Contract
THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT
AND
THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT OR ANY APPLICABLE
STATE
SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE TUBE
MEDIA CORP. THAT SUCH REGISTRATION IS NOT REQUIRED..
To
Purchase 200,000 Shares of Common Stock of
THE
TUBE MEDIA CORP.
No. 2006-0180 |
Date:
November 10,
2006
|
THIS
COMMON STOCK PURCHASE WARRANT
(the
“Warrant”)
certifies that, for value received, TOV Trust, XXXX
XXXXX, Trustee, c/o, Xxxxxxxx,
Xxxxx and Xxxxxxx, 00000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxx, Xxxxxxxxxx
00000 (the “Holder”),
is
entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after the date hereof (the
“Initial
Exercise Date”)
and on
or prior to the close of business on the second anniversary of the issuance
of
the Initial Exercise Date, (the “Termination
Date”),
but
not thereafter, to subscribe for and purchase from The Tube Media Corp., a
Delaware corporation (the “Company”),
200,000 shares (the “Warrant
Shares”)
of
Common Stock, par value $.001 per share, of the Company (the “Common
Stock”)
at a
price equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions.
In
addition to the terms defined elsewhere in this Warrant, the following terms
have the meanings indicated in this Section 1.
“Holder”
shall
mean the Person in whose name the Warrant set forth herein is registered on
the
books of the Company maintained for such purpose.
“Original
Issue Date”
shall
mean the date on which the Original Warrants were issued, as set forth on the
cover page of this Warrant.
“Original
Warrants”
shall
mean the Warrants originally issued by the Company on the Original Issue Date
to
Holder, including this Warrant.
“Outstanding”
shall
mean, when used with reference to Common Stock, at any date as of which the
number of shares thereof is to be determined, all issued shares of Common Stock,
except shares then owned or held by or for the account of the Company or any
Subsidiary thereof, and shall include all shares issuable in respect of
outstanding scrip or any certificates representing fractional interests in
shares of Common Stock.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Trading
Day”
means
a
day during which trading in securities generally occurs on the Trading Market
in
which the Common Stock is then
listed or traded.
“Trading
Market”
means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the OTC Bulletin Board, Pink Sheets, the
Nasdaq Market, the American Stock Exchange, or the New York Stock
Exchange.
“Transfer”
shall
mean any disposition of any Warrant or Warrant Shares or of any interest in
either thereof, which would constitute a “sale” thereof within the meaning of
the Securities Act.
“Warrants”
shall
mean the Original Warrants and all warrants issued upon transfer, division
or
combination of, or in substitution for, such Original Warrants or any other
such
Warrant. All Warrants shall at all times be identical as to terms and conditions
and date, except as to the number of shares of Common Stock for which they
may
be exercised.
“Warrant
Shares”
means
the shares of Common Stock issuable upon exercise of the Warrants.
Section
2. Exercise.
(a)Exercise
of Warrant.
Exercise of the purchase rights represented by this Warrant may be made at
any
time or times on or after the Initial Exercise Date and on or before the
Termination Date by delivery to the Company (or such other office or agency
of
the Company as it may designate by notice in writing to the registered Holder
at
the address of such Holder appearing on the books of the Company) of: (i) the
Notice of Exercise Form annexed hereto duly completed and executed; (ii) the
aggregate Exercise Price of the shares thereby purchased by wire transfer of
immediately available United States funds or cashier’s check drawn on a United
States bank; (iii) the surrender of this Warrant; and (iv) payment of all taxes
required to be paid by the Holder, if any, pursuant to Section 2(e)(vi); and
(iv) the receipt of such certificates and other documents as reasonably may
be
required by the Company to determine that the exercise complies with applicable
securities laws. The Trading Day on which the last of the foregoing deliveries
is received by the Company is referred to as the “Exercise
Date”;
provided, however, that if the last of such deliveries is received after the
close of trading on the Trading Market for the Common Stock, the Exercise Date
shall be deemed to be the next Trading Day. This Warrant shall be deemed to
have
been exercised, the Warrant Shares shall be deemed to have been issued, and
the
Holder or any other person so designated to be named therein as the holder
of
the Warrant Shares shall be deemed to have become a holder of record of such
shares for all purposes, as of the Exercise Date.
