Common Stock Purchase Warrant
Exhibit
10.1
NEITHER
THIS WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE AND IS BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM
THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. NEITHER THIS
WARRANT NOR THE SHARES ISSUABLE ON THE EXERCISE HEREOF MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER SUCH SECURITIES LAWS, PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM.
To
Purchase 1,250,000 Shares Of Common Stock Of
This is
to certify, that FOR VALUE RECEIVED,
Recap
Marketing and Consulting, L.L.P.
A
Texas limited liability partnership
(the
“Holder”)
is
entitled to purchase, subject to the provisions of this Warrant from Integrated
Media Holdings, Inc. (the “Company”), a Delaware corporation, at any time up to
an including the expiration of five years after the date hereof (“Expiration
Date”), up to an aggregate of One Million Two Hundred and Fifty Thousand
(1,250,000) shares of the Company’s common stock, (“Common Stock”) at a purchase
price per share of one cent (US$.01) in currency of the United States of
America. The number of shares of Common Stock to be received upon the
exercise of this Warrant and the price to be paid for a share of Common Stock
may be adjusted from time to time as hereinafter set forth. The
shares of the Common Stock deliverable upon such exercise, and as adjusted from
time to time, are hereinafter sometimes referred to as “Warrant Shares” and the
exercise price of a share of Common Stock in effect at any time and as adjusted
from time to time is hereinafter sometimes referred to as the “Exercise
Price.” This Warrant represents the Warrants referred to in the
Purchaser Representation Letter (the “Purchaser Representation Letter”) entered
into between the Company and Recap Marketing and Consulting, L.L.P. effective as
of January 19, 2008.
1. Exercise of
Warrant. This Warrant may be exercised in whole or in part at
any time and from time to time up to an including the Expiration
Date.
If the date on which the Holder’s right
to purchase Common Stock expires is a day on which national banks in the United
States of America are authorized by law to close, then that right shall expire
on the next succeeding day that is not such a day. The Holder shall exercise all
rights to purchase Common Stock by presenting and surrendering this Warrant to
the Company, at 00000 Xxxxxxxxxx Xxxx Xxxxx 000 Xxxxxxx, XX 00000-0000, with the
Purchase Form annexed hereto duly executed and accompanied by payment of the
Exercise Price for the number of shares specified in such form. If this Warrant
should be exercised in part only, or if the Company should exercise any of its
Redemption Rights, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the right of the
Holder to purchase the balance of the shares purchasable hereunder. Upon receipt
by the Company of this Warrant, in proper form for exercise, with the Purchase
Form annexed hereto duly executed and accompanied by payment of the Exercise
Price for the number of shares specified in such form, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that certificates representing such shares of
Common Stock shall not then be actually delivered to the Holder. As soon as
practicable after each exercise of this Warrant, the Company will deliver the
shares issuable upon such exercise to the Holder.
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2. Relinquishment of
Options.
(a) The
Warrantholder in lieu of purchasing the entire number of shares subject to
purchase hereunder, shall have the right to relinquish all or any part of the
then unexercised portion of this Warrant (to the extent then exercisable) for a
number of shares of Common Stock to be determined in accordance with the
following provisions of this clause (a):
(i) The
number of shares of Common Stock, if any, issuable pursuant to such
relinquishment shall be the number of such shares, rounded to the next greater
number of full shares, as shall be equal to the quotient obtained by dividing
(A) the Appreciated Value by (B) the purchase price per share of Common Stock
specified in this Warrant;
(ii) For
the purpose of this clause (a), “Appreciated Value” means the excess of (x) the
aggregate current market value of the shares of Common Stock covered by the
option or the portion thereof to be relinquished over (y) the aggregate purchase
price for such shares specified in this Warrant;
(b) Such
right of relinquishment may be exercised only upon receipt by the Company of a
written notice of such relinquishment which shall be dated the date of election
to make such relinquishment; and that, for the purposes of this Warrant, such
date of election shall be deemed to be the date when such notice is sent by
registered or certified mail, or when receipt is acknowledged by the Company, if
mailed by other than registered or certified mail or if delivered by hand or by
any telegraphic communications equipment of the sender or otherwise delivered;
provided, that, in the event the method just described for determining such date
of election shall not be or remain consistent with the provisions of Section
16(b) of the Exchange Act or the rules and regulations adopted by the Commission
thereunder, as presently existing or as may be hereafter amended, which
regulations exempt from the operation of Section 16(b) of the Exchange Act in
whole or in part any such relinquishment transaction, then such date of election
shall be determined by such other method consistent with Section 16(b) of the
Exchange Act or the rules and regulations thereunder as the Company shall in its
discretion select and apply;
(c) The
“current market value” of a share of Common Stock on a particular date shall be
deemed to be its fair market value on that date as determined in accordance with
Paragraph 4; and
(d) The
Warrant, or any portion thereof, may be relinquished only to the extent that (A)
it is exercisable on the date written notice of relinquishment is received by
the Company, (B) the Holder pays, or makes provision satisfactory to the Company
for the payment of, any taxes which the Company is obligated to collect with
respect to such relinquishment.
