WARRANT
Exhibit
7
WARRANT
NEITHER
THIS WARRANT NOR THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
OTHER APPLICABLE SECURITIES LAWS AND THIS WARRANT MAY NOT BE EXERCISED BY OR
ON
BEHALF OF ANY US PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. WITHOUT LIMITING THE FOREGOING, THE SECURITIES
REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED
FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL
IN A FORM REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT
REQUIRED THEREUNDER, AND OTHERWISE IN COMPLIANCE WITH ALL OTHER APPLICABLE
SECURITIES LAWS.
Warrant
To Purchase ADSs
Warrant
No.:NACME-2Number
of
ADSs: 3,000,000
Date
of
Issuance: May 2, 2007
Futuremedia
PLC, an English corporation (the “Company”),
hereby certifies that, for Ten United States Dollars ($10.00) and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, NATIONAL
AIR CARGO, MIDDLE EAST, FZE (“Investor”),
the registered holder hereof or its permitted assigns, is entitled, subject
to
the terms set forth below, to purchase from the Company upon surrender of this
Warrant, at any time or times after the Issuance Date, but not after
11:59 P.M. Eastern Time on the Expiration Date (as defined herein) Three
Million (3,000,000) fully paid and nonassessable ADSs(as defined herein) of
the
Company (the “Warrant
ADSs”)
at the
exercise price per share provided in Section 1(b) below or as subsequently
adjusted; provided, however, that in no event shall the holder be entitled
to
exercise this Warrant for a number of Warrant ADSs in excess of that number
of
Warrant ADSs which, upon giving effect to such exercise, would cause the
aggregate number of shares of ADSs beneficially owned by the holder and its
affiliates to exceed 4.99% of the outstanding shares of the ADSs following
such
exercise. For purposes of the foregoing proviso, the aggregate number of ADSs
beneficially owned by the holder and its affiliates shall include the number
of
ADSs issuable upon exercise of this Warrant with respect to which the
determination of such proviso is being made, but shall exclude ADSs which would
be issuable upon (i) exercise of the remaining, unexercised Warrants
beneficially owned by the holder and its affiliates and (ii) exercise or
conversion of the unexercised or unconverted portion of any other securities
of
the Company beneficially owned by the holder and its affiliates (including,
without limitation, any convertible notes or preferred stock) subject to a
limitation on conversion or exercise analogous to the limitation contained
herein. Except as set forth in the preceding sentence, for purposes of this
paragraph, beneficial ownership shall be calculated in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this
Warrant, in determining the number of outstanding ADSs a holder may rely on
the
number of outstanding ADSs as reflected in (1) the Company’s most recent Form
20-F or Form 6-K as the case may be, (2) a more recent public announcement
by
the Company or (3) any other notice by the Company or its transfer agent setting
forth the number of ADSs outstanding. Upon the written request of any holder,
the Company shall promptly, but in no event later than two Business Days
following the receipt of such notice, confirm in writing to any such holder
the
number of ADSs then outstanding. In any case, the number of outstanding ADSs
shall be determined after giving effect to the exercise of Warrants (as defined
below) by such holder and its affiliates since the date as of which such number
of outstanding ADSs was reported.
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For
the
avoidance of doubt, neither the Investor nor any other holder of this Warrant
shall be permitted to vote any ADSs received by way of conversion of this
Warrant at any such general meeting.
Section
1.
(a) This
Warrant is the ADSs purchase warrant (the “Warrant”)
issued
pursuant to the Securities Purchase Agreement dated the date hereof by and
between the Company and Investor.
(b) Definitions.
The
following words and terms as used in this Warrant shall have the following
meanings. All other defined terms used but not otherwise defined herein shall
have the meanings provided in the Securities Purchase Agreement.
(i) “Business
Day”
means
any day other than Saturday, Sunday or other day on which commercial banks
in
the City of New York or London, U.K. are authorized or required by law to remain
closed.
(ii) “Closing
Bid Price”
means
the closing bid price of ADSs as quoted on the Principal Market (as reported
by
Bloomberg Financial Markets (“Bloomberg”).
