of a certified or official bank check in New York Clearing
House Funds payable to the order of such holder. As used in this
Paragraph 2(b), the term "Net Warrant Market Price" shall mean an
amount equal to the product of (x) the number of shares with respect
to which this Warrant shall not have been exercised, multiplied by (y)
the difference between the market price per Warrant Share (determined
as provided in Paragraph 4(e) hereof) on the date of the Put Notice
and the Exercise Price then in effect.
3. Certain Agreements of the Company. The Company hereby
covenants and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will,
upon issuance, be validly issued, fully paid, and nonassessable.
(b) Reservation of Shares. During the period within
which this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of issue upon exercise
of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of this Warrant.
(c) Listing of Shares. If the issuance of any Warrant
Shares required to be reserved for purposes of exercise of this
Warrant requires listing on any national securities exchange before
such shares may be issued upon exercise of this Warrant, the Company
will, at its expense, use its best efforts to cause such
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shares to be listed on the relevant national securities exchange at
such time, so that such shares may be issued in accordance with the
terms hereof.
(d) Certain Actions Prohibited. The Company will not, by
amendment of its charter 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 to be observed or
performed by it hereunder, but will at all times in good faith assist
in the carrying out of all the provisions of this Warrant and in the
taking of all such action as may reasonably be requested by the holder
of this Warrant in order to protect the exercise privilege of the
holder of this Warrant against dilution or other impairment,
consistent with the tenor and purpose of this Warrant.
4. Antidilution Provisions. The Exercise Price shall be subject
to adjustment from time to time as provided in this Paragraph 4. Upon each
adjustment of the Exercise Price, the holder of this Warrant shall thereafter
be entitled to purchase, at the Exercise Price resulting from such adjustment,
the largest number of Warrant Shares obtained by multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of Warrant Shares
purchasable hereunder immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment. For
purposes of this Paragraph 4, the term "Capital Stock", as used herein,
includes the Common Stock and any additional class of stock of the Company
having no preference as to dividends or distributions on liquidation which may
be authorized in the future by an amendment to the Company's charter, provided
that the shares purchasable pursuant to this Warrant shall include only shares
of Common Stock, or shares resulting from any subdivision or combination of the
Common Stock, or in the case of any reorganization, reclassification,
consolidation, merger, or sale of the character referred to in Paragraph 4(i)
hereof, the stock or other securities or property provided for in said
Paragraph.
(a) Issuance of Capital Stock. If and whenever the
Company shall issue or sell any shares of Capital Stock without
consideration or for a consideration per share less than the Exercise
Price in effect immediately prior to the time of such issue or sale,
then, forthwith upon such issue or sale, the Exercise Price shall be
reduced to a price (calculated to the nearest cent) determined by
dividing (x) an amount equal to the aggregate consideration received
by the Company upon such issue or sale, by (y) the total number of
shares of Capital Stock so issued or sold.
(b) Treatment of Options and Convertible Securities;
Computation of Consideration. For the purposes of Paragraph 4(a)
hereof the following provisions shall also be applicable:
(i) If at any time the Company shall grant any
rights to subscribe for or purchase, or any options for the
purchase of, Capital Stock or
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securities convertible into or exchangeable for Capital Stock
(such rights and options being herein called "Options" and
such convertible or exchangeable securities being herein
called "Convertible Securities"), whether or not such Options
or the rights to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per
share for which Capital Stock is issuable upon the exercise of
such Options or upon the conversion or exchange of such
Convertible Securities shall be less than the Exercise Price
in effect immediately prior to the time of the granting of
such Options, then the total maximum number of shares of
Capital Stock issuable upon the exercise of such Options or
upon the conversion or exchange of the total maximum amount of
such Convertible Securities issuable upon the exercise of such
Options shall (as of the date of granting of such Options) be
deemed to be outstanding and to have been issued and sold for
such price per share. For purposes of this paragraph 4(b)(i)
the price per share for which such Capital Stock is issuable
shall be determined by dividing (x) the total amount, if any,
received or receivable by the Company as consideration for the
granting of such Options, plus the minimum aggregate amount of
additional consideration payable to the Company upon the
exercise of such Options, plus, in the case of any such
Options which relate to Convertible Securities, the minimum
aggregate amount of additional consideration, if any, other
than such Convertible Securities, payable to the Company upon
the conversion or exchange of such Convertible Securities, by
(y) the total maximum number of shares of Capital Stock
issuable upon the exercise of such Options or upon the
conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options. Except as
provided in Paragraph 4(b)(vi) hereof, no further adjustments
of the Exercise Price shall be made upon the actual issue of
such Capital Stock or of such Convertible Securities upon the
exercise of such Options or upon the actual issue of such
Capital Stock upon the conversion or exchange of such
Convertible Securities.