(e) If
a Warrant is relinquished, such Warrant shall be deemed to have been exercised
to the extent of the number of shares of Common Stock covered by the Warrant or
part thereof which is relinquished, and no further Warrants will be isssued
covering such shares of Common Stock.
3. Issuance and
Delivery of Shares. The Company hereby represents, warrants
and agrees that at all times there shall be reserved for issuance and delivered
to the Holder the number of shares of Common Stock as shall be required for
issuance or delivery upon exercise of this Warrant.
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4. Fractional
Shares. No fractional shares or script representing fractional shares
shall be issued upon the exercise of this Option. With respect to any fraction
of a share called for upon any exercise hereof, the Company shall pay to the
Holder an amount in cash equal to such fraction multiplied by the current market
value of such fractional share, determined as follows:
(a) If
the Common Stock is listed on a national securities exchange or admitted to
unlisted trading privileges on such exchange, the current value shall be the
last reported sales price of the Common Stock on such exchange on the last
business day prior to the date of exercise of this Option or if no such sale is
made on such day, the average of the closing bid and asked prices for such day
on such exchange; or
(b) If
the Common Stock is not so listed or admitted to unlisted trading privileges,
the current value shall be the mean of the last reported bid and asked prices
reported by the National Association of Securities Dealers Automated Quotation
System (“NASDAQ”), or if not so quoted on NASDAQ then by the National Quotation
Bureau, LLC, New York, New York, on the last business day prior to the date of
the exercise of this Warrant; or
(c) If
the Common Stock is not so listed or admitted to unlisted trading privileges and
bid and asked prices are not so reported, the current value shall be an amount,
not less than book value, determined in such reasonable manner as may be
prescribed by the Company’s board of directors, and supported by the written
fairness opinion of an independent, nationally-recognized stock valuation
expert.
5. Transfer,
Assignment or Loss of Warrant.
(a) The
Holder may assign this Warrant, in whole or in part, or any interest herein.
This Warrant and the Warrant Shares have not been filed or registered with the
United States Securities and Exchange Commission or with the securities
regulatory authority of any state. This Warrant and the Warrant
Shares are subject to restrictions imposed by federal and state securities laws
and regulations on transferability and resale, and may not be transferred
assigned or resold except as permitted under the Securities Act of 1933, as
amended (the “Act”), and the applicable state securities laws, pursuant to
registration thereunder or exemption therefrom. Upon receipt by the Company of
evidence satisfactory to it that this Warrant or any portion hereof, has been
legally and validly transferred or assigned, the Company will, at the request of
the Holder, upon presentation and surrender hereof to the Company or at the
office of its stock transfer agent, if any, exchange this Warrant for one or
more Warrants, in such denominations as the Holder shall specify, registered in
such name or names as the Holder shall designate. If, at the time of such
transfer or assignment, this Warrant has not been registered under the Act, then
each such transferee and assignee shall furnish the Company with evidence
satisfactory to it that such transferee or assignee is acquiring such Warrant
for his, her or its own account, for investment purposes, and not with a view
towards a distribution thereof or of the Warrant Shares issuable upon its
exercise. The term “Warrant,” as used herein, includes any Warrants
issued in substitution for or replacement of this Warrant, or into which this
Warrant may be divided or exchanged.
