EXHIBIT 6.11
THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK ISSUABLE UPON ITS
EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS, AND NO SALE OR TRANSFER
THEREOF MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT OR AN
OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
No. W-____
TOTAL FILM GROUP, INC.
Common Stock Purchase Warrant
Total Film Group, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for value received,
________________________________________, or registered permitted assigns, is
entitled, subject to the terms set forth below, to purchase from the Company
at any time or from time to time before 5:30 P.M., Pacific Standard Time, on
November 5,2002, ________________ ( ) shares of fully paid and nonassessable
shares of Common Stock, $.001 par value, of the Company, at a purchase price
per share of $3.75 (such purchase price per share as adjusted from time to
time as herein provided is referred to herein as the "Purchase Price"). The
number and character of such shares of Common Stock and the Purchase Price
are subject to adjustment as provided herein.
This Warrant is one of a series of Common Stock Purchase Warrants
(the "Warrants") evidencing the right to purchase shares of Common Stock of
the Company, issued pursuant to the offering of Warrants made by the Company
and of shares of common stock of Total China, Inc. pursuant to the
Confidential Private Placement Memorandum (the "Offering"), dated October 29,
1999 (the "Memorandum"), a copy of which is on file at the principal office
of the Company. The holder of this Warrant shall be entitled to all of the
benefits of the Offering, as provided therein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" shall include Total Film Group, and any
corporation which shall succeed or assume the obligations of the Company
hereunder.
(b) The term "Common Stock" includes the Company's Common Stock,
$.001 par value per share, as authorized on the date of the Agreement and any
other securities into which or for which any of such Common Stock may be
convened or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
(c) "Current Market Price" shall mean, on any date specified herein,
the average of the daily Market Price during the 10 consecutive trading days
commencing 15 trading days before such date, except that, if on any such date
the shares of Common Stock are not listed or admitted for trading on any
national securities exchange or quoted in the over-the-counter market, the
Current Market Price shall be the Market Price on such date.
(d) "Market Price" shall mean, on any date specified herein, the
amount per share of the Common Stock, equal to (a) the last reported sale
price of such Common Stock, regular way, on such date or, in case no such
sale takes place on such date, the average of the closing bid and asked
prices thereof, regular way, on such date, in either case as officially
reported on the principal national securities exchange on which such Common
Stock is then listed or admitted for trading, or (b) if such Common Stock is
not then listed of admitted for trading on any national securities exchange
but is designated as a national market system security by the NASD, the last
reported trading price of the Common Stock on such date, or (c) if there
shall have been no trading on such date or if the Common Stock is not so
designated, the average of the closing bid and asked prices of the Common
Stock on such date as shown by the NASD automated quotation system or the
Nasdaq SmallCap Market, or (d) if such Common Stock is not then listed or
admitted for trading on any national exchange or quoted in the
over-the-counter market, the fair value thereof (as of a date which is within
20 days of the date as of which the determination is to be made) determined
in good faith by the Board of Directors of the Company.
(e) "NASD" shall mean the National Association of Securities
Dealers, Inc.
1. Exercise of Warrant.
1.1 This Warrant may be exercised by the Holder hereof, in whole or
in part, at any time or from time to time prior to the expiration date, by
surrendering to the Company at its principal office this Warrant, with the
form of Election to Purchase Shares attached hereto as Exhibit A (or a
reasonable facsimile thereof) duly executed by the holder and accompanied by
payment of the Purchase Price for the number of shares of Common Stock
specified in such form.
1.2 Payment of the Purchase Price may be made as follows (or by any
combination of the following): (i) in United States currency by cash or
delivery of a certified check or bank draft payable to the order of the
Company or by wire transfer to the Company, (ii) by cancellation of such
number of the shares of Common Stock otherwise issuable to the holder upon
such exercise as shall be specified in such Election to Purchase Shares, such
that the excess of the aggregate Current Market Price of such specified
number of shares on the date of exercise over the portion of the Purchase
Price attributable to such shares shall equal the Purchase Price attributable
to the shares of Common Stock to be issued upon such exercise, in which case
such amount shall be deemed to have been paid to the Company and the number
of shares issuable upon such exercise shall be reduced by such specified
number, or (iii) by surrender to the Company for cancellation certificates
representing shares of Common Stock of the Company owned by the holder
(properly endorsed for transfer in blank) having a Current Market Price on
the date of Warrant exercise equal to the Purchase Price.