(ii) If at any time the Company shall issue or
sell Convertible Securities, whether or not the rights to
convert or exchange such Convertible Securities are
immediately exercisable, and the price per share for which
Capital Stock is issuable upon the conversion or exchange of
such Convertible Securities shall be less than the Exercise
Price in effect immediately prior to the time of the issue or
sale of such Convertible Securities, then the total maximum
number of shares of Capital Stock issuable upon the conversion
or exchange of all such Convertible Securities shall (as of
the date of the issue or sale of such Convertible Securities)
be deemed to be outstanding and to have been issued and sold
for such price per share, provided that (a) except as provided
in Paragraph 4(b)(vi) hereof, no further adjustments of the
Exercise Price shall be made upon the actual
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issue of such Capital Stock upon the conversion or exchange of
such Convertible Securities, and (b) if any such issue or sale
of such Convertible Securities is made upon exercise of any
Options for which adjustments of the Exercise Price have been
or are to be made pursuant to other provisions of this
Paragraph 4(b), no further adjustment of the Exercise Price
shall be made by reason of such issue or sale. For purposes
of this Paragraph 4(b)(ii), the price per share for which
Capital Stock is issuable shall be determined by dividing (x)
the total amount received or receivable by the Company as
consideration for the issue or sale of such Convertible
Securities, plus the minimum aggregate amount of additional
consideration, if any, other than such Convertible Securities,
payable to the Company upon the conversion or exchange
thereof, by (y) the total maximum number of shares of Capital
Stock issuable upon the conversion or exchange of all such
Convertible Securities.
(iii) If at any time the Company shall pay a
dividend or make any other distribution upon the Capital Stock
payable in Capital Stock or Convertible Securities, any
Capital Stock or Convertible Securities, as the case may be,
issuable in payment of such dividend or distribution shall be
deemed to have been issued without consideration, and the
Exercise Price shall be reduced as if the Company had
subdivided the outstanding shares of Capital Stock into a
greater number of shares as provided in Paragraph 4(c) hereof.
(iv) If at any time any Capital Stock, Convertible
Securities, or Options shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the
amount received by the Company therefor, without deduction
therefrom of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Company in
connection therewith. If any Capital Stock, Convertible
Securities, or Options shall be issued or sold for a
consideration other than cash, the amount of the consideration
other than cash received by the Company therefor shall be
deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the
Company, except where such consideration consists of
securities, in which case the amount of consideration received
by the Company shall be the market price thereof (determined
as provided in Paragraph 4(e) hereof) as of the date of
receipt, but in each such case without deduction therefrom of
any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Company in connection
therewith. In computing the market price of a note or other
obligation that is not listed or admitted to trading on any
securities exchange or quoted in the Nasdaq Stock Market or
reported by the National Quotation Bureau, Inc. or a similar
reporting organization, the total consideration to be received
by the Company thereunder (including interest) shall
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be discounted to present value at the prime rate announced or
published in The Wall Street Journal under the caption "Money
Rate" in effect at the time the note or obligation is deemed
to have been issued. If any Capital Stock, Convertible
Securities, or Options shall be issued in connection with any
merger of another corporation into the Company, the amount of
consideration therefor shall be deemed to be the fair value as
determined in good faith by the Board of Directors of the
Company of such portion of the assets of such merged
corporation as the Board shall determine to be attributable to
such Capital Stock, Convertible Securities, or Options.
(v) In case at any time the Company shall take a
record of the holders of Capital Stock for the purpose of
entitling them (a) to receive a dividend or other distribution
payable in Capital Stock or Convertible Securities, or (b) to
subscribe for or purchase Capital Stock or Convertible
Securities, then such record date shall be deemed to be the
date of the issue or sale of such Capital Stock or Convertible
Securities.