(b) Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in the case of loss, theft or
destruction of reasonably satisfactory indemnification, and upon surrender and
cancellation of this Warrant in the case of mutilation, the Company will execute
and deliver a new Warrant of like tenor and date. Any such new Warrant executed
and delivered shall constitute an additional contractual obligation on the part
of the Company, whether or not this Warrant so lost, stolen, destroyed or
mutilated shall be at any time enforceable by anyone.
(c) The
Company may cause any legend required under the Act and applicable state
securities laws, or advisable in the opinion of its legal counsel, to be set
forth on each Warrant.
6. Rights of the
Holder. The Holder shall not, by virtue hereof, be entitled to
any rights of a shareholder in the Company, either at law or equity, and the
rights of the Holder as the Holder of this Warrant are limited to those
expressed in this Warrant and the Purchaser Representation Letter.
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7. Anti-Dilution
Provisions. So long as this Warrant is outstanding and not fully
exercised, the Company shall not, without the prior consent of the Holder, issue
or sell (i) any Common Stock without consideration or for a consideration per
share less than its fair market value determined immediately prior to its
issuance, or (ii) issue or sell any warrant, option, right, contract, call, or
other security or instrument granting the holder thereof the right to acquire
Common Stock without consideration or for a consideration per share less than
such Common Stock’s fair market value determined immediately prior to its
issuance. For the purpose of this Paragraph 7, the Common Stock’s
fair market value shall be determined as provided in Paragraph 4 hereof, on a
fully-diluted basis, assuming the exercise of all Options and other outstanding
rights to acquire Common Stock.
8. Securities Not
Registered Under the Securities Act of 1933. Neither the
Warrants nor the shares of Common Stock issuable upon their exercise has been
registered under the Securities Act of 1933 or the laws of any state of the
United States and each Warrant certificate as well as each Common Stock
certificate issued upon the exercise of any such Warrant, shall be stamped or
otherwise imprinted with a legend in substantially the following
form:
“The
securities represented hereby have not been registered under the Securities Act
of 1933. Such securities may not be sold or transferred in the
absence of such registration or an exemption therefrom under said
Act.”
9. Officer’s
Certificate. Whenever the Company shall determine the fair
market value of the Common Stock pursuant to Paragraph 4 hereof, the Company
shall forthwith file in the custody of its secretary at its principal office,
with its stock transfer agent and with the Holder, an officer’s certificate
showing the such fair market value and the date as of which it was determined,
and setting forth in reasonable detail the facts requiring such determination
and the facts, assumptions, methodology and calculations employed in determining
such value. The Company shall forthwith deliver a copy of each such
officer’s certificate to the Holder, and the Company shall make all such
officer’s certificates available at all reasonable times for inspection by and
copying by the Holder.
10. Notices to
Warrantholders. So long as this Warrant shall be outstanding
and any portion of it shall be unexercised, (i) if the Company shall pay any
dividend or make any distribution upon the Common Stock or (ii) if the Company
shall offer to the holders of Common Stock for subscription or purchase by them
any shares of stock of any class or any other rights or (iii) if any capital
reorganization of the Company, reclassification of the Company’s capital stock,
consolidation or merger of the Company with or into another corporation, sale,
lease or transfer of all or substantially all of the Company’s property and
assets to another corporation, or voluntary or involuntary dissolution,
liquidation or winding up of the Company shall be effected, then in any such
case, the Company shall cause to be delivered to the Holder, at least ten days
prior to the date specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating the date on
which (x) a record is to be taken for the purpose of such dividend, distribution
or rights, or (y) such reclassification, reorganization, consolidation, merger,
conveyance, lease, dissolution, liquidation or winding up is to take place and
the date, if any is to be fixed, as of which the holders of record of Common
Stock shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or winding
up.