2
(b)Exercise
Price.
The
exercise price for each Warrant Share issuable under this Warrant shall be
125%
of the per share offering price established in
the
private placement offering completed by the Company through Noble Financial
Group, Inc. within 30 days of the date of issuance of this Warrant, and
if
such private placement does not occur, the exercise price shall be the average
trading price of the common stock for the 20 trading days prior to the issuance
of this
Warrant,
subject
to adjustment hereunder (the “Exercise
Price”).
(c)Payment
of Exercise Price:
The
Holder shall pay the aggregate Exercise Price by wire transfer of immediately
available United States funds or cashier’s check drawn on a United States bank
“cashless exercise”. If at any time after one year from the date of issuance of
this Warrant there is no effective Registration Statement registering, or no
current prospectus available for, the resale of the Warrant Shares by the
Holder, then this Warrant may also be exercised at such time by means of a
“cashless exercise” in which the Holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient obtained
by
dividing [(A-B) (X)] by (A), where:
(A) = | the closing price of the Common Stock on the Trading Day immediately preceding the date of such election; |
(B) = | the Exercise Price of this Warrant, as adjusted; and |
(X) = |
the
number of Warrant Shares issuable upon exercise of this Warrant in
accordance with the terms of this Warrant by means of a cash exercise
rather than a cashless exercise.
|
(d)
Mechanics
of Exercise.
3
i. Authorization
of Warrant Shares.
The
Company covenants that all Warrant Shares which may be issued upon the exercise
of the purchase rights represented by this Warrant will, upon exercise of the
purchase rights represented by this Warrant, be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and charges in
respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue). The Company covenants that during
the period the Warrant is outstanding, it will reserve from its authorized
and
unissued Common Stock a sufficient number of shares to provide for the issuance
of the Warrant Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates
for
the Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure
that such Warrant Shares may be issued as provided herein without violation
of
any applicable law or regulation, or of any requirements of the Trading Market
upon which the Common Stock may be listed.
ii. Delivery
of Certificates Upon Exercise.
Certificates for shares purchased hereunder shall be transmitted by the transfer
agent of the Company to the Holder by depositing the certificate(s) representing
the Warrant Shares with a nationally recognized overnight courier for delivery
to the address specified by the Holder in the Notice of Exercise on the next
Trading Day, in either event within 3 Trading Days of the Exercise Date
(“Warrant
Share Delivery Date”).
iii. Delivery
of New Warrants Upon Exercise.
If this
Warrant shall have been exercised in part, the Company shall, at the time of
delivery of the certificate or certificates representing Warrant Shares, deliver
to Holder a new Warrant evidencing the rights of Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
iv. No
Fractional Shares or Scrip.
No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. As to any fraction of a share which Holder would
otherwise be entitled to purchase upon such exercise, the Company shall pay
a
cash adjustment in respect of such final fraction in an amount equal to such
fraction multiplied by the Exercise Price.
v. Charges,
Taxes and Expenses.
Issuance of certificates for Warrant Shares shall be made without charge to
the
Holder for any issue or transfer tax or other incidental expense in respect
of
the issuance of such certificate, all of which taxes and expenses shall be
paid
by the Company, and such certificates shall be issued in the name of the Holder
or in such name or names as may be directed by the Holder; provided,
however,
that in
the event certificates for Warrant Shares are to be issued in a name other
than
the name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder;
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
4
vi. Closing
of Books.
The
Company will not close its stockholder books or records in any manner which
prevents the timely exercise of this Warrant, pursuant to the terms
hereof.
(f)
Compliance
With Securities Laws.