(vi) If the purchase price provided for in any
Option referred to in Paragraph 4(b)(i) hereof, or the price
at which any Convertible Securities referred to in Paragraph
4(b)(i) or (ii) hereof are convertible into or exchangeable
for Capital Stock, shall change at any time (whether by reason
of provisions designed to protect against dilution or
otherwise), the Exercise Price then in effect hereunder shall
forthwith be increased or decreased to such Exercise Price as
would have obtained had the adjustments made upon the issuance
of such Options or Convertible Securities been made upon the
basis of (a) the issuance of the number of shares of Capital
Stock theretofore actually deliv- ered upon the exercise of
such Options or upon the conversion or exchange of such
Convertible Securities, and the total consideration received
therefor, and (b) the number of shares of Capital Stock to be
issued for the consideration, if any, received by the Company
therefor and to be received on the basis of such changed
price.
(vii) If any adjustment has been made in the
Exercise Price because of the issuance of Options or
Convertible Securities and if any of such Options or rights to
convert or exchange such Convertible Securities expire or
otherwise terminate, then the Exercise Price shall be
readjusted to eliminate the adjustments previously made in
connection with the Options or rights to convert or exchange
Convertible Securities which have expired or terminated.
(viii) The number of shares of Capital Stock
outstanding at any given time shall not include shares owned
or held by or for the account of the Company, and the
disposition of any such shares shall be considered an issue or
sale of Capital Stock.
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(ix) Anything in Paragraph 4(a) or (b) hereof to
the contrary notwithstanding, the Company shall not be
required to make any adjustment of the Exercise Price in the
case of (a) the issuance of the Warrants or any other warrant
issued to the holder hereof, (b) the issuance of shares of
Common Stock upon exercise of the Warrants or any other
warrant issued to the holder hereof, (c) the granting of stock
options by the Company to employees or directors of the
Company or any of its subsidiaries in connection with their
employment or service as directors to purchase Capital Stock,
provided that the exercise price of such stock options is at
least equal to the market price of such shares of Capital
Stock on the date such stock options are granted and the total
number of such options granted after the date hereof does not
exceed the sum of (X) ten percent of the outstanding Common
Stock of the Company and (Y) the number of such employee or
director options outstanding on the date hereof that, on the
date in question, have expired or been cancelled, (d) the
issuance of shares of Capital Stock upon the exercise of the
stock options referred to in clause (c) above, and (e) the
issuance of shares of Capital Stock upon the exercise,
conversion, or exchange of any securities issued prior to or
simultaneously with the date of the original issue of this
Warrant.
(c) Subdivisions and Combinations. In case at any time
the Company shall subdivide the outstanding shares of Capital Stock
into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision shall be proportionately
reduced, and conversely, in case the outstanding shares of Capital
Stock shall be combined into a smaller number of shares, the Exercise
Price in effect immediately prior to such combination shall be
proportionately increased. An adjustment made pursuant to this
Paragraph 4(c) shall become effective immediately after the effective
date of such subdivision or combination.
(d) Extraordinary Dividends and Distributions. If at any
time the Company shall pay a dividend or make a distribution to all
holders of Capital Stock, as such, which dividend or distribution is
payable otherwise than in cash out of earnings or earned surplus and
otherwise than in Capital Stock, Convertible Securities, or Options,
then thereafter the holder of this Warrant, upon the exercise of this
Warrant, shall be entitled to receive the number of shares of Common
Stock being purchased upon such exercise and, in addition thereto and
without further payment, the stock and other securities and property
(including cash) which such holder would have received by way of
dividends or distributions (otherwise than in cash out of earnings or
earned surplus or in Capital Stock, Convertible Securities, or
Options) as if continuously, since the date of the original issue of
this Warrant, such holder (i) had been the record holder of the number
of shares of Common Stock then being purchased, and (ii) had retained
all dividends and distributions in stock or other securities (other
than Capital Stock, Convertible Securities, or Options) which would
have been paid in respect of such Common
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Stock or in respect of any stock or other securities which would have
been paid as dividends or distributions on such Common Stock.