(iii) “Ordinary
Shares” means (i) the Company’s shares of Ordinary Shares (as evidenced by
American Depositary Shares, each representing 50 Ordinary Shares (each an “ADS”)
as evidenced by American Depositary Receipts by selling shareholders and
(ii) any capital stock into which such ADSs shall have been changed or any
capital stock resulting from a reclassification of such ADSs.
(iv) “Expiration
Date”
means
the date one (1) year from the Issuance Date of this Warrant or, if such date
falls on a Saturday, Sunday or other day on which banks are required or
authorized to be closed in the City of New York or the State of New York or
in
London, U.K. or on which trading does not take place on the Principal Exchange
or automated quotation system on which the ADSs are traded (a “Holiday”),
the
next date that is not a Holiday.
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(v) “Issuance
Date”
means
the date hereof.
(vi) “Options”
means
any rights, warrants or options to subscribe for or purchase ADSs or Convertible
Securities.
(vii) “Other
Securities”
means
(i) those options and warrants of the Company issued prior to, and
outstanding on, the Issuance Date of this Warrant, (ii) the ADSs issuable on
exercise of such options and warrants, provided such options and warrants are
not amended after the Issuance Date of this Warrant and (iii) the ADSs
issuable upon exercise of this Warrant.
(viii) “Person”
means
an individual, a limited liability company, a partnership, a joint venture,
a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
(ix) “Principal
Market”
means
the New York Stock Exchange, the American Stock Exchange, the Nasdaq National
Market, NASDAQ-CM, whichever is at the time the principal trading exchange
or
market for such security, or the over-the-counter market on the electronic
bulletin board for such security as reported by Bloomberg or, if no bid or
sale
information is reported for such security by Bloomberg, then the average of
the
bid prices of each of the market makers for such security as reported in the
“pink sheets” by the National Quotation Bureau, Inc.
(x) “Securities
Act”
means
the Securities Act of 1933, as amended.
(xi) “Securities
Purchase Agreement”
means
that certain Securities Purchase Agreement (or Subscription Agreement, as the
case may be) dated of even date herewith between the Company and
Investor.
(xii) “Warrant”
means
this Warrant and all Warrants issued in exchange, transfer or replacement
thereof.
(xiii) “Warrant
Exercise Price”
shall
mean the greater of (i) $1.12 or (ii) the result of 1 1/9 British xxxxx
multiplied by 50 multiplied by the prevailing Noon Buying Rate in New York
City
for cable transfers in pounds sterling as certified for customs purposes by
the
Federal Reserve Bank of New York exchange rate on the date of the relevant
Exercise Notice, as subsequently adjusted as provided in Section 8
hereof.
(xiii) “Warrant
ADSs”
means
the shares of ADSs issuable at any time upon exercise of this Warrant.
(c) Other
Definitional Provisions.
(i) Except
as
otherwise specified herein, all references herein (A) to the Company shall
be deemed to include the Company’s successors and (B) to any applicable law
defined or referred to herein shall be deemed references to such applicable
law
as the same may have been or may be amended or supplemented from time to time.
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(ii) When
used
in this Warrant, the words “herein”,
“hereof”,
and
“hereunder”
and
words of similar import, shall refer to this Warrant as a whole and not to
any
provision of this Warrant, and the words “Section”,
“Schedule”,
and
“Exhibit”
shall
refer to Sections of, and Schedules and Exhibits to, this Warrant unless
otherwise specified.
(iii) Whenever
the context so requires, the neuter gender includes the masculine or feminine,
and the singular number includes the plural, and vice versa.
Section
2. Exercise
of Warrant.