1.3 Partial Exercise. This Warrant maybe exercised in part by
surrender of this Warrant in the manner and at the place provided in Section
1.1 except that the amount payable by the holder on such partial exercise
shall be the amount specified by the holder in the form of Election to
Purchase Shares attached hereto as Exhibit A. On any such partial exercise
the Company at its expense will forthwith issue and deliver to or upon the
order of the holder hereof a new Warrant or Warrants of like tenor in the
name of the holder hereof or as such holder (upon payment by such holder of
any applicable transfer taxes) may request, calling in the aggregate on the
face or faces thereof for the number of shares of Common Stock for which such
Warrant or Warrants may still be exercised.
1.4 Trustee for Warrantholders. In the event that a bank or trust
company shall have been appointed as trustee for the holders of the Warrants
pursuant to Section 4.2, such bank or trust company shall have all the powers
and duties of a warrant agent appointed pursuant to Section 12 and shall
accept, in its own name for the account of the Company or such successor
person as may be entitled thereto, all amounts otherwise payable to the
Company or such successor, as the case may be, on exercise of this Warrant
pursuant to this Section 1.
2. Delivery of Stock Certificates. etc. on Exercise. As soon as practicable
after the exercise of this Warrant in full or in part, and in any event
within 10 days thereafter, the Company at its expense (including the payment
by it of any applicable issue taxes) will cause to be issued in the name of
and delivered to the holder hereof, or as such holder (upon payment by such
holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws)
may direct, a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such holder shall be entitled
on such exercise, plus, in lieu of any fractional share to which such holder
would otherwise be entitled, cash equal to such fraction multiplied by the
then current market value of one full share, together with any other stock or
other securities and property (including cash, where applicable) to which
such holder is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustment for Dividends in Other Stock. Property. etc.: Reclassification.
etc. In case at any time or from time to time, the holders of Common Stock
shall have received, or (on or after the record date fixed for the
determination of shareholders eligible to receive) shall have become entitled
to receive, without payment therefor,
(a) other or additional stock or other securities or property
(other than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up,
reclassification, recapitalization, combination of shares or
similar corporate rearrangement,
other than additional shares of Common Stock issued as a stock dividend or in
a stock-split (adjustments in respect of which are provided for in Section
5.3), then and in each such case the holder of this Warrant, on the exercise
hereof as provided in Section 1, shall be entitled to receive the amount of
stock and other securities and property (including cash in the cases referred
to in clauses (b) and (c) of this Section 3) which such holder would hold on
the date of such exercise if on the date hereof he had been the holder of
record of the number of shares of Common Stock called for on the face of this
Warrant and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and all such other
or additional stock and other securities and property (including cash in the
cases referred to in clauses (b) and (c) of this Section 3) receivable by him
as aforesaid during such period, giving effect to all adjustments called for
during such period by Sections 4 and 5.
4. Adjustment for Reorganization. Consolidation. Merger. etc.
4.1 Reorganization. In case at any time or from time to time, the
Company shall (a) effect a reorganization, (b) consolidate with or merge into
any other person or party, or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Company, then, in each such case, the
holder of this Warrant, on the exercise hereof as provided in Section 1 at
any time after the consummation of such reorganization, consolidation or
merger or the effective date of such dissolution as the case may be, shall
receive, in lieu of the Common Stock issuable on such exercise prior to such
consummation or such effective date, the stock and other securities and
property (including cash) to which such holder would have been entitled upon
such consummation or in connection with such dissolution, as the case may be,
if such holder had so exercised this Warrant immediately prior thereto, all
subject to further adjustment thereafter as provided in Sections 3 and 5.
4.2 Dissolution. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or
assets, the Company, prior to such dissolution, shall at its expense deliver
or cause to be delivered the stock and other securities and property
(including cash, where applicable) receivable by the holders of the Warrants
after the effective date of such dissolution pursuant to this Section 4 to a
bank or trust company having its principal office in New York, New York, as
trustee for the holder or holders of the Warrants.
4.3 Continuation of Terms. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to
in this Section 4, this Warrant shall continue in hill force and effect and
the terms hereof shall be applicable to the shares of stock and other
securities and property receivable on the exercise of this Warrant after the
consummation of such reorganization, consolidation or merger or the effective
date of dissolution following any such transfer, as the case may be, and
shall be binding upon the issuer of any such stock or other securities,
including, in the case of any such transfer, the person acquiring all or
substantially all of the properties or assets of the Company, whether or not
such person shall have expressly assumed the terms of this Warrant as
provided in Section 6.