(e) Computation of Market Price. For the purpose of any
computation under Paragraphs 2(a), 2(b) and 4(b) hereof, the market
price of the security in question on any day shall be deemed to be the
average of the last reported sale prices for the security for the 20
consecutive Trading Days beginning 30 Trading Days before the day in
question. The last reported sale price for each day shall be (i) the
last reported sale price of the security on the Nasdaq Stock Market's
National Market, or any similar system of automated dissemination of
quotations of securities prices then in common use, if so quoted, or
(ii) if not quoted as described in clause (i) above, the mean between
the high bid and low asked quotations for the security as reported by
the National Quotation Bureau, Inc. if at least two securities dealers
have inserted both bid and asked quotations for such security on at
least 10 of such 20 consecutive Trading Days, or (iii) if the security
is listed or admitted for trading on any national securities exchange,
the last sale price, or the closing bid price if no sale occurred, of
such class of security on the principal securities exchange on which
such class of security is listed or admitted to trading. If the
security is quoted on a national securities or central market system,
in lieu of a market or quotation system described above, the last
reported sale price shall be determined in the manner set forth in
clause (ii) of the preceding sentence if bid and asked quotations are
reported but actual transactions are not, and in the manner set forth
in clause (iii) of the preceding sentence if actual transactions are
reported. If none of the conditions set forth above is met, the last
reported sale price of the security on any day or the average of such
last reported sale prices for any period shall be the fair market
value of such security as determined by a member firm of the New York
Stock Exchange, Inc. selected by the Company. The term "Trading
Days", as used herein, means (i) if the security is quoted on the
Nasdaq Stock Market's National Market, or any similar system of
automated dissemination of quotations of securities prices, days on
which trades may be made on such system or (ii) if the security is
listed or admitted for trading on any national securities exchange,
days on which such national securities exchange is open for business.
(f) Record Date Adjustments. In any case in which this
Paragraph 4 requires that a downward adjustment of the Exercise Price
shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (A) issuing
to the holder of this Warrant exercised after such record date and
before the occurrence of such event the additional Warrant Shares
issuable upon such exercise by reason of the adjustment required by
such event over and above the Warrant Shares issuable upon such
exercise before giving effect to such adjustment and (B) paying to
such holder any amount in cash in lieu of a fractional share pursuant
to Paragraph 4(i) hereof.
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(g) Minimum Adjustment of Exercise Price. No adjustment
of the Exercise Price shall be made in an amount less than $.10 per
share in effect at the time such adjustment is otherwise required to
be made, 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 adjustments so carried forward,
shall amount to not less than $.10 per share. In case at any time the
Company shall issue Capital Stock by way of dividend on Capital Stock
or subdivide or combine the outstanding shares of Capital Stock, said
amount of $.10 per share (as theretofore increased or decreased, if
the said amount shall have been adjusted in accordance with the
provisions of this Paragraph 4(g)) shall forthwith be proportionately
increased in the case of such a combination or decreased in the case
of such a subdivision or stock dividend so as appropriately to reflect
the same.
(h) Reorganization, Reclassification, Consolidation,
Merger, or Sale. If any capital reorganization of the Company, or any
reclassification of the Capital Stock, or any consolidation or merger
of the Company with or into another corporation or entity, or any sale
of all or substantially all the assets of the Company to another
corporation or entity, shall be effected in such a way that the
holders of Common Stock (or any other securities of the Company then
issuable upon the exercise of this Warrant) shall be entitled to
receive stock or other securities or property (including cash) with
respect to or in exchange for Common Stock (or such other securities),
then lawful and adequate provision shall be made whereby the holder of
this Warrant shall thereafter have the right to purchase and receive
upon the basis and upon the terms and conditions specified in this
Warrant, and in lieu of the shares of Common Stock (or such other
securities) immediately theretofore purchasable and receivable upon
the exercise hereof, such stock or other securities or property
(including cash) as may be issuable or payable with respect to or in
exchange for a number of outstanding shares of Common Stock (or such
other securities) equal to the number of shares of Common Stock (or
such other securities) immediately theretofore purchasable and
receivable upon the exercise of this Warrant, had such reorganization,
reclassification, consolidation, merger, or sale not taken place. In
any such case appropriate provision shall be made with respect to the
rights and interests of the holder of this Warrant to the end that the
provisions hereof (including, without limitation, the provisions for
adjustments of the Exercise Price and of the number of Warrant Shares
purchasable upon exercise hereof) shall thereafter be applicable, as
nearly as reasonably may be, in relation to the stock or other
securities or property thereafter deliverable upon the exercise
hereof. In the event of a consolidation or merger of the Company with
or into another corporation or entity as a result of which a greater
or lesser number of shares of common stock of the surviving
corporation or entity are issuable to holders of Capital Stock in
respect of the number of shares of Capital Stock outstanding
immediately prior to such consolidation or merger, then the Exercise
Price in effect immediately prior to such
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consolidation or merger shall be adjusted in the same manner as though
there were a subdivision or combination of the outstanding shares of
Capital Stock.