Subject
to the terms and conditions hereof (including without limitation Section 2(c)
and Section 2(d) below), this Warrant may be exercised by the holder hereof
then
registered on the books of the Company, pro rata as hereinafter provided, at
any
time on any Business Day on or after the opening of business on such Business
Day, commencing with the first day after the date hereof, and prior to
11:59 P.M. Eastern Time on the Expiration Date, by (i) delivery of a
written notice, in the form of the subscription notice attached as Exhibit
A
hereto
(the “Exercise
Notice”),
of
such holder’s election to exercise this Warrant, which notice shall specify the
number of Warrant ADSs to be purchased, (ii) payment to the Company of an
amount equal to the Warrant Exercise Price(s) applicable to the Warrant ADSs
being purchased, multiplied by the number of Warrant ADSs (at the
applicable Warrant Exercise Price) as to which this Warrant is being
exercised (plus any applicable issue or transfer taxes) (the “Aggregate
Exercise Price”)
in
cash or wire transfer of immediately available funds and (iii) the surrender
of
this Warrant (or an indemnification undertaking with respect to this Warrant
in
the case of its loss, theft or destruction) to a common carrier for overnight
delivery to the Company as soon as practicable following such date. In the
event
of any exercise of the rights represented by this Warrant in compliance with
this Section 2(a), the Company shall on the fifth (5th) Business Day
following the date of receipt of the Exercise Notice, the Aggregate Exercise
Price and this Warrant (or an indemnification undertaking with respect to this
Warrant in the case of its loss, theft or destruction) and the receipt of the
representations of the holder specified in Section 6 hereof, if requested by
the
Company (the “Exercise
Delivery Documents”),
and
if the ADSs are DTC eligible credit such aggregate number of shares of ADSs
to
which the holder shall be entitled to the holder’s or its designee’s balance
account with The Depository Trust Company; provided, however, if the holder
who
submitted the Exercise Notice requested physical delivery of any or all of
the
Warrant ADSs, or, if the ADSs are not DTC eligible then the Company shall,
on or
before the fifth (5th)
Business Day following receipt of the Exercise Delivery Documents, issue and
surrender to a common carrier for prompt delivery to the address specified
in
the Exercise Notice, a certificate, registered in the name of the holder, for
the number of ADSs to which the holder shall be entitled pursuant to such
request. Upon delivery of the Exercise Notice and Aggregate Exercise Price
referred to in clause (ii) above the holder of this Warrant shall be deemed
for all corporate purposes to have become the holder of record of the Warrant
ADSs with respect to which this Warrant has been exercised. In the case of
a
dispute as to the determination of the Warrant Exercise Price, the Closing
Bid
Price or the arithmetic calculation of the Warrant ADSs, the Company shall
promptly issue to the holder the number of Warrant ADSs that is not disputed
and
shall submit the disputed determinations or arithmetic calculations to the
holder via facsimile within two Business Days of receipt of the holder’s
Exercise Notice. If the holder and the Company are unable to agree upon the
determination of the Warrant Exercise Price or arithmetic calculation of the
Warrant ADSs within one (1) Business Day of such disputed determination or
arithmetic calculation being submitted to the holder, then the Company shall
immediately submit via facsimile (i) the disputed determination of the Warrant
Exercise Price or the Closing Bid Price to an independent, reputable investment
banking firm or (ii) the disputed arithmetic calculation of the Warrant ADSs
to
its independent, outside accountant. The Company shall cause the investment
banking firm or the accountant, as the case may be, to perform the
determinations or calculations and notify the Company and the holder of the
results no later than two Business Days from the time it receives the disputed
determinations or calculations. Such investment banking firm’s or accountant’s
determination or calculation, as the case may be, shall be deemed conclusive
absent manifest error.
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(a) Unless
the rights represented by this Warrant shall have expired or shall have been
fully exercised, the Company shall, as soon as practicable and in no event
later
than five (5) Business Days after any exercise and at its own expense, issue
a
new Warrant identical in all respects to this Warrant exercised except it shall
represent rights to purchase the number of Warrant ADSs purchasable immediately
prior to such exercise under this Warrant exercised, less the number of Warrant
ADSs with respect to which such Warrant is exercised.
(b) No
fractional Warrant ADSs are to be issued upon any pro rata exercise of this
Warrant, but rather the number of Warrant ADSs issued upon such exercise of
this
Warrant shall be rounded up or down to the nearest whole number.