5. Adjustment for Issue or Sale of Common Stock at Less Than The Purchase
Price in Effect.
5.1 General. If the Company shall, at any time or from time to time,
issue any additional shares of Common Stock (other than shares of Common
Stock excepted from the provisions of this Section 5 by Section 5.4) for a
Net Consideration Per Share less than the Purchase Price in effect
immediately prior to such issuance, then, and in each such case:
(a) the Purchase Price shall be lowered to an amount
determined by multiplying such Purchase Price then in effect by a fraction:
(1) the numerator of which shall be (a) the number
of shares of Common Stock outstanding (excluding treasury shares, but
including for this purpose shares of Common Stock issuable upon the exercise
of the Warrants) immediately prior to the issuance of such additional shares
of Common Stock, plus (b) the number of shares of Common Stock which the net
aggregate consideration, if any, received by the Company for the total number
of such additional shares of Common Stock so issued would purchase at the
Purchase Price in effect immediately prior to such issuance, and
(2) the denominator of which shall be (a) the
number of shares of Common Stock outstanding (excluding treasury shares, but
including for this purpose shares of Common Stock issuable upon the exercise
of the Warrants) immediately prior to the issuance of such additional shares
of Common Stock, plus (b) the number of such additional shares of Common
Stock so issued; and
(b) the holder of this Warrant shall thereafter, on the
exercise hereof as provided in Section 1, be entitled to receive the number
of shares of Common Stock determined by multiplying the number of shares of
Common Stock which would otherwise (but for the provisions of this Section
5.1) be issuable on such exercise by the fraction of which (i) the numerator
is the Purchase price which would otherwise (but for the provisions of this
Section 5.1) be in effect, and (ii) the denominator is the Purchase Price in
effect on the date of such exercise.
5.2 Definitions. etc. For purposes of this Section 5 and
Section 7:
The issuance of any warrants, options or other subscription or
purchase rights with respect to shares of Common Stock and the issuance of
any securities convertible into or exchangeable for shares of Common Stock
(or the issuance of any warrants, options or any rights with respect to such
convertible or exchangeable securities) shall be deemed an issuance at such
time of such Common Stock if the Net Consideration Per Share which may be
received by the Company for such Common Stock (as hereinafter determined)
shall be less than the Purchase Price at the time of such issuance and,
except as hereinafter provided, an adjustment in the Purchase Price and the
number of shares of Common Stock issuable upon exercise of this Warrant shall
be made upon each such issuance in the manner provided in Section 5.1. Any
obligation, agreement or undertaking to issue warrants, options, or other
subscription or purchase rights at any time in the future shall be deemed to
be an issuance at the time such obligation, agreement or undertaking is made
or arises. No adjustment of the Purchase Price and the number of shares of
Common Stock issuable upon exercise of this Warrant shall be made under
Section 5.1 upon the issuance of any shares of Common Stock which are issued
pursuant to the exercise of any warrants, options or
other subscription or purchase rights or pursuant to the exercise of any
conversion or exchange rights in any convertible securities if any adjustment
shall previously have been made upon the issuance of any such warrants,
options or other rights or upon the issuance of any convertible securities
(or upon the issuance of any warrants, options or any rights therefor) as
above provided. Any adjustment of the Purchase Price and the number of shares
of Common Stock issuable upon exercise of this Warrant with respect to this
Section 5.2 which relates to warrants, options or other subscription or
purchase rights with respect to shares of Common Stock shall be disregarded
if, as, and to the extent that such warrants, options or other subscription
or purchase rights expire or are canceled without being exercised, so that
the Purchase Price effective immediately upon such cancellation or expiration
shall be equal to the Purchase Price that otherwise would have been in effect
at the time of the issuance of the expired or canceled warrants, options or
other subscriptions or purchase rights, with such additional adjustments as
would have been made to that Purchase Price had the expired or canceled
warrants, options or other subscriptions or purchase rights not been issued.
For purposes of this Section 5.2, the "Net Consideration Per Share"
which may be received by the Company shall be determined as follows:
(A) The "Net Consideration Per Share" shall mean the amount
equal to the total amount of consideration, if any, received by the Company
for the issuance of such warrants, options, subscriptions, or other purchase
rights or convertible or exchangeable securities, plus the minimum amount of
consideration, if any, payable to the Company upon exercise or conversion
thereof, divided by the aggregate number of shares of Common Stock that would
be issued if all such warrants, options, subscriptions, or other purchase
rights or convertible or exchangeable securities were exercised, exchanged or
converted.