By
acquiring this Warrant from Company on the date hereof, the Holder agrees,
acknowledges, covenants, represents and warrants as follows:
(i)
This
Warrant and the shares of Common Stock issuable upon exercise hereof have not
been registered under the Securities Act, or qualified or registered under
any
state securities laws which may be applicable. Holder understands that this
Warrant and such shares of Common Stock have been and will be issued and sold
hereunder in transactions exempt from the registration or qualification
requirements of the Securities Act and applicable state securities laws and
Holder acknowledges that reliance on and the availability of said exemptions
is
predicated in part on the accuracy of Holder's representations and warranties
herein.
(ii)
Holder represents and warrants that it is acquiring this Warrant for its own
account, for purposes of investment, and not with a view to, or for sale in
connection with, any distribution thereof within the meaning of the Securities
Act and the rules and regulations promulgated thereunder. Holder represents,
warrants and agrees that it will not sell, exercise, transfer or otherwise
dispose of this Warrant (or any interest therein) or any of the Common Stock
purchasable upon exercise hereof, except pursuant to (i) an effective
registration statement under the Securities Act and applicable state securities
laws or (ii) an opinion of counsel, satisfactory to Company, that an exemption
from registration under the Securities Act and such laws is available. Holder
understands that Company will be relying upon the truth and accuracy of the
representations and warranties contained in this section in issuing this Warrant
and such Common Stock without first registering the issuance thereof under
the
Securities Act or qualifying or registering the issuance thereof under any
state
securities laws that may be applicable.
(iii)
Holder acknowledges that there is not a liquid public market for the Warrant,
although there currently is a public trading market for the Common
Stock,
and
there
can be no assurance that any such market will be developed, and there can be
no
assurance that Holder will be able to liquidate its investment in Company.
Holder represents and warrants that it is familiar with and understands the
terms and conditions of Rule 144 promulgated under the Securities Act.
(iv)
Holder represents and warrants to Company that (x) it is an accredited investor
as defined in Regulation D of the Rules and Regulations of the Securities and
Exchange Commission; (y) it has such knowledge and experience in financial
and
business matters as is necessary to enable it to evaluate the merits and risks
of any investments in Company and is not utilizing any other person to be a
purchaser representative in connection with evaluation of such merits and risks;
and (z) it has no need for liquidity in an investment in Company and is able
to
bear the risk of that investment for an indefinite period and to afford a
complete loss thereof.
5
(v)
Holder represents and warrants that it has had access to, and has been furnished
with, all of the information it has requested from Company and has had an
opportunity to review the books and records of Company and to discuss with
management and members of the board of directors of Company the business and
financial affairs of Company.
(vi)
Holder agrees that at the time of each exercise of this Warrant, unless the
issuance of shares of Common Stock issuable thereupon is pursuant to an
effective registration statement under the Securities Act, Holder will provide
Company with a letter embodying the representations and warranties set forth
in
subsections (i) through (v), in form and substance satisfactory to Company,
and
agrees that the certificate(s) representing any shares issued to it upon any
exercise of this Warrant may bear such restrictive legend as Company may deem
necessary to reflect the restricted status of such shares under the Securities
Act unless Company shall have received from Holder an opinion of counsel to
Holder, reasonably satisfactory in form and substance to Company, that such
restrictive legend is not required.
Section
3.
Certain Adjustments.
(a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding: (A) pays a stock
dividend or otherwise makes a distribution on shares of its Common Stock or
any
other equity or equity equivalent securities payable in shares of Common Stock
(which, for avoidance of doubt, shall not include any shares of Common Stock
issued by the Company pursuant to this Warrant or any other option, warrant
or
other right to acquire the Common Stock), (B) subdivides outstanding shares
of
Common Stock into a larger number of shares (including by way of a stock split),
or (C) combines (including by way of reverse stock split) outstanding shares
of
Common Stock into a smaller number of shares, then in each case the Exercise
Price shall be multiplied by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding before such event and of which
the
denominator shall be the number of shares of Common Stock outstanding after
such
event. Any adjustment made pursuant to this Section 3(a) shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision or
combination.
(b) Adjustment
of Number of Shares.