(c) Notwithstanding
any other provision of this Warrant, to insure compliance with the applicable
provisions of Regulation S (“Regulation S”) under the United States Securities
Act of 1933, as amended (the “Securities Act”), the holder of this Warrant
agrees and acknowledges as follows:
(i) If
and to
the extent that this Warrant is exercised prior to the 41st
day
following the Issuance Date (the “Restricted Period”), the holder of this
Warrant agrees that the certificates or ADRs evidencing any Warrant ADSs will
be
held in escrow by the Company for the balance of the Restricted Period (or
that
the Company may otherwise delay issuance thereof for such period of time).
The
holder agrees not to sell, grant options over, transfer, charge, pledge,
hypothecate or otherwise dispose of the Warrant ADSs during the Restricted
Period. The undersigned further agrees not to engage in any hedging transactions
or short sales with respect to the Warrant ADSs during the Restricted Period;
and
(ii) The
holder of this Warrant upon exercise of all or a portion hereof shall be
required to delivery to the Company (A) written certification that it is not
a
US person (as defined in Regulation S) and this Warrant is not being exercised
on behalf of a US person or (B) a written opinion of counsel to the effect
that
this Warrant and the Warrant ADSs have been registered under the Securities
Act
or are exempt from registration thereunder; and
(iii) This
Warrant may not be exercised within the United States and no Warrant ADSs may
be
delivered within the United States upon exercise of this Warrant other than
in
offerings deemed to meet the definition of an “offshore transaction” within the
meaning of Regulation S or unless registered under the Securities Act or an
exemption from such registration is available, and the holder of this Warrant
agrees to provide such written confirmations as the Company may reasonably
request in connection with any exercise of this Warrant to insure compliance
with this sub-section (iii).
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(d) Notwithstanding
any other provision of this Warrant, this Warrant may not be exercised until
the
Company has received a commitment from a third party to provide to the Company
an additional financing facility of not less than $4,500,000 (the “Additional
Commitment”). Company shall notify the holder of this Warrant within three
business days of closing definitive documentation for the Additional
Commitment.
Section
3. Covenants
as to ADSs.
The
Company hereby covenants and agrees as follows:
(a) This
Warrant is, and any Warrants issued in substitution for or replacement of this
Warrant will upon issuance be, duly authorized and validly issued.
(b) All
Warrant ADSs which may be issued upon the exercise of the rights represented
by
this Warrant will, upon issuance, be validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to the
issue thereof.
(c) During
the period within which the rights represented by this Warrant may be exercised,
the Company will at all times have authorized and reserved at least one hundred
percent (100%) of the number of shares of ADSs needed to provide for the
exercise of the rights then represented by this Warrant and the par value of
said shares will at all times be less than or equal to the applicable Warrant
Exercise Price. If at any time the Company does not have a sufficient number
of
shares of ADSs authorized and available, then the Company shall call a special
meeting of its stockholders within sixty (60) days of that time for the
sole purpose of increasing the number of authorized shares of ADSs.
(d) The
Company shall list on each national securities exchange or automated quotation
system, as the case may be, and shall maintain such listing of, any shares
of
capital stock of the Company issuable upon the exercise of this Warrant if
and
so long as any shares of the same class shall be listed on such national
securities exchange or automated quotation system.
(e) The
Company will not, by amendment of its Articles of Association 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 to be observed or performed by
it
hereunder, but will at all times in good faith assist in the carrying out of
all
the provisions of this Warrant and in the taking of all such action as may
reasonably be requested by the holder of this Warrant in order to protect the
exercise privilege of the holder of this Warrant against dilution or other
impairment, consistent with the tenor and purpose of this Warrant. The Company
will not increase the par value of any ADSs receivable upon the exercise of
this
Warrant above the Warrant Exercise Price then in effect, and will take all
such actions as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable ADSs upon the exercise
of
this Warrant.
(f) This
Warrant will be binding upon any entity succeeding to the Company by merger,
consolidation or acquisition of all or substantially all of the Company’s
assets.
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Section
4. Taxes.
The
Company shall pay any and all taxes, except any applicable withholding, which
may be payable with respect to the issuance and delivery of Warrant ADSs upon
exercise of this Warrant.
Section
5. Warrant
Holder Not Deemed a Stockholder.