(i) No Fractional Shares. No fractional shares of Common
Stock are to be issued upon the exercise of this Warrant, but the
Company shall pay a cash adjustment in respect of any fractional share
which would otherwise be issuable in an amount equal to the same
fraction of the current market value of a share of Common Stock, which
current market value shall be the last reported sale price (determined
as provided in Paragraph 4(e) hereof) on the Trading Day immediately
preceding the date of the exercise.
(j) Other Notices. If at any time:
(i) the Company shall declare any dividend upon
the Capital Stock payable in shares of stock of any class or
make any other distribution (other than dividends or
distributions payable in cash out of earnings or earned
surplus) to the holders of the Capital Stock;
(ii) the Company shall offer for subscription pro
rata to the holders of the Capital Stock any additional shares
of stock of any class or other rights;
(iii) there shall be any capital reorganization of
the Company, or reclassification of the Capital Stock, or
consolidation or merger of the Company with or into, or sale
of all or substantially all its assets to, another corporation
or entity; or
(iv) there shall be a voluntary or involuntary
dissolution, liquidation, or winding-up of the Company;
then, in each such case, the Company shall promptly give to the holder
of this Warrant (a) notice of the date on which the books of the
Company shall close or a record shall be taken for determining the
holders of Capital Stock entitled to receive any such dividend,
distribution, or subscription rights or for determining the holders of
Capital Stock entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up, notice of the date (or, if
not then known, a reasonable approximation thereof by the Company)
when the same shall take place. Such notice shall also specify the
date on which the holders of Capital Stock shall be entitled to
receive such dividend, distribution, or subscription rights or to
exchange their Capital Stock for stock or other securities or property
deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, or winding-up, as the case may
be. Failure
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to give any such notice or any defect therein shall not affect the
validity of the proceeding referred to in clauses (i), (ii), (iii),
and (iv) above.
5. No Rights or Liabilities as a Shareholder. This Warrant shall
not entitle the holder hereof to any voting rights or other rights as a
shareholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the holder hereof to purchase Warrant Shares, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the Exercise Price or as a shareholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
6. Transfer, Exchange, and Replacement of Warrant.
(a) Warrant Not Transferable. You agree that this
Warrant may not be transferred, sold, assigned or hypothecated, except
to (i) your wholly-owned subsidiaries or affiliates (as defined by the
Securities Exchange Act of 1934); (ii) the respective successors to
you in a merger or consolidation; (iii) the respective purchasers of
all or substantially all of your assets; (iv) your respective
shareholders in the event you are liquidated or dissolved; (v) any one
or more financial institutions (including, without limitation, any
banks, investment banking firms, investment funds and insurance
companies); or (vi) any other person or entity with respect to whom
you have received the prior written consent of the Company. It is not
a condition to the transfer of this Warrant that it be transferred in
connection with a transfer of a Note. Until due presentment for
registration of a permitted transfer on the Company's books, the
Company may treat the registered holder hereof as the owner and holder
hereof for all purposes, and the Company shall not be affected by any
notice to the contrary.
(b) Replacement of Warrant. Upon receipt of evidence
reasonably 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 an indemnity
agreement reasonably satisfactory in form and amount to the Company,
or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver, in
lieu thereof, a new Warrant of like tenor.
(c) Register. The Company shall maintain, at its
principal office at 0000 Xxxxxx Xxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000 (or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this
Warrant, in which the Company shall record the name and address of the
person in whose name this Warrant has been issued, as well as the name
and address of each permitted transferee and each prior owner of this
Warrant.