Upon
each adjustment in the Exercise Price pursuant to Section 3(a), the number
of
shares of Common Stock issuable upon exercise hereof shall be adjusted, rounded
up to the nearest whole share, to the product obtained by multiplying such
number of shares purchasable immediately prior to such adjustment in the
Exercise Price by a fraction, the numerator of which shall be the Exercise
Price
immediately prior to such adjustment and the denominator of which shall be
the
Exercise Price immediately thereafter.
6
(c) Calculations.
All
calculations under this Section 3 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. The number of shares of Common
Stock outstanding at any given time shall not includes shares of Common Stock
owned or held by or for the account of the Company as treasury
shares.
(d) Failure
to Effect Event Requiring Adjustment.
If
any
event requiring an adjustment in the Exercise Price and the number of Warrant
shares issuable hereunder is not paid or made, then the Exercise Price and
number of shares issuable upon exercise of this Warrant shall again be adjusted
to be the Exercise Price and number of shares which would then be in effect
if
such adjustment had not been made for such.
(e) Notice
to Holders.
Whenever the Exercise Price is adjusted pursuant to Section 3(a), the Company
shall promptly mail to each Holder a notice setting forth the Exercise Price
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment.
(f) Organic
Change.
Any
recapitalization, reorganization, reclassification, consolidation or merger
to
which the Company is a party, or sale of all or substantially all of the
Company’s assets to another Person or other transaction that is effected in such
a way that holders of Common Stock are entitled to receive (either directly
or
upon subsequent liquidation) stock, securities or assets with respect to or
in
exchange for Common Stock is referred to herein as an “Organic Change.” Prior to
the consummation of any Organic Change, the Company will make appropriate
provision to ensure that the Holder will thereafter have the right to acquire
and receive, upon exercise of this Warrant, in lieu of or addition to (as the
case may be) the Warrant Shares immediately theretofore acquirable and
receivable upon the exercise of such holder’s Warrant, such stock, securities or
assets as may be issued or payable with respect to or in exchange for the number
of Warrant Shares immediately theretofore acquirable and receivable upon
exercise of the Holder’s Warrant had such Organic Change not taken place. In any
such case, the Company will make appropriate provision with respect to the
Holder’s rights and interests to ensure that the provisions of this Section 3(f)
hereof will thereafter be applicable to the Warrant. The Company will not effect
any such Organic Change, unless prior to the consummation thereof, the successor
entity (if other than the Company) resulting from consolidation or merger or
the
corporation purchasing such assets assumes by written instrument, the obligation
to deliver to the Holder such stock, securities or assets as, in accordance
with
the foregoing provisions, Holder may be entitled to acquire. The Company will
give written notice to the Holder at least 20 days prior to the date on which
the Company closes its books or takes a record for determining rights to vote
with respect to any Organic Change, dissolution or liquidation. The Company
will
also give written notice to the Holder at least 20 days prior to the date on
which any Organic Change, dissolution or liquidation will take
place.
7
Section
4.
Transfer
of Warrant.
(a) Transferability.
Subject
to compliance with any applicable securities laws and the conditions set forth
in Sections 4(d) and 5(a) hereof and to the provisions of Section 4.1 of the
Purchase Agreement, this Warrant and all rights hereunder are transferable,
in
whole or in part, upon surrender of this Warrant at the principal office of
the
Company, together with a written assignment of this Warrant substantially in
the
form attached hereto duly executed by the Holder or its agent or attorney and
funds sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the
portion of this Warrant not so assigned, and this Warrant shall promptly be
cancelled. A Warrant, if properly assigned, may be exercised by a new holder
for
the purchase of Warrant Shares without having a new Warrant issued.
(b) New
Warrants.
This
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with
Section 4(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants
in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
(c) Warrant
Register.
The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant
Register”),
in
the name of the record Holder hereof from time to time. The Company may deem
and
treat the registered Holder of this Warrant as the absolute owner hereof for
the
purpose of any exercise hereof or any distribution to the Holder, and for all
other purposes, absent actual notice to the contrary.
(d) Transfer
Restrictions.