Except
as otherwise specifically provided herein, no holder, as such, of this Warrant
shall be entitled to vote or receive dividends or be deemed the holder of shares
of capital stock of the Company for any purpose, nor shall anything contained
in
this Warrant be construed to confer upon the holder hereof, as such, any of
the
rights of a stockholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue of stock,
reclassification of stock, consolidation, merger, conveyance or otherwise),
receive notice of meetings, receive dividends or subscription rights, or
otherwise, prior to the issuance to the holder of this Warrant of the Warrant
ADSs which he or she is then entitled to receive upon the due exercise of this
Warrant. In addition, nothing contained in this Warrant shall be construed
as
imposing any liabilities on such holder to purchase any securities (upon
exercise of this Warrant or otherwise) or as a stockholder of the Company,
whether such liabilities are asserted by the Company or by creditors of the
Company. Notwithstanding this Section 5, the Company will provide the holder
of
this Warrant with copies of the same notices and other information given to
the
stockholders of the Company generally, contemporaneously with the giving thereof
to the stockholders.
Section
6. Representations
of Holder.
The
holder of this Warrant, by the acceptance hereof, represents that it is
acquiring this Warrant and the Warrant ADSs for its own account for investment
only and not with a view towards, or for resale in connection with, the public
sale or distribution of this Warrant or the Warrant ADSs, except pursuant to
sales registered or exempted under the Securities Act; provided, however, that
by making the representations herein, the holder does not agree to hold this
Warrant or any of the Warrant ADSs for any minimum or other specific term and
reserves the right to dispose of this Warrant and the Warrant ADSs at any time
in accordance with or pursuant to a registration statement or an exemption
under
the Securities Act. The holder of this Warrant further represents, by acceptance
hereof, that, as of this date, such holder is an “accredited investor” as such
term is defined in Rule 501(a)(1) of Regulation D promulgated by the
Securities and Exchange Commission under the Securities Act (an “Accredited
Investor”).
Upon
exercise of this Warrant the holder shall, if requested by the Company, confirm
in writing, in a form satisfactory to the Company, that the Warrant ADSs so
purchased are being acquired solely for the holder’s own account and not as a
nominee for any other party, for investment, and not with a view toward
distribution or resale and that such holder is an Accredited Investor. If such
holder cannot make such representations because they would be factually
incorrect, it shall be a condition to such holder’s exercise of this Warrant
that the Company receive such other representations as the Company considers
reasonably necessary to assure the Company that the issuance of its securities
upon exercise of this Warrant shall not violate any United States or state
securities laws.
Section
7. Ownership
and Transfer.
(a) The
Company shall maintain at its principal executive offices (or such other office
or agency of the Company as it may designate by notice to the holder hereof),
a
register for this Warrant, in which the Company shall record the name and
address of the person in whose name this Warrant has been issued, as well as
the
name and address of each transferee. The Company may treat the person in whose
name any Warrant is registered on the register as the owner and holder thereof
for all purposes, notwithstanding any notice to the contrary, but in all events
recognizing any transfers made in accordance with the terms of this
Warrant.
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Section
8. Adjustment
of Warrant Exercise Price and Number of Shares.
The
Warrant Exercise Price and the number of shares of ADSs issuable upon exercise
of this Warrant shall be adjusted from time to time as follows:
(a) Reserved.
(b) Reserved.
(c) Reserved.
(d) Adjustment
of Warrant Exercise Price upon Subdivision or Combination of
ADSs.
If the
Company at any time after the date of issuance of this Warrant subdivides (by
any stock split, stock dividend, recapitalization or otherwise) one or more
classes of its outstanding shares of ADSs into a greater number of shares,
any
Warrant Exercise Price in effect immediately prior to such subdivision will
be
proportionately reduced and the number of shares of ADSs obtainable upon
exercise of this Warrant will be proportionately increased. If the Company
at
any time after the date of issuance of this Warrant combines (by combination,
reverse stock split or otherwise) one or more classes of its outstanding shares
of ADSs into a smaller number of shares, any Warrant Exercise Price in effect
immediately prior to such combination will be proportionately increased and
the
number of Warrant ADSs issuable upon exercise of this Warrant will be
proportionately decreased. Any adjustment under this Section 8(d) shall
become effective at the close of business on the date the subdivision or
combination becomes effective.