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(d) Exercise or Transfer Without Registration. Anything
in this Warrant to the contrary notwithstanding, if, at the time of
the surrender of this Warrant in connection with any exercise,
transfer, or exchange of this Warrant, this Warrant shall not be
registered under the Securities Act of 1933, as amended, and under
applicable state securities or blue sky laws, the Company may require,
as a condition of allowing such exercise, transfer, or exchange, that
the holder of this Warrant execute and deliver to the Company a
seller's Rule 144 representation letter in form and substance
reasonably acceptable to the Company. The first holder of this
Warrant, by taking and holding the same, represents to the Company
that such holder is acquiring this Warrant for investment and not with
a view to the distribution thereof.
(e) Expenses of Transfer. The Company shall pay all
taxes (other than those imposed on or in respect of income), other
expenses and charges payable in connection with the preparation,
execution, and delivery of any Warrants issued or prepared by the
Company in connection with this Paragraph 6.
7. Notices. All notices, requests, and other communications
required or permitted to be given or delivered hereunder to the holder of this
Warrant shall be in writing, and shall be personally delivered, or shall be
sent by certified or registered mail, postage prepaid and addressed, to such
holder at the address shown for such holder on the books of the Company, or at
such other address as shall have been furnished to the Company by notice from
such holder. All notices, requests, and other communications required or
permitted to be given or delivered hereunder to the Company shall be in
writing, and shall be personally delivered, or shall be sent by certified or
registered mail, postage prepaid and addressed, to the office of the Company at
0000 Xxxxxx Xxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: President,
or at such other address as shall have been furnished to the holder of this
Warrant by notice from the Company. Any such notice, request, or other
communication may be sent by telegram or telex, but shall in such case be
subsequently confirmed by a writing personally delivered or sent by certified
or registered mail as provided above. All notices, requests, and other
communications shall be deemed to have been given either at the time of the
delivery thereof to (or the receipt by, in the case of a telegram or telex) the
person entitled to receive such notice at the address of such person for
purposes of this Paragraph 7, or, if mailed, at the completion of the third
full day following the time of such mailing thereof to such address, as the
case may be.
8. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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9. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof
may not be changed, waived, discharged, or terminated orally, but only
by an instrument in writing signed by the party (or any predecessor in
interest thereof) against which enforcement of the same is sought.
(b) Descriptive Headings. The descriptive headings of
the several paragraphs of this Warrant are inserted for purposes of
reference only, and shall not affect the meaning or construction of
any of the provisions hereof.
(c) Successors and Assigns. This Warrant shall be
binding upon any entity succeeding to the Company by merger,
consolidation, or acquisition of all or substantially all the
Company's assets.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer on this 9th day of April, 1997.
SOURCE MEDIA, INC.
By:/s/ XXXXXXX X. XXXX
----------------------------
Xxxxxxx X. Xxxx
Chief Financial Officer
and Treasurer
19
FORM OF EXERCISE AGREEMENT
Dated: ________________, 19__.
To:
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to purchase ____________________ shares of Common Stock
covered by such Warrant, and makes payment herewith in full therefor at the
price per share provided by such Warrant in the amount of
$____________________. Please issue a certificate or certificates for such
shares of Common Stock in the name of and pay any cash for any fractional share
to:
Name:
Signature:
Title of Signing Officer or Agent (if
any):
Note: The above signature should correspond exactly with the name on
the face of the within Warrant or with the name of the
assignee appearing in the assignment form.
and, if said number of shares of Common Stock shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the name
of said undersigned covering the balance of the shares purchasable thereunder
less any fraction of a share paid in cash.
20
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers all the rights of the undersigned under the within Warrant, with
respect to the number of shares of Common Stock covered thereby set forth
hereinbelow, to:
Name of Assignee Address No. of Shares
---------------- ------- -------------
, and hereby irrevocably constitutes and appoints __________________ as agent
and attorney-in-fact to transfer said Warrant on the books of the within-named
corporation, with full power of substitution in the premises.
Dated: ____________________, 19__.
In the presence of
Name:
Signature:
Title of Signing Officer or Agent (if
any):
Address:
Note: The above signature should
correspond exactly with the
name on the face of the
within Warrant.