(B) The "Net Consideration Per Share" which may be received
by the Company shall be determined in each instance as of the date of
issuance of warrants, options, subscriptions or other purchase rights, or
convertible or exchangeable securities without giving effect to any possible
future price adjustments or rate adjustments which may be applicable with
respect to such warrants, options, subscriptions or other purchase rights or
convertible securities.
For purposes of this Sections, if a part or all of the consideration
received by the Company in connection with the issuance of shares of the
Common Stock or the issuance of any of the securities described in this
Section 5 consists of property other than cash, such consideration shall be
deemed to have the same value as shall be determined in good faith by the
Board of directors of the Company.
This Section 5.2 shall not apply under any of the circumstances
described in Section 5.4.
5.3 Extraordinary Events. In the event that the Company shall (i)
issue additional shares of the Common Stock as a dividend or other
distribution on outstanding Common Stock, (ii) subdivide its outstanding
shares of Common Stock, or (iii) combine its outstanding shares of the Common
Stock into a smaller number of shares of the Common Stock, then, in each such
event, the Purchase Price shall, simultaneously with the happening of such
event, be adjusted by multiplying the then Purchase Price by a fraction, the
numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such event and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event, and the product so obtained shall
thereafter be the Purchase Price then in effect. The Purchase Price, as so
adjusted, shall be readjusted in the same manner upon the happening of any
successive event or events described herein in this Section 5.3. The holder
of this Warrant shall thereafter, on the exercise hereof as provided in
Section 1, be entitled to receive that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this Section 5.3) be issuable on such
exercise by a fraction of which (i) the numerator is the Purchase Price which
would otherwise (but for the provisions of this Section 5.3) be in effect,
and (ii) the denominator is the Purchase Price in effect on the date of such
exercise.
5.4 Excluded Shares. Section 5.1 shall not apply to the (i) issuance
of shares of Common Stock, or options therefor, to directors, officers,
employees, advisors and consultants of the Company on and after the date of
this Warrant pursuant to any stock option, stock purchase, stock ownership or
compensation plan approved by the compensation committee of the Company's
Board of Directors, (ii) issuance of shares of Common Stock upon the exercise
of all options and warrants to purchase Common Stock outstanding as of the
date of this Warrant or upon conversion of debt outstanding as of such date,
and (iii) the issuance of shares of Common Stock upon the exercise of the
warrants issued or issuable pursuant to the Company's Confidential Private
Placement Memorandum dated October 29, 1999, as amended from time to time.
6. No Dilution or Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of the Warrants, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of
all such action as may be necessary or appropriate in order to protect the
rights of the holders of the Warrants against dilution or other impairment.
Without limiting the generality of the foregoing, the Company (a) will not
increase the par value of any shares of stock receivable on the exercise of
the Warrants above the amount payable therefor on such exercise, (b) will
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
stock on the exercise of all Warrants from time to time outstanding, and (c)
will not transfer all or substantially all of its properties and assets to
any other person (corporate or otherwise), or consolidate with or merge into
any other person or permit any such person to consolidate with or merge into
the Company (if the Company is not the surviving person), unless such other
person shall expressly assume in writing and will be bound by all the terms
of the Warrants.
7. Accountants' Certificate as to Adjustments. In each case of any adjustment
or readjustment in the shares of Common Stock issuable on the exercise of the
Warrants, the Company at its expense will promptly cause its Treasurer or
Chief Financial Officer or, if the holder of a Warrant so requests,
independent certified public accountants selected by the Company to compute
such adjustment or readjustment in accordance with the terms of the Warrants
and prepare a certificate setting forth such adjustment or readjustment and
showing in
detail the facts upon which such adjustment or readjustment is based,
including a statement of (a) the consideration received or receivable by the
Company for any additional shares of Common Stock issued or sold or deemed to
have been issued or sold, (b) the number of shares of Common Stock
outstanding or deemed to be outstanding, and (c) the Purchase Price and the
number of shares of Common Stock to be received upon exercise of this
Warrant, in effect immediately prior to such issue or sale and as adjusted
and readjusted as provided in this Warrant. The Company will forthwith mail a
copy of each such certificate to each holder of a Warrant, and will, on the
written request at any time of any holder of a Warrant, furnish to such
holder a like certificate setting forth the Purchase Price at the time in
effect and showing how it was calculated.
