NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE SOLD OR OTHERWISE TRANSFERRED
UNTIL (I) A REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE
STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II)
THE COMPANY SHALL HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER.
AMERICAN UNITED GLOBAL, INC.
COMMON STOCK PURCHASE WARRANT
_______ shares
Original Issue Date: March __, 2006
THIS CERTIFIES THAT, FOR VALUE RECEIVED, ____________ or its registered
assigns ("Holder") is entitled to purchase, on the terms and conditions
hereinafter set forth, at any time or from time to time from the date hereof
until 5:00 p.m., Eastern Time, on the fifth (5th) year anniversary of the
Original Issue Date set forth above, or if such date is not a day on which the
Company (as hereinafter defined) is open for business, then the next succeeding
day on which the Company is open for business (such date is the "Expiration
Date"), but not thereafter, to purchase up to ______________ (_______) shares of
the Common Stock, par value $.01 per share, (the "Common Stock"), of AMERICAN
UNITED GLOBAL, INC., a Delaware corporation (the "Company"), at $1.20 per share
(the "Exercise Price"), such number of shares and Exercise Price being subject
to adjustment upon the occurrence of the contingencies set forth in this
Warrant. Each share of Common Stock as to which this Warrant is exercisable is a
"Warrant Share" and all such shares are collectively referred to as the "Warrant
Shares."
Section 1. Exercise of Warrant.
(a) This Warrant may, at the option of Holder, be exercised in whole
or in part from time to time, by delivery to the Company at its office, on or
before 5:00 p.m., Eastern Time (i) a written notice of such Holder's election to
exercise this Warrant (the "Exercise Notice"), which notice may be in the form
of the Notice of Exercise attached hereto, properly executed and completed by
Holder or an authorized officer thereof, (ii) a check payable to the order of
the Company, in an amount equal to the product of the Exercise Price multiplied
by the number of Warrant Shares specified in the Exercise Notice, and (iii) this
Warrant (the items specified in (i), (ii), and (iii) are collectively the
"Exercise Materials").
(b) As promptly as practicable, and in any event within two (2)
business days after its receipt of the Exercise Materials, the Company shall
execute or cause to be executed and delivered to Holder a certificate or
certificates representing the number of Warrant Shares specified in the Exercise
Notice, together with cash in lieu of any fraction of a share, and if this
Warrant is partially exercised, a new warrant on the same terms for the
unexercised balance of the Warrant Shares. The stock certificate or certificates
shall be registered in the name of Holder or such other name or names as shall
be designated in the Exercise Notice. The date on which the Warrant shall be
deemed to have been exercised (the "Effective Date"), and the date the person in
whose name any certificate evidencing the Common Stock issued upon the exercise
hereof is issued shall be deemed to have become the holder of record of such
shares, shall be the date the Company receives the Exercise Materials,
irrespective of the date of delivery of a certificate or certificates evidencing
the Common Stock issued upon the exercise hereof, provided, however, that if the
Exercise Materials are received by the Company on a date on which the stock
transfer books of the Company are closed, the Effective Date shall be the next
succeeding date on which the stock transfer books are open. All shares of Common
Stock issued upon the exercise of this Warrant will, upon issuance, be fully
paid and non-assessable and free from all taxes, liens, and charges with respect
thereto.
Section 2. Adjustments to Warrant Shares. The number of Warrant Shares
issuable upon the exercise hereof shall be subject to adjustment as follows:
(a) In the event the Company is a party to a consolidation, share
exchange, or merger, or the sale of all or substantially all of the assets of
the Company to, any person, or in the case of any consolidation or merger of
another corporation into the Company in which the Company is the surviving
corporation, and in which there is a reclassification or change of the shares of
Common Stock of the Company, this Warrant shall after such consolidation, share
exchange, merger, or sale be exercisable for the kind and number of securities
or amount and kind of property of the Company or the corporation or other entity
resulting from such share exchange, merger, or consolidation, or to which such
sale shall be made, as the case may be (the "Successor Company"), to which a
holder of the number of shares of Common Stock deliverable upon the exercise
(immediately prior to the time of such consolidation, share exchange, merger, or
sale) of this Warrant would have been entitled upon such consolidation, share
exchange, merger, or sale; and in any such case appropriate adjustments shall be
made in the application of the provisions set forth herein with respect to the
rights and interests of Holder, such that the provisions set forth herein shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to the number and kind of securities or the type and amount of
property thereafter deliverable upon the exercise of this Warrant. The above
provisions shall similarly apply to successive consolidations, share exchanges,
mergers, and sales. Any adjustment required by this Section 2 (a) because of a
consolidation, share exchange, merger, or sale shall be set forth in an
undertaking delivered to Holder and executed by the Successor Company which
provides that Holder shall have the right to exercise this Warrant for the kind
and number of securities or amount and kind of property of the Successor Company
or to which the holder of a number of shares of Common Stock deliverable upon
exercise (immediately prior to the time of such consolidation, share exchange,
merger, or sale) of this Warrant would have been entitled upon such
consolidation, share exchange, merger, or sale. Such undertaking shall also
provide for future adjustments to the number of Warrant Shares and the Exercise
Price in accordance with the provisions set forth in Section 2 hereof.