If,
at the
time
of
the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be registered pursuant to an effective
registration
statement under the Securities Act
and
under
applicable state securities or blue sky laws, the Company may require, as a
condition of allowing such transfer (i) that the Holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion of counsel
(which opinion shall be in form, substance and scope customary for opinions
of
counsel in comparable transactions) to the effect that such transfer may be
made
without
registration under
the
Securities Act and under applicable state securities or blue sky laws, (ii)
that
the holder or transferee execute and deliver to the Company an investment letter
in form and substance acceptable to the Company and (iii) that the transferee
be
an “accredited
investor” as defined in Regulation D promulgated under the Securities
Act.
(e) Legend. The
Warrant Shares issuable hereunder shall bear the following legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAW
OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE TUBE MEDIA CORP. THAT SUCH
REGISTRATION IS NOT REQUIRED.
8
Certificates
evidencing the Warrant Shares shall not contain the legend set forth above:
(i)
following any sale of such Warrant pursuant to an effective registration
statement under the Securities Act or pursuant to Rule 144, or (ii) if such
Warrant Shares are eligible for sale under Rule 144(k), provided that, in each
case, the Holder provides a copy of such certificates or confirmations as the
Company reasonably requests.
Section
5.
Miscellaneous.
(a) Title
to Warrant.
The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose, in the name of the record Holder hereof from time
to
time. The Company may deem and treat the registered Holder of this Warrant
as
the absolute owner hereof for the purpose of any exercise hereof or any notice
to the Holder, and for all other purposes, absent actual written notice to
the
contrary and compliance with the applicable provisions concerning transfer
of
this Warrant.
(b) No
Rights as Shareholder Until Exercise.
This
Warrant does not entitle the Holder to any voting rights or other rights as
a
shareholder of the Company prior to the Exercise Date and then only with respect
to the Warrant Shares to be issued with respect threreto.
(c) Loss,
Theft, Destruction or Mutilation of Warrant.
The
Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
or any stock certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it
(which, in the case of the Warrant, shall not include the posting of any bond),
and upon surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate
of like tenor and dated as of such cancellation, in lieu of such Warrant or
stock certificate.
(d) Saturdays,
Sundays, Holidays, etc.
If the
last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall be a Saturday, Sunday or a legal holiday,
then such action may be taken or such right may be exercised on the next
succeeding day not a Saturday, Sunday or legal holiday.
(e) Exchange
of Warrant for Warrants of Different Denominations.
This
Warrant is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for new Warrants of like tenor representing
in
the aggregate the right to purchase the number of Warrant Shares then
purchasable hereunder, and each of such new Warrant will represent such portion
of such rights as is designated by the Purchaser at the time of such surrender.
The date the Company initially issued this Warrant will be deemed to be the
warrant issue date for such new Warrants regardless of the number of times
new
certificates representing the unexplored and unexercised rights formerly
represented by this Warrant shall be issued.
9
(f) Jurisdiction.
All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed in accordance with the
internal laws of the State of Florida, without regard to the principles of
conflicts of law thereof.
(g) Restrictions.
The
Holder acknowledges that the Warrant Shares acquired upon the exercise of this
Warrant, if not registered, will have restrictions upon resale imposed by state
and federal securities laws.
(h) No
waiver.
No
course of dealing or any delay or failure to exercise any right hereunder on
the
part of Holder shall operate as a waiver of such right or otherwise prejudice
Holder’s rights, powers or remedies; provided, however, that all rights
hereunder shall terminate on the Termination Date.
(i) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (I) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number set forth on the signature
pages attached hereto prior to 4:00 p.m. (Eastern Time) on a Trading Day, (II)
the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth
on
the signature pages attached hereto on a day that is not a Trading Day or later
than 4:00 p.m. (Eastern Time) on any Trading Day, (III) the second Trading
Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (IV) upon actual receipt by the party to whom such notice
is
required to be given; provided, however, that any exercise of the Warrant shall
be effective in the manner provided in Section 2(a). The address for such
notices and communications shall be (A) if to the Holder of this Warrant, at
the
registered address of such Holder as set forth in the Warrant register kept
at
the principal office of the Company or its Warrant registrar, if any, or (b)
if
to the Company, to it at the address set forth on the signature page
hereto.