8. Notices of Record Date. etc. In the event of
(a) any taking by the Company of a record of the holders of
any class or securities for the purpose of determining the holders thereof
who are entitled to receive any dividend or other distribution, or any right
to subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or
any transfer of all or substantially all the assets of the Company to or
consolidation or merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation
or winding-up of the Company, or
(d) any proposed issue or grant by the Company of any
shares of stock of any class or any other securities, or any right or option
to subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities (other than the issue of Common Stock on the
conversion of the Notes and the exercise of the Warrants), then and in each
such event the Company will mail or cause to be mailed to each registered
holder of a Warrant a notice specifying (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right and
stating the amount and character of such dividend, distribution or right,
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation
or winding-up is to take place, and the time, if any is to be fixed, as of
which the holders of record of Common Stock shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable on
such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up, and (iii) the
amount and character of any stock or other securities, or rights or options
with respect thereto, proposed to be issued or granted, the date of such
proposed issue or grant and the persons or class operations to whom such
proposed issue or grant is to be offered or made. Such notice shall be mailed
at least 20 days prior to the date specified in such notice on which any such
action is to be taken.
9. Reservation of Stock, etc., Issuable on Exercise of Warrants. The Company
will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrants, all shares of Common Stock from
time to time issuable on the exercise of the Warrants.
10. Exchange of Warrants. On surrender for exchange of any Warrant, properly
endorsed, to the Company, the Company at its expense will issue and deliver
to or on the order of the holder thereof a new Warrant or warrants of like
tenor, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws)
may direct, calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock called for on the face or faces of the
Warrant or Warrants so surrendered.
11. Replacement of Warrants. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of any Warrant
and, in the case of any such loss, theft or destruction of any Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. Warrant Agent. The Company hereby appoints Interwest Transfer Co., Inc.,
with offices in Salt Lake City, Utah, as its agent for the purpose of issuing
Common Stock on the exercise of the Warrants pursuant to Section 1,
exchanging Warrants pursuant to Section 10, and replacing Warrants pursuant
to Section 11, or any of the foregoing, and thereafter any such issuance,
exchange or replacement, as the case maybe, shall be made at such office by
such agent. The Company may change such agent and designate a new agent in
the United States for the above-described purposes by written notice to each
holder of a Warrant.
13. Remedies. The Company stipulates that the remedies at law of the holder
of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that a holder of this Warrant
may suffer irreparable harm and that such terms may be specifically enforced
by a decree by a court of competent jurisdiction for the specific performance
of any agreement contained herein or by an injunction against a violation of
any of the terms hereof or otherwise.
14. Negotiability. This Warrant is issued upon the following terms, to all of
which each holder or owner hereof by the taking hereof consents and agrees:
(a) subject to compliance with all applicable securities laws, title
to this Warrant may be transferred by endorsement (by the holder hereof
executing the form of assignment at the end hereof) and delivery in the same
manner as in the case of a negotiable instrument transferable by endorsement
and delivery;
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by
endorsement and delivery hereof to a bona fide purchaser hereof for value;
each prior taker or owner waives and renounces all of his equities or rights
in this Warrant in favor of each such bona fide purchaser, and each such bona
fide purchaser shall acquire absolute title hereto and to all rights
represented hereby; and
(c) until this Warrant is transferred on the books of the Company,
the Company may treat the registered holder hereof as the absolute owner
hereof for all purposes, notwithstanding any notice to the contrary.
15. Notices. All notices or other communications required or permitted to be
given pursuant to this Agreement shall be in writing and shall be considered
as duly given on (a) the date of delivery, if delivered in person, by
nationally recognized overnight delivery service or by facsimile or (b) three
days after mailing if mailed from within the continental United States by
registered or certified mail, return receipt requested to the party entitled
to receive the same, if to the Company, Total Film Group, Inc., 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, with a copy to Law
Offices of Xxxxxxx X. Field, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attn: Xxxxxxx X. Field, Esq. And if to the holder of a Warrant, at the
address of such holder shown on the books of the Company. Any party may
change his or its address by giving notice to the other party stating his or
its new address. Commencing on the 10th day after the giving of such notice,
such newly designated address shall be such party's address for the purpose
of all notices or other communications required or permitted to be given
pursuant to this Agreement.