(b) In the event the Company should at any time, or from time to
time after the Original Issue Date, fix a record date for the effectuation of a
stock split or subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock, or securities or
rights convertible into, or entitling the holder thereof to receive directly or
indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such holder
for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon exercise or
exercise thereof), then, as of such record date (or the date of such dividend,
distribution, split, or subdivision if no record date is fixed), the number of
Warrant Shares issuable upon the exercise hereof shall be proportionately
increased and the Exercise Price shall be appropriately decreased by the same
proportion as the increase in the number of outstanding Common Stock Equivalents
of the Company resulting from the dividend, distribution, split, or subdivision.
Notwithstanding the preceding sentence, no adjustment shall be made to decrease
the Exercise Price below $.0001 per Share.
(c) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for the effectuation of a
reverse stock split, or a transaction having a similar effect on the number of
outstanding shares of Common Stock of the Company, then, as of such record date
(or the date of such reverse stock split or similar transaction if no record
date is fixed), the number of Warrant Shares issuable upon the exercise hereof
shall be proportionately decreased and the Exercise Price shall be appropriately
increased by the same proportion as the decrease of the number of outstanding
Common Stock Equivalents resulting from the reverse stock split or similar
transaction.
(d) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for a reclassification of its
Common Stock, then, as of such record date (or the date of the reclassification
if no record date is set), this Warrant shall thereafter be convertible into
such number and kind of securities as would have been issuable as the result of
such reclassification to a holder of a number of shares of Common Stock equal to
the number of Warrant Shares issuable upon exercise of this Warrant immediately
prior to such reclassification, and the Exercise Price shall be unchanged.
(e) The Company will not, by amendment of its Certificate of
Incorporation or through reorganization, consolidation, merger, dissolution,
issue, or sale of securities, sale of assets or any other voluntary action, void
or seek to avoid the observance or performance of any of the terms of the
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate in order to protect the rights of Holder against dilution or other
impairment. Without limiting the generality of the foregoing, the Company (x)
will not create a par value of any share of stock receivable upon the exercise
of the Warrant above the amount payable therefor upon such exercise, and (y)
will take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and non-assessable shares upon
the exercise of the Warrant.
(f) When any adjustment is required to be made in the number or kind
of shares purchasable upon exercise of the Warrant, or in the Exercise Price,
the Company shall promptly notify Holder of such event and of the number of
shares of Common Stock or other securities or property thereafter purchasable
upon exercise of the Warrants and of the Exercise Price, together with the
computation resulting in such adjustment.
(g) The Company covenants and agrees that all Warrant Shares which
may be issued will, upon issuance, be validly issued, fully paid, and
non-assessable. The Company further covenants and agrees that the Company will
at all times have authorized and reserved, free from preemptive rights, a
sufficient number of shares of its Common Stock to provide for the exercise of
the Warrant in full.
Section 3. No Stockholder Rights. This Warrant shall not entitle Holder
hereof to any voting rights or other rights as a stockholder of the Company.
Section 4. Transfer of Securities.
(a) This Warrant and the Warrant Shares and any shares of capital
stock received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon, or otherwise, shall not be
transferable except upon compliance with the provisions of the Securities Act of
1933, as amended (the "Securities Act") and applicable state securities laws
with respect to the transfer of such securities. The Holder, by acceptance of
this Warrant, agrees to be bound by the provisions of Section 4 hereof and to
indemnify and hold harmless the Company against any loss or liability arising
from the disposition of this Warrant or the Warrant Shares issuable upon
exercise hereof or any interest in either thereof in violation of the provisions
of this Warrant.
3
(b) Each certificate for the Warrant Shares and any shares of
capital stock received in respect thereof, whether by reason of a stock split or
share reclassification thereof, a stock dividend thereon or otherwise, and each
certificate for any such securities issued to subsequent transferees of any such
certificate shall (unless otherwise permitted by the provisions hereof) be
stamped or otherwise imprinted with a legend in substantially the following
form:
"NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER."
Section 5. Miscellaneous.