(e) Distribution
of Assets.
If the
Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of ADSs, by way of return of
capital or otherwise (including, without limitation, any distribution of cash,
stock or other securities, property or options by way of a dividend, spin off,
reclassification, corporate rearrangement or other similar transaction) (a
“Distribution”),
at
any time after the issuance of this Warrant, then, in each such
case:
(i) any
Warrant Exercise Price in effect immediately prior to the close of business
on
the record date fixed for the determination of holders of ADSs
entitled to
receive the Distribution shall be reduced, effective as of the close of business
on such record date, to a price determined by multiplying such Warrant Exercise
Price by a fraction of which (A) the numerator shall be the Closing Bid Price
of
the ADSs on the trading day immediately preceding such record date minus the
value of the Distribution (as determined in good faith by the Company’s Board of
Directors) applicable to one Ordinary Share, and (B) the denominator shall
be
the Closing Bid Price of the ADSs on the trading day immediately preceding
such
record date; and
(ii) either
(A) the number of Warrant ADSs obtainable upon exercise of this Warrant shall
be
increased to a number of shares equal to the number of ADSs obtainable
immediately prior to the close of business on the record date fixed for the
determination of holders of ADSs entitled to receive the Distribution multiplied
by the reciprocal of the fraction set forth in the immediately preceding clause
(i), or (B) in the event that the Distribution is of ADSs of a company whose
ADSs are traded on a national securities exchange or a national automated
quotation system, then the holder of this Warrant shall receive an additional
warrant to purchase ADSs, the terms of which shall be identical to those of
this
Warrant, except that such warrant shall be exercisable into the amount of the
assets that would have been payable to the holder of this Warrant pursuant
to
the Distribution had the holder exercised this Warrant immediately prior to
such
record date and with an exercise price equal to the amount by which the exercise
price of this Warrant was decreased with respect to the Distribution pursuant
to
the terms of the immediately preceding clause (i).
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(f) Certain
Events.
If any
event occurs of the type contemplated by the provisions of this Section 8
but not expressly provided for by such provisions, then the Company’s Board of
Directors will make an appropriate adjustment in the Warrant Exercise Price
and
the number of shares of ADSs obtainable upon exercise of this Warrant so as
to
protect the rights of the holders of the Warrants; provided, except as set
forth
in section 8(d),that no such adjustment pursuant to this Section 8(f) will
increase the Warrant Exercise Price or decrease the number of shares of ADSs
obtainable as otherwise determined pursuant to this Section 8.
(g) Notices.
(i) Immediately
upon any adjustment of the Warrant Exercise Price, the Company will give written
notice thereof to the holder of this Warrant, setting forth in reasonable
detail, and certifying, the calculation of such adjustment.
(ii) The
Company will give written notice to the holder of this Warrant at least ten
(10)
days prior to the date on which the Company closes its books or takes a record
(A) with respect to any dividend or distribution upon the ADSs,
(B) with respect to any pro rata subscription offer to holders of ADSs or
(C) for determining rights to vote with respect to any Organic Change (as
defined below), dissolution or liquidation, provided that such information
shall
be made known to the public prior to or in conjunction with such notice being
provided to such holder.
(iii) The
Company will also give written notice to the holder of this Warrant at least
ten
(10) days prior to the date on which any Organic Change, dissolution or
liquidation will take place.
Section
9. Purchase
Rights; Reorganization, Reclassification, Consolidation, Merger or
Sale.
(a) In
addition to any adjustments pursuant to Section 8 above, if at any time the
Company grants, issues or sells any Options, Convertible Securities or rights
to
purchase stock, warrants, securities or other property pro rata to the record
holders of any class of ADSs (the “Purchase
Rights”),
then
the holder of this Warrant will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which such
holder could have acquired if such holder had held the number of shares of
ADSs
acquirable upon complete exercise of this Warrant immediately before the date
on
which a record is taken for the grant, issuance or sale of such Purchase Rights,
or, if no such record is taken, the date as of which the record holders of
ADSs
are to be determined for the grant, issue or sale of such Purchase
Rights.