16. Governing Law. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State
of California, without regard to its conflicts of law principles. All parties
hereto (i) agree that any legal suit, action or proceeding arising out of or
relating to this Agreement shall be instituted only in a federal or state
court in Los Angeles, California or in the State of California, (ii) waive
any objection which they may now or hereafter have to the laying of the venue
of any such suit, action or proceeding, and (iii) irrevocably submit to the
jurisdiction of such federal or state court in Los Angeles, California in any
such suit, action or proceeding, but such consent shall not constitute a
general appearance or be available to any other person who is not a party to
this Agreement. All parties hereto agree that the mailing of any process in
any suit, action or proceeding in accordance with the notice provisions of
this Agreement shall constitute personal service thereof.
17. Entire Agreement; Waiver of Breach. This Agreement constitutes the entire
agreement among the parties and supersedes any prior agreement or
understanding among them with respect to the subject matter hereof, and it
may not be modified or amended in any manner other than as provided herein;
and no waiver of any breach or condition of this Agreement shall be deemed to
have occurred unless such waiver is in writing, signed by the party against
whom enforcement is sought, and no waiver shall be claimed to be a waiver of
any subsequent breach or condition of a like or different nature.
18. Severability. If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner
affect or render invalid or unenforceable any other severable provision of
this Agreement, and this Agreement shall be carried out as if any such
invalid or unenforceable provision were not contained herein.
19. Amendment. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
20. Expiration. The right to exercise this Warrant shall expire at 5:30 P.M.,
Pacific Standard time, on November 5, 2002.
21. Attorneys Fees and Costs. In the event of any litigation arising under or
relating to this Warrant, the prevailing party in such dispute shall be
entitled to recover its costs and expenses, including reasonable attorney
fees, from the other.
22. Redemption. The Company, at its option, may redeem this Warrant, upon not
less than 30 days' notice, at a price of $0.25 per Warrant, provided that the
shares of the Company's Common Stock are then publicly traded on the NASDAQ
electronic bulletin board or on any national securities exchange closing sale
price of a share of the Common Stock of the Company has been at least $10.00
per share for 10 consecutive business days ending within 10 days of the date
of the notice of redemption. In the event that the Company exercises its
right to redeem this Warrant, this Warrant will be exercisable until the
close of business on the date fixed for redemption in such notice. If any
Warrant called for redemption is not exercised by such time, it will cease to
be exercisable and the holder thereof will be entitled only to the redemption
price.
23. Restrictions on Transferability; Restrictive Legend. The holder
acknowledges that the shares of Common Stock issuable upon exercise of this
Warrant are subject to restrictions under applicable Federal and state
securities laws. Each certificate representing shares of Common Stock issued
shall, upon the exercise of this Warrant, bear the following legend in
addition to such other restrictive legends as may be required by law:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws, and no sale or transfer thereof may be effected
without an effective registration statement or an opinion of counsel for the
holder, satisfactory to the company, that such registration is not required
under the act and any applicable state securities laws."
Dated: November 30, 1999
TOTAL FILM GROUP INC.
By: /s/ Xxxxxx Xxxxx
President
EXHIBIT A to
Common Stock Purchase Warrant
[FORM OF]
ELECTION TO PURCHASE SHARES
The undersigned hereby irrevocably elects to exercise the Warrant to
purchase ____ shares of Common Stock, par value $001 per share ("Common
Stock"), of Total Film Group, Inc. and hereby elects to make payment by
placing a checkmark next to the selected method set forth below:
(a) makes payment of $ _____ therefor; _____
(b) makes payment therefor by reduction pursuant to Section 1.2
(b)(ii) of the Warrant of the number of shares of Common Stock
otherwise issuable to the Holder upon exercise of the Warrant
by _______ shares; or _____
(c) makes payment therefor by delivery of the following Common
Stock certificates of the Company (properly endorsed for
transfer in blank) for cancellation by the Company pursuant to
Section 1.2 or 1.3 of the Warrant, certificates of which are
attached hereto for cancellation [list certificates by number
and amount]. _____
The undersigned hereby requests that certificates for such shares be
issued and delivered as follows:
ISSUE TO:
--------------------------------------------------------------------
(NAME)
-----------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
-----------------------------------------------------------------------------
(SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER)
DELIVER TO:
------------------------------------------------------------------
(NAME)
-----------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
If the number of shares of Common Stock purchased (and/or reduced) hereby is
less than the number of shares of Common Stock covered by the Warrant, the
undersigned requests that a new Warrant representing the number of shares of
Common Stock not so purchased (or reduced) be issued and delivered as follows:
ISSUE TO:
--------------------------------------------------------------------
(NAME)
-----------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
DELIVER TO:
------------------------------------------------------------------
(NAME)
-----------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
Date:
------------------- --------------------------------------
(Signature)
(Signature must conform to name of holder
as specified on the face of the Warrant)
--------------------------------------
(Print Name)
--------------------------------------
(Street Address)
--------------------------------------
(City, State and Zip Code)
--------------------------------------
(Person's Social Security Number
or Tax Identification Number)
FORM OF ASSIGNMENT
(To be signed only on transfer of warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto ____________________________ the right represented by the
within Warrant to purchase shares of Common Stock of Total Film Group, Inc.