11. Reclassification,
Reorganization or Merger. In case of any reclassification,
capital reorganization or other change of outstanding shares of Common Stock of
the Company (other than a reverse split or other action that results in a
reduction of the number of outstanding shares, 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 an
issuance of Common Stock by way of dividend or other distribution or of a
subdivision or combination), or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Warrant) or in case of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety, the
Company shall cause effective provision to be made so that the Holder shall have
the right thereafter, by exercising this Warrant, to purchase the same kind and
amount of shares of stock and other securities and property receivable upon such
classification, capital reorganization or other change, consolidation, merger,
sale or conveyance. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Warrant. The foregoing provisions of this
Paragraph 11 shall similarly apply to successive reclassifications, capital
reorganizations and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances. In the event that in any such
capital reorganization or reclassification, consolidation, merger, sale or
conveyance, additional shares of Common Stock shall be issued in exchange,
conversion, substitution or payment, in whole or in part, for or of a security
of the Company other than Common Stock, any such issue shall be treated as an
issue of Common Stock covered by the provisions of 6 hereof with the amount of
the consideration received upon the issue thereof being determined by the
Company’s board of directors, such determination to be final and binding on the
Holder.
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12. Spin-Offs. In
the event the Company spins-off a subsidiary by distributing to the Company’s
stockholders as a dividend or otherwise the stock of the subsidiary, the Company
shall reserve for the life of the Warrant shares of the subsidiary to be
delivered to the holders of the Warrants upon exercise to the same extent as if
they were owners of record of the Warrant Shares on the record date for payment
of the shares of the subsidiary.
13. Miscellaneous. All
notices given under this Warrant shall be in writing, addressed to the parties
as set forth below, and shall be effective on the earliest of (i) the date
received, or (ii) if given by facsimile transmittal on the date given if
transmitted before 5:00 p.m. the recipients time, otherwise it is effective the
next day, or (iii) on the second business day after delivery to a major
international air delivery or air courier service (such as Federal Express or
Network Couriers):
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If
to the Holder:
Recap
Marketing and Consulting, L.L.P.
00000
Xxxxxxxxxx Xx Xxx 000
Xxxxxxx,
XX 00000-0000
Attention:
Xxxxxx M. A. Xxxx, President
Facsimile
No. 000-000-0000
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If
to the Company:
00000
Xxxxxxxxxx Xx Xxx 000
Xxxxxxx,
XX 00000-0000
Attention:
Xxxxxxx X. Xxxxx, President
Facsimile
No. 000-000-0000
With
a copy (that does not constitute
notice)
to:
Sonfield
& Sonfield
Attorneys
at Law
000
Xxxx Xxx Xxxx
Xxxxxxx,
Xxxxx 00000
Attention: Xxxxxx
X. Xxxxxxxx, Xx.
Facsimile
No. (000) 000-0000
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14. This
Warrant is binding on and, except for the limitations on transfer and assignment
contained in Paragraph 4, shall inure to the benefit of the successors in
interest of the Company and the Holder, respectively.
15. This
Warrant shall be governed by and interpreted in accordance with the laws of the
State of Texas; provided, however, that if any provision of this Warrant is
unenforceable under the laws of the State of Texas, but is enforceable under
Delaware law, then such provision shall be governed by and interpreted in
accordance with Delaware law. The parties agree that the courts of the Xxxxxx
County, Texas, shall have exclusive jurisdiction and venue for the adjudication
of any civil action between them arising out of relating to this Agreement, and
hereby irrevocably consent to such jurisdiction and venue.
Dated as
of January 19, 2008.
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By
_________________________________
Xxxxxxx
X. Xxxxx, President
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||
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PURCHASE FORM
Date:
____________________
TO:
_____________________
c/o
______________________
The
undersigned hereby irrevocably elects to exercise the within Warrant to the
extent of purchasing ___________ shares of Common Stock, pursuant to the terms
of the attached Warrant.
Method of
Exercise (Please initial the applicable blank):
___The
undersigned elects to exercise the attached Warrant by means of a cash payment,
and tenders herewith or by concurrent wire transfer payment in full for the
purchase price of the shares being purchased, together with all applicable
transfer taxes, if any.
___The
undersigned elects to exercise the attached Warrant by means of relinquishing a
sufficient number of shares as payment, and tenders herewith the within Warrant
in full payment of the purchase price.
______________________________
(Name)
_________________________________
_________________________________
(Address)
The
undersigned hereby represents and warrants that the aforesaid Shares are being
acquired for the account of the undersigned for investment and not with a view
to, or for resale, in connection with the distribution thereof, and that the
undersigned has no present intention of distributing or reselling such shares
and all representations and warranties of the undersigned set forth in Section 7
of the attached Warrant are true and correct as of the date hereof.
______________________________
(Signature) Title:__________________________
____________________________
(Date)
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