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(b) Any
recapitalization, reorganization, reclassification, consolidation, merger,
sale
of all or substantially all of the Company’s assets to another Person or other
transaction in each case which is effected in such a way that holders of ADSs
are entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for ADSs are referred to
herein as an “Organic
Change.”
Prior
to the consummation of any (i) sale of all or substantially all of the Company’s
assets to an acquiring Person or (ii) other Organic Change following which
the
Company is not a surviving entity, the Company will secure from the Person
purchasing such assets or the successor resulting from such Organic Change
(in
each case, the “Acquiring
Entity”)
a
written agreement to deliver to each holder of Warrants in exchange for such
Warrants, a security of the Acquiring Entity evidenced by a written instrument
substantially similar in form and substance to this Warrant and satisfactory
to
the holders of the Warrants (including an adjusted warrant exercise price equal
to the value for the ADSs reflected by the terms of such consolidation, merger
or sale, and exercisable for a corresponding number of shares of ADSs acquirable
and receivable upon exercise of the Warrants without regard to any limitations
on exercise, if the value so reflected is less than any Warrant Exercise Price
immediately prior to such consolidation, merger or sale). Prior to the
consummation of any other Organic Change, the Company shall make appropriate
provision to insure that each of the holders of the Warrants will thereafter
have the right to acquire and receive in lieu of or in addition to (as the
case
may be) the Warrant ADSs immediately theretofore issuable and receivable upon
the exercise of such holder’s Warrants (without regard to any limitations
on exercise), such shares of stock, securities or assets that would have been
issued or payable in such Organic Change with respect to or in exchange for
the
number of Warrant ADSs which would have been issuable and receivable upon the
exercise of such holder’s Warrant as of the date of such Organic Change (without
taking into account any limitations or restrictions on the exercisability of
this Warrant).
Section
10. Lost,
Stolen, Mutilated or Destroyed Warrant.
If this
Warrant is lost, stolen, mutilated or destroyed, the Company shall promptly,
on
receipt of an indemnification undertaking (or, in the case of a mutilated
Warrant, the Warrant), issue a new Warrant of like denomination and tenor as
this Warrant so lost, stolen, mutilated or destroyed.
Section
11. Notice.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Warrant must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of receipt
is received by the sending party transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) two Business
Days after deposit with an internationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same.
The
addresses and facsimile numbers for such communications shall be:
A-10
|
If
to Investor:
|
National
Air Cargo, Middle East, FZE
P.O.
Box 54429, W101, West Wing Dubai
Airport
Free Zone
Dubai
U.A.E.
|
|
|
Attention:
Xxxxx
Xxxxxxx, Country Director
|
||
|
Telephone: 000-0-0000000
|
||
|
Facsimile: 000-0-0000000
|
||
|
With
Copy to:
|
Xxxxxxxxx,
Xxxxxx & Xxxxxx
|
|
|
000
Xxxxxxx Xxxxxxxxx, 0xx
Floor
|
||
|
Princeton,
New Jersey 08540
|
||
|
USA
|
||
|
Attention:
Xxxxxx
X. Xxxxxxxxx, Esq.
|
||
|
Telephone: 000-000-0000
|
||
|
Facsimile: 000-000-0000
|
||
|
If
to the Company, to:
|
||
|
Nile
House, Nile Street
|
||
|
Brighton,
East Sussex BN1 1HW, United Kingdom
|
||
|
Attention: Xxxxxxx
X. Xxxxxx, CEO and Xxxxxx Xxxxx, General Counsel
|
||
|
Telephone: x00
0000 000000
|
||
|
Facsimile: +
44 1273 829702
|
If
to a
holder of this Warrant, to it at the address and facsimile number set forth
on
Exhibit C
hereto,
with copies to such holder’s representatives as set forth on Exhibit C,
or at
such other address and facsimile as shall be delivered to the Company upon
the
issuance or transfer of this Warrant. Each party shall provide five days’ prior
written notice to the other party of any change in address or facsimile number.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, facsimile, waiver or other communication, (or (B) provided by an
internationally recognized overnight delivery service shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from a nationally
recognized overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.