(j) Limitation
of Liability.
No
provision hereof, in the absence of any affirmative action by Holder to exercise
this Warrant or purchase Warrant Shares, and no enumeration herein of the rights
or privileges of Holder, shall give rise to any liability of Holder for the
purchase price of any Common Stock or as a stockholder of the Company, whether
such liability is asserted by the Company or by creditors of the
Company.
(k) Remedies.
Holder,
in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Warrant. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Warrant and hereby agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
10
(l) Successors
and Assigns.
Subject
to applicable securities laws and the other restrictions on transfer set forth
herein, this Warrant and the rights and obligations evidenced hereby shall
inure
to the benefit of and be binding upon the successors of the Company and the
successors and permitted assigns of Holder. The provisions of this Warrant
are
intended to be for the benefit of all Holders from time to time of this Warrant
and shall be enforceable by any such Holder.
(m) Amendment.
This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
(n) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(o) Tax
Treatment.
This
Warrant is not intended to qualify as an incentive stock option as defined
in
Section 422 of the Internal Revenue Code, as amended.
(p) Headings.
The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
********************
11
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
Dated:
November 10, 2006
THE TUBE MEDIA CORP. | ||
By: |
/s/
Xxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxx X. Xxxxxx
Title:
Chief Financial Officer
|
|
Address
for Notice:
D.
Xxxxxxx XxXxxxxxx, CEO
The
Tube Media Corp.
0000
X. Xxxxxxx Xxxxx Xx., Xxxxx 000
Xxxx
Xxxxxxxxxx, XX 00000
|
||
with
a copy to (which shall not constitute notice) to:
Blank
Rome LLP
0000
X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx
Xxxxx, Xxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxx, Esquire
|
12
NOTICE
OF EXERCISE
TO: THE
TUBE
MEDIA CORP.
(1) The
undersigned hereby elects to exercise this Warrant with respect to ________
Warrant Shares of the Company pursuant to the terms of the enclosed Warrant,
and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2) Payment
shall take the form of lawful money of the United States pursuant to
(3) Please
issue a certificate or certificates representing said Warrant Shares in the
name
of the undersigned or in such other name as is specified below:
_______________________________
Note:
If
issued in the name of a Person other than the Holder, additional documentation
may be required by the Company as specified in the Warrant to assure compliance
with federal and state securities laws.
The
Warrant Shares shall be delivered to the following:
_______________________________
_______________________________
_______________________________
(4) Accredited
Investor; Investor Representation.
The
undersigned Holder is an “accredited investor” as defined in Regulation D
promulgated under the Securities Act of 1933, as amended. The undersigned
represents and warrants that the shares of Common Stock to be issued upon
exercise hereof are being acquired solely for the account of the undersigned
and
not as a nominee for another party, and for investment, and that the undersigned
will not offer, sell or otherwise dispose of any such shares of Common Stock
except under circumstances that will not result in a violation of the Securities
Act of 1933, as amended, or any applicable state securities laws.
(5) The
undersigned had not previously sold, transferred or assigned this
Warrant.
Name
of
Holder:
________________________________________________________________________
Signature
of Authorized Signatory of Holder:
_________________________________________________
Name
of
Authorized Signatory:
____________________________________________________________
Title
of
Authorized Signatory:
_____________________________________________________________
Date:
________
13
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this
form
and supply required information.
Do
not
use this form to exercise the warrant.)
FOR
VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated:
______________, _______
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
_____________________________
Medallion
Signature Guarantee: ___________________________________________
The
Assignee hereby agrees to be bound by all the terms and covenants of this
Warrant.
Assignee’s
Signature: _____________________________
Assignee’s
Address: _____________________________
_____________________________
NOTE:
The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
Additional documentation may be required by the Company as specified in the
Warrant to assure compliance with federal and state securities
laws.
14