to which the within Warrant relates, and appoints
________________________________ as its attorney to transfer such right on
the books of World Wireless Communications, Inc. with full power of
substitution in the premises.
Dated:
------------------- --------------------------------------
(Signature)
(Signature must conform to name of holder
as specified on the face of the Warrant)
--------------------------------------
(Print Name)
--------------------------------------
(Street Address)
--------------------------------------
(City, State and Zip Code)
--------------------------------------
(Person's Social Security Number
or Tax Identification Number)
Signed in the presence of:
------------------------
Schedule of Subscribers
Number of Warrant
Name Warrants Number
Xxxxx Xxxxxx 9,090 W-China 45
Xxxxxxx Xxxx 2,411 W-China 1
Xxxxxxx X. Xxxxxxxx 2,273 W-China 3
Xxxxx Xxxx 2,225 W-China 4
Xxxxxxx Xxxxxxx 4,545 W-China 50
Xxxxxxx Xxxxxxx, Xx. 13,635 W-China 48
Xxxxxxx X. Xxxxxx 2,411 W-China 2
Xxxxx du Boef 4,545 W-China 6
Xxxxxxxx Xxxxxx 40,000 W-China 7
Xxxxx Xxxxxx 2,273 W-China 8
Xxxxxx Xxxxx 2,273 W-China 9
Xxxx City Anesthesia Medical Group
Money Purchase and Profit
Sharing Pension Trust 2,273 W-China 10
Xxxxxxx X. Xxxxxx 2,273 W-China 11
Xxxxxxx X. Xxxxxxx, A Professional Corporation
Profit Sharing Plan 2,273 W-China 44
Xxxxxx X. Xxxxxx 2,273 W-China 14
Xxxx X. Xxxxxx 10,000 W-China 15
Xxxxxxx X. Xxxxxxxxx, A Professional Corporation
Profit Sharing Plan 2,273 W-China 16
Xxxxxx Xxxxxx 2,273 W-China 17
Xxxxxxx Xxxxxx 2,273 W-China 18
Einav Xxxxx Xxxxx 2,273 W-China 22
Xxxxxxx X. Xxxxxx 2,273 W-China 20
Xxxxxx X. Xxxxxxx 2,500 W-China 21
Xxxxxx Xxxxxx 2,273 W-China 23
Xxxx Xxxxxxxx 2,500 W-China 24
Xxx Xxxxxxx 4,545 W-China 25
Xxxxx Xxxxx 4,545 W-China 26
Xxxxxx Xxxx 9,090 W-China 46
Xxxxxx Xxxxxx 2,273 W-China 28
Xxxxx Xxxxxxxxxx 4,545 W-China 29
Xxxxxx Xxxxxxxx 2,273 W-China 30
Xxxxx Schwuartzman 2,273 W-China 31
Xxxxxx X. Xxxxx 4,545 W-China 32
Xxxxxx and Xxxxxxxxx Xxxxxxxx 2,273 W-China 43
Xxx Xxxxxx Starr 2,273 W-China 34
Xxxxxxx Xxxxx 2,273 W-China 35
Xxxxxxxx & Associates, Inc. 2,273 W-China 36
Schedule of Subscribers
Page 2
Number of Warrant
Name Warrants Number
Xxxxxxxx Family Partners 6,818 W-China 37
Swan Alley (Nominees) Limited 2,500 W-China 38
Xxxxxxx X. Xxxxxx 5,000 W-China 39
Xxxxx X. Zacky 10,000 W-China 40
Xxxxxxxx Xxxx 9,090 W-China 41