Section
12. Date.
The
date of this Warrant is set forth on page 1 hereof. This Warrant, in all
events, shall be wholly void and of no effect after the close of business on
the
Expiration Date.
A-11
Section
13. Amendment
and Waiver.
Except
as otherwise provided herein, the provisions of the Warrants may be amended
and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company has obtained the
written consent of the holders of Warrants representing at least two-thirds
of
the Warrant ADSs issuable upon exercise of the Warrants then outstanding;
provided that, except for Section 8(d), no such action may increase the Warrant
Exercise Price or decrease the number of shares or class of stock obtainable
upon exercise of any Warrant without the written consent of the holder of such
Warrant.
Section
14. Descriptive
Headings; Governing Law.
The
descriptive headings of the several sections and paragraphs of this Warrant
are
inserted for convenience only and do not constitute a part of this Warrant.
This
Warrant shall be governed by the laws of England and Wales. Each party hereby
irrevocably submits to the exclusive jurisdiction of the English courts for
the
adjudication of any dispute hereunder or in connection herewith or therewith,
or
with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
to
such party at the address for such notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way
any
right to serve process in any manner permitted by law.
Section
15. Waiver
of Jury Trial.
AS
A MATERIAL INDUCEMENT FOR EACH PARTY HERETO TO ENTER INTO THIS WARRANT, THE
PARTIES HERETO HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
RELATED IN ANY WAY TO THIS WARRANT AND/OR ANY AND ALL OF THE OTHER DOCUMENTS
ASSOCIATED WITH THIS TRANSACTION.
Section
16. Neither
Investor nor any of its affiliates have (directly or indirectly) an open short
position in the ADSs of the Company on the date hereof, and Investor agrees
that
it shall not, and that it will cause its affiliates not to, directly or
indirectly, engage in any short sales of or hedging transactions with respect
to
any securities of the Company as long as this Warrant shall remain
outstanding.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
A-12
IN
WITNESS WHEREOF,
the
Company has caused this Warrant to be signed as of the date first set forth
above.
| |
|
|
| By: | /s/ Michiel Steel | |
|
Name: Michiel
Steel
|
||
|
Title: Director
|
||
A-13
EXHIBIT
A TO WARRANT
EXERCISE
NOTICE
TO
BE EXECUTED
BY
THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
The
undersigned holder hereby exercises the right to purchase ______________ of
the
ADSs (“Warrant
ADSs”)
of
Futuremedia PLC, a corporation organized and existing under the laws of England
and Wales (the “Company”),
evidenced by the attached Warrant (the “Warrant”).
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Warrant.
1. Form
of Warrant Exercise Price.
The
Holder intends that payment of the Warrant Exercise Price shall be made on
a
Cash Basis with respect to ______________ Warrant ADSs.
2. Payment
of Warrant Exercise Price.
The
holder shall pay the sum of $______________ to the Company in accordance with
the terms of the Warrant.
3. Delivery
of Warrant ADSs.
The
Company shall deliver to the holder _________
Warrant
ADSs in accordance with the terms of the Warrant.
Date:
_______________ __, ______
Name
of
Registered Holder
|
By:
|
_______________________________
|
| Name: |
_______________________________
|
| Title: |
_______________________________
|
A-14
EXHIBIT
B TO WARRANT
FORM
OF WARRANT POWER
FOR
VALUE RECEIVED,
the
undersigned does hereby assign and transfer to ________________, Federal
Identification No. __________, a warrant to purchase ____________ shares of
the capital stock of Futuremedia PLC, a corporation organized and existing
under
the laws of England and Wales, represented by warrant certificate
no. _____, standing in the name of the undersigned on the books of said
corporation. The undersigned does hereby irrevocably constitute and appoint
______________, attorney to transfer the warrants of said corporation, with
full
power of substitution in the premises.
|
Dated:
___________________________
|
___________________________ |
|
By:
_____________________________
|
|
|
Name:
___________________________
|
|
|
Title:
____________________________
|
B-1