(a) The terms of this Warrant shall be binding upon and shall inure
to the benefit of any successors or permitted assigns of the Company and Holder.
(b) Except as otherwise provided herein, this Warrant and all rights
hereunder are transferable by the registered holder hereof in person or by duly
authorized attorney on the books of the Company upon surrender of this Warrant,
properly endorsed, to the Company. The Company may deem and treat the registered
holder of this Warrant at any time as the absolute owner hereof for all purposes
and shall not be affected by any notice to the contrary.
(c) Notwithstanding any provision herein to the contrary, Holder may
not exercise, sell, transfer, or otherwise assign this Warrant unless the
Company is provided with an opinion of counsel satisfactory in form and
substance to the Company, to the effect that such exercise, sale, transfer, or
assignment would not violate the Securities Act or applicable state securities
laws.
(d) This Warrant may be divided into separate warrants covering one
share of Common Stock or any whole multiple thereof, for the total number of
shares of Common Stock then subject to this Warrant at any time, or from time to
time, upon the request of the registered holder of this Warrant and the
surrender of the same to the Company for such purpose. Such subdivided Warrants
shall be issued promptly by the Company following any such request and shall be
of the same form and tenor as this Warrant, except for any requested change in
the name of the registered holder stated herein.
(e) Any notices, consents, waivers, or other communications required
or permitted to be given under the terms of this Warrant must be in writing and
will be deemed to have been delivered (a) upon receipt, when delivered
personally, (b) upon receipt, when sent by facsimile, provided a copy is mailed
by U.S. certified mail, return receipt requested, (c) three (3) days after being
sent by U.S. certified mail, return receipt requested, or (d) one (1) day after
deposit with a nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be:
If to the Company: American United Global, Inc..
000 Xxxxxxx Xxxxxx - #000
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, CEO
Fax No.: (000) 000-0000
With a copy to: With a copy to:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Fax No.: 000-000-0000
If to Holder, to the registered address of Holder appearing on the books
of the Company. Each party shall provide five (5) days prior written notice to
the other party of any change in address, which change shall not be effective
until actual receipt thereof
(f) The corporate laws of the State of New York shall govern all
issues concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by the internal laws of the
State of New York, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of New York. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the federal districts
courts located in the State of New York, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Warrant and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. If any provision of this Warrant shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Warrant in that
jurisdiction or the validity or enforceability of any provision of this Warrant
in any other jurisdiction.
[Signatures on the following page]
5
SIGNATURE PAGE
TO
COMPANY
COMMON STOCK PURCHASE WARRANT
IN WITNESS WHEREOF, the Company, has caused this Warrant to be executed in
its name by its duly authorized officers under seal, and to be dated as of the
date first above written.
AMERICAN UNITED GLOBAL, INC.
By:
----------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
ASSIGNMENT
(To be Executed by the Registered Holder to affect a Transfer of
the foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and
transfers unto
___________________________________________________________________________ the
foregoing Warrant and the rights represented thereto to purchase shares of
Common Stock of AMERICAN UNITED GLOBAL, INC. in accordance with terms and
conditions thereof, and does hereby irrevocably constitute and appoint
________________ Attorney to transfer the said Warrant on the books of the
Company, with full power of substitution.
Holder:
____________________________________________
____________________________________________
Address
Dated: __________________, ___
In the presence of:
______________________________
EXERCISE NOTICE
[To be signed only upon exercise of Warrant]
To: AMERICAN UNITED GLOBAL, INC.
The undersigned Holder of the attached Warrant hereby irrevocably elects
to exercise the Warrant for, and to purchase thereunder, _____ shares of Common
Stock of AMERICAN UNITED GLOBAL, INC., issuable upon exercise of said Warrant
and hereby surrenders said Warrant.
The Holder herewith delivers to AMERICAN UNITED GLOBAL, INC., a check in
the amount of $______ representing the Exercise Price for such shares.
The undersigned herewith requests that the certificates for such shares be
issued in the name of, and delivered to the undersigned, whose address is
________________________________.
If electronic book entry transfer, complete the following:
Account Number: __________________________
Transaction Code Number: _________________
Dated: ___________________
Holder:
_______________________________
_______________________________
By_____________________________
Name:
Title:
NOTICE
The signature above must correspond to the name as written upon the face
of the within Warrant in every particular, without alteration or enlargement or
any change whatsoever.
COMPANY ACKNOWLEDGEMENT
TO
EXERCISE NOTICE
ACKNOWLEDGED AND AGREED:
AMERICAN UNITED GLOBAL, INC.
By:_____________________________________
Name:
Title:
Date:
