FORM OF WARRANT WARRANT TO PURCHASE SHARES OF COMMON STOCK Date of Warrant: ______________, 2____
Exhibit
4.1
FORM
OF WARRANT
WARRANT
TO PURCHASE
SHARES
OF COMMON STOCK
Date
of
Warrant: ______________, 2____
THIS
CERTIFIES that, for value received, _______________________________ or
his/her/its registered assigns (“Warrantholder”), is entitled, subject to the
terms and conditions set forth in this Warrant, to purchase from Studio One
Media, Inc., a Delaware corporation (“Company”), ____________, fully paid, duly
authorized and nonassessable shares of common stock (“Shares”), $0.001 par value
per share, of the Company, at any time commencing on the date hereof and
continuing for two years thereafter (the “Exercise Period”) at an exercise price
of ______Dollars and _______ Cents ($_________) per share, subject to adjustment
pursuant to Section 8 hereof.
This
Warrant is subject to the
following provisions, terms and conditions:
1.
Transferability.
1.1 Registration. The
Warrants shall be issued only in registered form.
1.2 Transfer. This
Warrant shall be transferable only on the books of the Company maintained
at its
principal executive offices upon surrender thereof for registration of transfer
duly endorsed by the Warrantholder or by its duly authorized attorney or
representative, or accompanied by proper evidence of succession, assignment
or
authority to transfer. Upon any registration of transfer, the Company
shall execute and deliver a new Warrant or Warrants in appropriate denominations
to the person or persons entitled thereto.
1.3 Common
Stock to be Issued. Upon the exercise of any Warrants and
upon receipt by the Company of a facsimile or original of Warrantholder’s signed
Election to Exercise Warrant (See Exhibit 1), Company shall instruct its
transfer agent to issue stock certificates, subject to the restrictive legend
set forth below, in the name of Warrantholder (or its nominee) and in such
denominations to be specified by Warrantholder representing the number of
shares
of Common Stock issuable upon such exercise, as applicable. Company
warrants that no instructions, other than these instructions, have been given
or
will be given to the transfer agent and that the Common Stock shall otherwise
be
freely transferable on the books and records of the Company.
1.4 It
shall be the Company’s responsibility to take all necessary actions and to bear
all such costs to issue the certificate of Common Stock as provided herein,
including the responsibility and cost for delivery of an opinion letter to
the
transfer agent, if so required. The person in whose name the
certificate of Common Stock is to be registered shall be treated as a
shareholder of record on and after the exercise date. Upon surrender of any
Warrant that is to be converted in part, the Company shall issue to the
Warrantholder a new Warrant equal to the unconverted amount, if so requested
by
Purchaser:
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND ARE BEING OFFERED AND
SOLD IN
RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SUCH
LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS OF TRANSFERABILITY
AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
SUCH
LAWS PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. THE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING
AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY
OR ADEQUACY OF THE OFFERING MATERIALS. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
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2. Exchange
of Warrant Certificate.
Any
Warrant certificate may be exchanged for another certificate or certificates
of
like tenor entitling the Warrantholder to purchase a like aggregate number
of
Shares as the certificate or certificates surrendered then entitle such
Warrantholder to purchase. Any Warrantholder desiring to exchange a
warrant certificate shall make such request in writing delivered to the Company,
and shall surrender, properly endorsed, the certificate evidencing the Warrant
to be so exchanged. Thereupon, the Company shall execute and deliver
to the person entitled thereto a new Warrant certificate as so
requested.
3. Terms
of Warrants: Exercise of Warrants.
3.1 Warrant
Exercise. Subject to the terms of this Warrant, the
Warrantholder shall have the right to purchase from the Company, such number
of
fully paid, duly authorized and nonassessable shares of common stock (“Shares”),
$0.001 par value per share, of the Company as have been set forth in the
first
paragraph of this Warrant, at any time commencing from the date hereof and
continuing for two years thereafter (the “Exercise Period”), upon surrender to
the Company at its principal executive office, of the certificate evidencing
this Warrant to be exercised, together with the attached Election to Exercise
Warrant form duly filled in and signed, and upon payment to the Company of
the
Warrant Price (as defined in and determined in accordance with the provisions
of
Section 7 and 8 hereof) or as provided in Section 3(a)(i) hereof, for the
number
of Shares with respect to which such Warrant is then
exercised. Payment of the aggregate Warrant Price shall be made in
cash, wire transfer or by cashier’s check or any combination
thereof.
3.2 Common
Stock Certificates. Subject to the terms of this Warrant,
upon such surrender of this Warrant and payment of such Warrant Price as
aforesaid, the Company shall promptly issue and cause to be delivered to
the
Warrantholder or to such person or persons as the Warrantholder may designate
in
writing, a certificate or certificates (in such name or names as the
Warrantholder may designate in writing) for the number of duly authorized,
fully
paid and non-assessable whole Shares to be purchased upon the exercise of
this
Warrant, and shall deliver to the Warrantholder Common Stock or cash, to
the
extent provided in Section 9 hereof, with respect to any fractional Shares
otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so designated
to
be named therein shall be deemed to have become a holder of such Shares as
of
the close of business on the date of the surrender of this Warrant and payment
of the Warrant Price, notwithstanding that the certificates representing
such
Shares shall not actually have been delivered or that the Share and Warrant
transfer books of the Company shall then be closed. This Warrant
shall be exercisable, at the sole election of the Warrantholder, either in
full
or from time to time in part and, in the event that any certificate evidencing
this Warrant (or any portion thereof) is exercised prior to the Termination
Date
with respect to less than all of the Shares specified therein at any time
prior
to the Termination Date, a new certificate of like tenor evidencing the
remaining portion of this Warrant shall be issued by the Company, if so
requested by the Warrantholder.
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3.3 Transfer
Agent. Upon the Company’s receipt of a facsimile or original
of Warrantholder’s signed Election to Exercise Warrant, the Company shall
instruct its transfer agent to issue one or more stock Certificates representing
that number of shares of Common Stock which the Warrantholder is entitled
to
purchase in accordance with the terms and conditions of this Warrant and
the
Election to Exercise Warrant attached hereto. The transfer agent for
the Company shall act as registrar and shall maintain an appropriate ledger
containing the necessary information with respect to each Warrant.
3.4 Exercise. This
Warrant is exercisable in whole or in part at the Exercise Price per share
of
Common Stock (as defined hereafter) payable hereunder, payable in cash or
by
certified or official bank check, by means of tendering this Warrant Certificate
to the Company. Upon surrender of this Warrant Certificate with the
annexed Notice of Exercise duly executed, together with payment of the Exercise
Price for the shares of Common Stock purchased, the Holder shall be entitled
to
receive a certificate or certificates for the shares of Common Stock so
purchased.
3.5 Election
to Exercise. Such exercise shall be effectuated by
surrendering to the Company, or its attorney, the Warrants to be converted
together with a facsimile or original of the signed Election to Exercise
Warrant
which evidences Warrantholder’s intention to exercise those Warrants
indicated. The date on which the Election to Exercise Warrant is
effective (“Exercise Date”) shall be deemed to be the date on which the
Warrantholder has delivered to the Company a facsimile or original of the
signed
Election to Exercise Warrant, as long as the original Warrants to be exercised
are received by the Company or its designated attorney within five (5) business
days thereafter. As long as the Warrants to be exercised are received
by the Company within five (5) business days after it receives a facsimile
or
original of the signed Election to Exercise Warrant, the Company shall deliver
to the Warrantholder, or per the Warrantholder’s instructions, the shares of
Common Stock within three (3) business days of receipt of the Warrants to
be
converted.
3.6 Payment
of Interest. Nothing contained in this Warrant shall be deemed to
establish or require the payment of interest to the Warrantholder.
3.7 Issuance
of Common Stock. It shall be the Company’s responsibility to
take all necessary actions and to bear all such costs to issue the Certificate
of Common Stock as provided herein, including the responsibility and cost
for
delivery of an opinion letter to the transfer agent, if so
required. The person in whose name the certificate of Common Stock is
to be registered shall be treated as a shareholder of record on and after
the
exercise date. Upon surrender of any Warrants that are to be converted in
part,
the Company shall issue to the Warrantholder new Warrants equal to the
unconverted amount, if so requested by Warrantholder.
3.8 Exercise
Default. The Company shall at all times reserve and have
available all Common Stock necessary to meet exercise of the Warrants by
all
Warrantholders of the entire amount of Warrants then outstanding. If,
at any time Warrantholder submits an Election to Exercise Warrant and the
Company does not have sufficient authorized but unissued shares of Common
Stock
available to effect, in full, a exercise of the Warrants (a “Exercise Default”,
the date of such default being referred to herein as the “Exercise Default
Date”), the Company shall issue to the Warrantholder all of the shares of Common
Stock which are available, and the Election to Exercise Warrant as to any
Warrants requested to be converted but not converted (the “Unconverted
Warrants”), upon Warrantholder’s sole option, may be deemed null and
void. The Company shall provide notice of such Exercise Default
(“Notice of Exercise Default”) to all existing Warrantholders of outstanding
Warrants, by facsimile, within one (1) business day of such
default (with the original delivered by overnight or two day
courier), and the Warrantholder shall give notice to the Company by facsimile
within five (5) business days of receipt of the original Notice of Exercise
Default (with the original delivered by overnight or two day courier) of
its
election to either nullify or confirm the Election to Exercise
Warrant.
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3.9 Furnishing
of Prospectus. The Company shall furnish to Warrantholder
such number of prospectuses and other documents incidental to the registration
of the shares of Common Stock underlying the Warrants, including any amendment
of or supplements thereto. Warrantholder shall acknowledge in writing
the receipt, the careful reading, and the understanding thereof, prior to
any
exercise under this Section 3.
3.10 Shareholder
of Record. Each person in whose name any certificate for
shares of Common Stock shall be issued shall for all purposes be deemed to
have
become the holder of record of the Common Stock represented thereby on the
date
on which the Warrant was surrendered and payment of the purchase price and
any
applicable taxes was made, irrespective of date of issue or delivery of such
certificate, except that if the date of such surrender and payment is a date
when the Shares transfer books of the Company are closed, such person shall
be
deemed to have become the holder of such Shares on the next succeeding date
on
which such Share transfer books are open. The Company shall not close
such Share transfer books at any one time for a period longer than seven
(7) days.
4. Payment
of Taxes. The Company shall pay all documentary
stamp taxes, if any, attributable to the initial issuance of the Shares;
provided, however, that the Company shall not be required to pay any tax
or
taxes which may be payable, (a) with respect to any secondary transfer of
this
Warrant or the Shares or (b) as a result of the issuance of the Shares to
any
person other than the Warrantholder, and the Company shall not be required
to
issue or deliver any certificate for any Shares unless and until the person
requesting the issuance thereof shall have paid to the Company the amount
of
such tax or shall have produced evidence that such tax has been paid to the
appropriate taxing authority.
5. Mutilated
or Missing Warrant. In case the certificate or certificates
evidencing this Warrant shall be mutilated, lost, stolen or destroyed, the
Company shall, at the request of the Warrantholder, issue and deliver in
exchange and substitution for and upon cancellation of the mutilated certificate
or certificates, or in lieu of and substitution for the certificate or
certificates lost, stolen or destroyed, a new Warrant certificate or
certificates of like tenor and representing an equivalent right or interest,
but
only upon receipt of evidence satisfactory to the Company of such loss, theft
or
destruction of such Warrant and of a bond of indemnity, if requested, also
satisfactory to the Company in form and amount, and issued at the applicant’s
cost. Applicants for such substitute Warrant certificate shall also
comply with such other reasonable regulations and pay such other reasonable
charges as the Company may prescribe.
6. Reservation
of Shares. The issuance, sale and delivery of the Warrants
have been duly authorized by all required corporate action on the part of
the
Company and when issued, sold and delivered in accordance with the terms
hereof
and thereof for the consideration expressed herein and therein, will be duly
and
validly issued, fully paid, and non-assessable and enforceable in accordance
with their terms, subject to the laws of bankruptcy and creditors’ rights
generally. The Company shall pay all taxes in respect of the issue
thereof. As a condition precedent to the taking of any action that
would result in the effective purchase price per share of Common Stock upon
the
exercise of this Warrant being less than the par value per share (if such
shares
of Common Stock then have a par value), the Company will take such corporate
action as may, in the opinion of its counsel, be necessary in order that
the
Company may comply with all its obligations under this Agreement with regard
to
the exercise of this Warrant.
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7. Warrant
Price. During the Exercise Period, the price per Share
(“Warrant price”) at which Shares shall be purchasable upon the exercise of this
Warrant shall be Four Dollars and Fifty Cents ($4.50), subject to adjustment
pursuant to Section 8 hereof (“Exercise Price”).
8. Adjustment
of Warrant Price and Number of Shares. The number and kind
of securities purchasable upon the exercise of this Warrant and the Warrant
Price shall be subject to adjustment from time to time after the date hereof
upon the happening of certain events, as follows:
8.1 Adjustments. The
number of Shares purchasable upon the exercise of this Warrant shall be subject
to adjustments as follows:
(a) In
case the Company shall (i) pay a dividend on Common Stock in Common Stock
or
securities convertible into, exchangeable for or otherwise entitling a holder
thereof to receive Common Stock, (ii) declare a dividend payable in cash
on its
Common Stock and at substantially the same time offer its shareholders a
right
to purchase new Common Stock (or securities convertible into, exchangeable
for
or other entitling a holder thereof to receive Common Stock) from the proceeds
of such dividend (all Common Stock so issued shall be deemed to have been
issued
as a stock dividend), (iii) subdivide its outstanding shares of Common Stock
into a greater number of shares of Common Stock, (iv) combine its outstanding
shares of Common Stock into a smaller number of shares of Common Stock, or
(v)
issue by reclassification of its Common Stock any shares of Common Stock
of the
Company, the number of shares of Common Stock issuable upon exercise of the
Warrants immediately prior thereto shall be adjusted so that the holders
of the
Warrants shall be entitled to receive after the happening of any of the events
described above that number and kind of shares as the holders would have
received had such Warrants been converted immediately prior to the happening
of
such event or any record date with respect thereto.
(b) In
case the Company shall distribute, without receiving consideration therefor,
to
all holders of its Common Stock evidences of its indebtedness or assets
(excluding cash dividends other than as described in Section (8)(a)(ii)),
then
in such case, the number of shares of Common Stock thereafter issuable upon
exercise of the Warrants shall be determined by multiplying the number of
shares
of Common Stock theretofore issuable upon exercise of the Warrants, by a
fraction, of which the numerator shall be the closing bid price per share
of
Common Stock on the record date for such distribution, and of which the
denominator shall be the closing bid price of the Common Stock less the then
fair value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the assets or evidences
of
indebtedness so distributed per share of Common Stock. Such
adjustment shall be made whenever any such distribution is made and shall
become
effective immediately after the record date for the determination of
stockholders entitled to receive such distribution.
(c) Any
adjustment in the number of shares of Common Stock issuable hereunder otherwise
required to be made by this Section 8 will not have to be adjusted if such
adjustment would not require an increase or decrease in one percent (1%)
or more
in the number of shares of Common Stock issuable upon exercise of the
Warrant. No adjustment in the number of Shares purchasable upon
exercise of this Warrant will be made for the issuance of shares of capital
stock to directors, employees or independent Warrantors pursuant to the
Company’s or any of its subsidiaries’ stock option, stock ownership or other
benefit plans or arrangements or trusts related thereto or for issuance of
any
shares of Common Stock pursuant to any plan providing for the reinvestment
of
dividends or interest payable on securities of the Company and the investment
of
additional optional amounts in shares of Common Stock under such
plan.
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(d) Whenever
the number of shares of Common Stock issuable upon the exercise of the Warrants
is adjusted, as herein provided the Warrant Price shall be adjusted (to the
nearest cent) by multiplying such Warrant Price immediately prior to such
adjustment by a fraction, of which the numerator shall be the number of shares
of Common Stock issuable upon the exercise of each share of the Warrants
immediately prior to such adjustment, and of which the denominator shall
be the
number of shares of Common Stock issuable immediately thereafter.
(e) The
Company from time to time by action of its Board of Directors may decrease
the
Warrant Price by any amount for any period of time if the period is
at least twenty (20) days, the decrease is irrevocable during the period
and the
Board of Directors of the Company in its sole discretion shall have made
a
determination that such decrease would be in the best interest of the Company,
which determination shall be conclusive. Whenever the Warrant Price is decreased
pursuant to the preceding sentence, the Company shall mail to holders of
record
of the Warrants a notice of the decrease at least fifteen (15) days prior
to the
date the decreased Warrant Price takes effect, and such notice shall state
the
decreased Warrant Price and the period it will be in effect.
8.2 Mergers,
Etc. In the case of any (i) consolidation or merger of the
Company into any entity (other than a consolidation or merger that does not
result in any reclassification, exercise, exchange or cancellation of
outstanding shares of Common Stock of the Company), (ii) sale, transfer,
lease
or conveyance of all or substantially all of the assets of the Company as
an
entirety or substantially as an entirety, or (iii) reclassification, capital
reorganization or change of the Common Stock (other than solely a change
in par
value, or from par value to no par value), in each case as a result of which
shares of Common Stock shall be converted into the right to receive stock,
securities or other property (including cash or any combination thereof),
each
holder of Warrants then outstanding shall have the right thereafter to exercise
such Warrant only into the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale, transfer, capital
reorganization or reclassification by a holder of the number of shares of
Common
Stock of the Company into which such Warrants would have been converted
immediately prior to such consolidation, merger, sale, transfer, capital
reorganization or reclassification, assuming such holder of Common Stock
of the
Company (A) is not an entity with which the Company consolidated or into
which
the Company merged or which merged into the Company or to which such sale
or
transfer was made, as the case may be (“constituent entity”), or an affiliate of
a constituent entity, and (B) failed to exercise his or her rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer (provided that
if
the kind or amount of securities, cash and other property receivable upon
such
consolidation, merger, sale or transfer is not the same for each share of
Common
Stock of the Company held immediately prior to such consolidation, merger,
sale
or transfer by other than a constituent entity or an affiliate thereof and
in
respect of which such rights or election shall not have been exercised
(“non-electing share”), then for the purpose of this Section 8.2 the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall
be
deemed to be the kind and amount so receivable per share by a plurality of
the
non-electing shares). If necessary, appropriate adjustment shall be
made in the application of the provision set forth herein with respect to
the
rights and interests thereafter of the holder of Warrants, to the end that
the
provisions set forth herein shall thereafter correspondingly be made applicable,
as nearly as may reasonably be, in relation to any shares of stock or other
securities or property thereafter deliverable on the exercise of the
Warrants. The above provisions shall similarly apply to successive
consolidations, mergers, sales, transfers, capital reorganizations and
reclassifications. The Company shall not effect any such
consolidation, merger, sale or transfer unless prior to or simultaneously
with
the consummation thereof the successor company or entity (if other than the
Company) resulting from such consolidation, merger, sale or transfer assumes,
by
written instrument, the obligation to deliver to the holder of Warrants such
shares of stock, securities or assets as, in accordance with the foregoing
provision, such holder may be entitled to receive under this Section
8.2.
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8.3 Statement
of Warrants. Irrespective of any adjustments in the Warrant
Price of the number or kind of shares purchasable upon the exercise of this
Warrant, this Warrant certificate or certificates hereafter issued may continue
to express the same price and number and kind of shares as are stated in
this
Warrant.
9.
Fractional Shares. Any fractional shares of Common
Stock issuable upon exercise of the Warrants shall be rounded to the nearest
whole share or, at the election of the Company, the Company shall pay the
holder
thereof an amount in cash equal to the closing bid price
thereof. Whether or not fractional shares are issuable upon exercise
shall be determined on the basis of the total number of Warrants the holder
is
at the time exercising and the number of shares of Common Stock issuable
upon
such exercise.
10. No
Rights as Stockholders: Notices to
Warrantholders. Nothing contained in this Warrant shall be
construed as conferring upon the Warrantholder or its transferees any rights
as
a stockholder of the Company, including the right to vote, receive dividends,
consent or receive notices as a stockholder with respect to any meeting of
stockholders for the election of directors of the Company or any other
matter. If, however, at any time prior to the Expiration Time and
prior to the exercise of this Warrant, any of the following events shall
occur:
(a) any
action which would require an adjustment pursuant to Section 8.1;
or
(b) a
dissolution, liquidation or winding up of the Company or any consolidation,
merger or sale of its property, assets and business as an entirety; then
in any
one or more of said events, the Company shall give notice in writing of such
event to the Warrantholder at least ten (10) days prior to the date fixed
as a
record date or the date of closing the transfer books for the determination
of
the shareholders entitled to any relevant dividend, distribution, subscription
rights, or other rights or for the effective date of any dissolution,
liquidation of winding up or any merger, consolidation, or sale of substantially
all assets, but failure to mail or receive such notice or any defect therein
or
in the mailing thereof shall not affect the validity of any such action
taken. Such notice shall specify such record date or the effective
date, as the case may be.
11. Registration
Rights.
11.1 Piggyback
Registration
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(a)
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Each
time that the Company proposes to Register a public offering solely
of its
Common Stock (not including an offering of Common stock issuable
upon
conversion or exercise of other securities), other than pursuant
to a
Registration Statement on Form S-4 or Form S-8 or similar or successor
forms (collectively,"Excluded Forms"), the Company shall promptly
give
written
notice of such proposed Registration to all holders of Shares,
which shall
offer such holders the right to request inclusion of any Registrable
Securities in the proposed
Registration.
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(b)
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Each
holder of Shares shall have ten (10) days or such longer period
as shall
be set forth in the notice from the receipt of such notice to deliver
to
the Company a written request specifying the number of shares of
Registrable Securities such holder intends to sell and the holder's
intended plan of disposition.
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(c)
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In
the event that the proposed Registration by the Company is, in
whole or in
part, an underwritten public offering of securities of the Company,
any
request under Section 11.1 (b) may specify that the Registrable
Securities
be included in the underwriting on the same terms and conditions
as the
shares of Common Stock, if any, otherwise being sold through underwriters
under such Registration.
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(d)
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Upon
receipt of a written request pursuant to Section 11.1 (b), the
Company
shall promptly use its best efforts to cause all such Registrable
Securities to be Registered, to the extent required to permit sale
or
disposition as set forth in the written
request.
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(e)
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Notwithstanding
the foregoing, if the managing underwriter of an underwritten public
offering, determines and advises in writing that the inclusion
of all
Registrable Securities proposed to be included in the underwritten
public
offering, together with any other issued and outstanding shares
of Common
Stock proposed to be included therein by holders other than the
holders of
Registrable Securities (such other shares hereinafter collectively
referred to as the "Other Shares"), would interfere with the successful
marketing of the securities proposed to be included in the underwritten
public offering, then the number of such shares to be included
in such
underwritten public offering shall be reduced, and shares shall
be
excluded from such underwritten public offering in a number deemed
necessary by such managing underwriter, first by excluding shares
held by
the directors, officers, employees and founders of the Company,
and then,
to the extent necessary, by excluding Registrable Securities participating
in such underwritten public offering, pro rata based on the
number of shares of Registrable Securities each such holder proposed
to
include.
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(f)
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All
Shares that are not included in the underwritten public offering
shall be
withheld from the market by the holders thereof for a period, not
to
exceed 12 months following a public offering, that the managing
underwriter reasonably determines as necessary in order to effect
the
underwritten public offering. The holders of such Shares shall
execute such documentation as the managing underwriter reasonably
requests
to evidence this lock-up.
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12. Miscellaneous.
12.1 Benefits
of this Agreement. Nothing in this Warrant shall be
construed to give to any person or corporation other than the Company and
the
Warrantholder any legal or equitable right, remedy or claim under this Warrant,
and this Warrant shall be for the sole and exclusive benefit of the Company
and
the Warrantholder.
12.2 Rights
Cumulative; Waivers. The rights of each of the parties under
this Warrant are cumulative. The rights of each of the parties
hereunder shall not be capable of being waived or varied other than by an
express waiver or variation in writing. Any failure to exercise or
any delay in exercising any of such rights shall not operate as a waiver
or
variation of that or any other such right. However, the holders of a
majority in principal amount of the Warrants may waive a default or rescind
the
declaration of an Exercise Default and its consequences except for a default
in
the exercise into Common Stock. Any defective or partial exercise of
any of such rights shall not preclude any other or further exercise of that
or
any other such right. No act or course of conduct or negotiation on
the part of any party shall in any way preclude such party from exercising
any
such right or constitute a suspension or any variation of any such
right.
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12.3 Benefit;
Successors Bound. This Warrant and the terms, covenants,
conditions, provisions, obligations, undertakings, rights, and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the parties hereto
and
their heirs, executors, administrators, representatives, successors, and
permitted assigns.
12.4 Entire
Agreement. This Warrant contains the entire agreement
between the parties with respect to the subject matter hereof. There
are no promises, agreements, conditions, undertakings, understandings,
warranties, covenants or representations, oral or written, express or implied,
between them with respect to this Warrant or the matters described in this
Warrant, except as set forth in this Warrant. Any such negotiations,
promises, or understandings shall not be used to interpret or constitute
this
Warrant.
12.5 Assignment. This
Warrant may be assigned if the Assignment of Warrant, attached as Exhibit
2 to
this Warrant, is properly completed, executed and delivered to the
Company.
12.6 Amendment. This
Warrant may be amended only by an instrument in writing executed by the parties
hereto.
12.7 Severability. Each
part of this Warrant is intended to be severable. In the event that
any provision of this Warrant is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall
be
severed or modified to the extent necessary to render it enforceable and
as so
severed or modified, this Warrant shall continue in full force and
effect.
12.8 Notices. Notices
required or permitted to be given hereunder shall be in writing and shall
be
deemed to be sufficiently given when personally delivered (by hand, by courier,
by telephone line facsimile transmission, receipt confirmed, or other means)
or
sent by certified mail, return receipt requested, properly addressed and
with
proper postage pre-paid (i) if to the Company, at its executive office (ii)
if
to the Warrantholder, at the address set forth under its name in the
subscription agreement for this Warrant, with a copy to its designated attorney
and (iii) if to any other Warrantholder, at such address as such Warrantholder
shall have provided in writing to the Company, or at such other address as
each
such party furnishes by notice given in accordance with this section, and
shall
be effective, when personally delivered, upon receipt and, when so sent by
certified mail, four (4) business days after deposit with the United States
Postal Service.
12.9 Governing
Law. This Agreement shall be governed by the interpreted in
accordance with the laws of the State of Arizona without reference to its
conflicts of laws rules or principles.
12.10 Forum
Selection and Consent to Jurisdiction. Any litigation based
thereon, or arising out of, under, or in connection with, this agreement
or any
course of conduct, course of dealing, statements (whether oral or written)
or
actions of the Company or Warrantholder shall be brought and maintained
exclusively in the federal courts of the State of Arizona without reference
to
its conflicts of laws rules or principles. The Company hereby
expressly and irrevocably submits to jurisdiction exclusively with the federal
Courts of the State of Arizona for the purpose of any such litigation as
set
forth above and irrevocably agrees to be bound by any final judgment rendered
thereby in connection with such litigation. The Company further
irrevocably consents to the service of process by registered mail, postage
prepaid, or by personal service within or without the State of
Arizona. The Company hereby expressly and irrevocably waives, to the
fullest extent permitted by law, any objection which it may have or hereafter
may have to the laying of venue of any such litigation brought in any such
court
referred to above and any claim that any such litigation has been brought
in any
inconvenient forum. To the extent that the Company has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property. The Company hereby irrevocably waives such immunity in
respect of its obligations under this agreement and the other loan
documents.
9
12.11 Waiver
of Jury Trial. The Warrantholder and the Company hereby
knowingly, voluntarily and intentionally waive any rights they may have to
a
trial by jury in respect of any litigation based hereon, or arising out of,
under, or in connection with, this agreement, or any course of conduct, course
of dealing, statements (whether oral or written) or actions of the Warrantholder
or the Company. The Company acknowledges and agrees that it has
received full and sufficient consideration for this provision and that this
provision is a material inducement for the Warrantholder entering into this
agreement.
12.12 Consents. The
person signing this Warrant on behalf of the Company hereby represents and
warrants that he has the necessary power, consent and authority to execute
and
deliver this Warrant on behalf of the Company.
12.13 Further
Assurances. In addition to the instruments and documents to
be made, executed and delivered pursuant to this Warrant, the parties hereto
agree to make, execute and deliver or cause to be made, executed and delivered,
to the requesting party such other instruments and to take such other actions
as
the requesting party may reasonably require to carry out the terms of this
Warrant and the transactions contemplated hereby.
12.14 Section
Headings. The Section headings in this Warrant are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Warrant.
12.15 Construction. Unless
the context otherwise requires, when used herein, the singular shall be deemed
to include the plural, the plural shall be deemed to include each of the
singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
IN
WITNESS WHEREOF, the parties have caused this Warrant to be duly executed,
all
as of the day and year first above written.
| COMPANY: | |||
| Studio One Media, Inc. | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Xxxxxxx X. Xxxx, President | |||
10
EXHIBIT
1
ELECTION
TO EXERCISE WARRANT
The
undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant for, and to purchase thereunder, _______shares
of Common Stock of Studio One Media, Inc., a Delaware corporation (“Shares”)
provided for therein, and requests that certificates for the Shares be issued
in
the name of:*
Name:___________________________________________________________
Address:_________________________________________________________
Social
Security No.________________________________________________
or
Tax ID
Number:_________________________________________________
and,
if
such number of Shares shall not be all of the Shares purchasable under the
Warrant, that a new Warrant certificate for the balance of the Shares
purchasable under the within Warrant be registered in the name of the
undersigned Warrantholder or his Assignee* as indicated below and delivered
to
the address stated below:
Dated:
_________________, 20___
Name
of
Warrantholder of
Assignee
(Please Print)_____________________________________________
Address:_________________________________________________________
Signature:________________________________________________________
Signature
Guaranteed:______________________________________________
Signature
of Guarantor
*
The Warrant contains restrictions on sale, assignment or transfer.
** Note: The
above signature must correspond with the name as written onthe face of this
Warrant certificate in every particular, without alteration or enlargement
or
any change whatever, unless this warrant has been assigned.
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EXHIBIT
2
ASSIGNMENT
OF WARRANT
(To
be
signed only upon assignment of Warrant)*
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________
________________________________________________________________
(Name,
Address and S.S./E.I. No. of Assignee must be Printed or
Typewritten)
the
within Warrant issued by Studio One Media, Inc., a Delaware corporation,
hereby
irrevocably constituting and appointing _______________________________ Attorney
to transfer said Warrant on the books of the Company, with full power of
substitution in the premises.
Dated:
___________________, 20____
_______________________________________**
Signature
of Registered
Holder
Signature
Guaranteed: ________________________________________
Signature
of Guarantor
* The
Warrant contains restrictions on sale, assignment or transfer.
** Note: The
signature of this
assignment must correspond with the name as it appears upon the face of the
Warrant certificate in every particular, without alteration or enlargement
or any change whatever.
12
