1
EXHIBIT 10.31
Execution Copy
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES
OR BLUE SKY LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD,
ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER SAID ACT AND UNDER APPLICABLE STATE SECURITIES OR BLUE SKY LAWS OR
EXEMPTIONS FROM SUCH REGISTRATION. THIS WARRANT MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT UPON THE CONDITIONS SPECIFIED IN
THIS WARRANT, AND NO SALE, ASSIGNMENT, TRANSFER, OR OTHER DISPOSITION OF THIS
WARRANT SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL HAVE
BEEN COMPLIED WITH.
STOCK PURCHASE WARRANT
ISSUED TO
DECLARATION OF TRUST FOR DEFINED BENEFIT PLAN
OF ZENECA HOLDINGS, INC.
2
TABLE OF CONTENTS
Page
----
1. Manner of Exercise; Issuance of Certificates; Payment for Shares........ 1
2. Period of Exercise...................................................... 3
(a) Call Option of the Company......................................... 3
(b) Repurchase Obligation of the Company............................... 4
3. Certain Agreements of the Company....................................... 4
(a) Shares to be Fully Paid............................................ 4
(b) Reservation of Shares.............................................. 4
(c) Listing of Shares.................................................. 4
(d) Certain Actions Prohibited......................................... 5
4. Antidilution Provisions................................................. 5
(a) Issuance of Capital Stock.......................................... 5
(b) Treatment of Options and Convertible Securities; Computation
of Consideration................................................... 5
(c) Subdivisions and Combinations...................................... 9
(d) Extraordinary Dividends and Distributions.......................... 9
(e) Computation of Market Price........................................10
(f) Record Date Adjustments............................................10
(g) Minimum Adjustment of Exercise Price...............................11
(h) Reorganization, Reclassification, Consolidation, Merger, or Sale...11
(i) No Fractional Shares...............................................12
(j) Other Notices......................................................12
5. No Rights or Liabilities as a Shareholder...............................13
6. Transfer, Exchange, and Replacement of Warrant..........................13
(a) Warrant Not Transferable...........................................13
(b) Replacement of Warrant.............................................13
(c) Register...........................................................13
(d) Exercise or Transfer Without Registration..........................14
(e) Expenses of Transfer...............................................14
7. Notices.................................................................14
8. GOVERNING LAW...........................................................14
9. Miscellaneous...........................................................15
(a) Amendments.........................................................15
(b) Descriptive Headings...............................................15
(c) Successors and Assigns.............................................15
3
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES
OR BLUE SKY LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD,
ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER SAID ACT AND UNDER APPLICABLE STATE SECURITIES OR BLUE SKY LAWS OR
EXEMPTIONS FROM SUCH REGISTRATION. THIS WARRANT MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT UPON THE CONDITIONS SPECIFIED IN
THIS WARRANT, AND NO SALE, ASSIGNMENT, TRANSFER, OR OTHER DISPOSITION OF THIS
WARRANT SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL HAVE
BEEN COMPLIED WITH.
No. ZE-01 Right to Purchase 150,000 Shares
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Declaration of Trust for
Defined Benefit Plan of Zeneca Holdings, Inc. (the "Original Holder"), or
registered successors or assigns, is entitled to purchase from Source Media,
Inc., a Delaware corporation (the "Company"), at any time or from time to time
during the period specified in Paragraph 2 hereof, 150,000 fully paid and
nonassessable shares of the Company's Common Stock, par value $.001 per share
(the "Common Stock"), at an exercise price per share of $6.00 (the "Exercise
Price"). The term "Warrant Shares", as used herein, refers to the shares of
Common Stock purchasable hereunder. The Warrant Shares and the Exercise Price
are subject to adjustment as provided in Paragraph 4 hereof.
This Warrant is subject to the following terms, provisions, and
conditions:
1. Manner of Exercise; Issuance of Certificates; Payment for Shares.
Subject to the provisions hereof, this Warrant may be exercised by the holder
hereof, in whole or in part (but not as to a fractional Warrant Share), by the
surrender of this Warrant, together with a completed Exercise Agreement in the
form attached hereto, to the Company during normal business hours on any
business day at the Company's principal office at 0000 Xxxxxx Xxxx Xxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000 (or such other office or agency of the Company as it
may designate by notice to the holder hereof), and upon payment to the Company
of the Exercise Price for the Warrant Shares specified in said Exercise
Agreement. The Warrant Shares so purchased shall be deemed to be issued to the
holder hereof or its designee as the record owner of such shares as of the
close of business on the date on which this Warrant shall have been
surrendered, the completed Exercise Agreement delivered, and payment made for
such shares as aforesaid. Certificates for the Warrant Shares so purchased,
representing the aggregate number of shares
4
specified in said Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding seven business days, after this Warrant
shall have been so exercised. The certificates so delivered shall be in such
denominations as may be requested by the holder hereof and shall be registered
in the name of said holder. If this Warrant shall have been exercised only in
part, then, unless this Warrant has expired, the Company shall, at its expense,
at the time of delivery of said certificates, deliver to said holder a new
Warrant representing the number of shares with respect to which this Warrant
shall not then have been exercised. The Company shall pay all taxes and other
expenses and charges payable in connection with the preparation, execution, and
delivery of stock certificates (and any new Warrants) pursuant to this
Paragraph 1 except that, in case such stock certificates shall be registered in
a name or names other than the holder of this Warrant, funds sufficient to pay
all stock transfer taxes which shall be payable in connection with the
execution and delivery of such stock certificates shall be paid by the holder
hereof to the Company at the time of the delivery of such stock certificates by
the Company as mentioned above.
Payment of the Exercise Price may be made by either of the following
methods:
(i) Cash Exercise. By payment to the Company of the Exercise
Price in cash or by certified or official bank check, for each share
being purchased;
(ii) Surrender of Notes. By surrender to the Company for
cancellation of any Note or Notes (as such terms are defined in that
certain Amended and Restated Note Agreement, dated as of March 31, 1997
(the "Amended and Restated Note Agreement"), among the Company, IT
Network, Inc., the Original Holder and the other Purchasers named
therein), or any portion of a Note, for which credit shall be given
toward the Exercise Price on a dollar-for-dollar basis with reference
to the principal amount and accrued but unpaid interest cancelled;
(iii) Net Issue Exercise. By an election to receive shares the
aggregate fair market value of which as of the date of exercise is
equal to the fair market value of this Warrant (or the portion thereof
being exercised) on such date, in which event the Company, upon receipt
of notice of such election, shall issue to the holder hereof a number
of shares of Common Stock equal to (A) the number of shares of Common
Stock acquirable upon exercise of all or any portion of this Warrant
being exercised, as at such date, multiplied by (B) the balance
remaining after deducting (x) the Exercise Price, as in effect on such
date, from (y) the market price of one share of Common Stock as at such
date (determined as provided in Paragraph 4(e) hereof) and dividing
the result by (C) such market price; provided, however, that payment of
the Exercise Price pursuant to this method may be made only to the
extent that the aggregate outstanding principal amount of the Notes
held by the holder of this Warrant on the date of such election has
been paid in full; or
-2-
5
(iv) Combined Payment Method. By satisfaction of the Exercise
Price for such shares acquired in combination of the methods described
in clauses (i), (ii) or (iii).
2. Period of Exercise. Subject to the provisions of Paragraphs
2(a) and (b) below, this Warrant is exercisable at any time after the date
hereof, and before 5:00 p.m., Dallas time, on March 31, 2004.
(a) Call Option of the Company.
(i) Subject to the satisfaction in full of the
conditions set forth in subparagraph (ii) below, at any time
after the second anniversary of the date hereof, the Company
may, by written notice to the holder of this Warrant (the "Call
Notice"), elect to purchase this Warrant (or any new Warrant
then held by such holder representing the number of shares with
respect to which this Warrant shall not have been exercised), in
whole, on the Effective Date of Call (as defined below), at a
cash price for this Warrant equal to the product of (x) $.01
multiplied by (y) the number of shares with respect to which
this Warrant shall not have been exercised on such date. As used
in this Paragraph 2(a), the term "Effective Date of Call" shall
mean the later of (x) 60 days from the date of the Call Notice
or (y) 60 days from the date a registration statement covering
the Warrant Shares shall have become effective, which
registration statement was filed by the Company upon the receipt
of requests made (including a request made by the holder of this
Warrant) prior to the Effective Date of Call and pursuant to the
Amended and Restated Registration Rights Agreement dated as of
the date hereof, among the Company, the Original Holder and the
other persons named therein.
(ii) The Company's right to exercise the purchase
option referred to in subparagraph (i) above is conditional upon
the last reported sales price of the Common Stock (determined as
provided in Paragraph 4(e) hereof) having been equal to at least
200% of the Exercise Price then in effect for 30 of the 40
consecutive Trading Days (as defined below) immediately prior to
the date of the Call Notice.
(iii) If the conditions referred to above have been
satisfied in full (including, without limitation, the giving of
a Call Notice), the holder shall present this Warrant to the
Company at its office referred to in Paragraph 1 hereof on the
Effective Date of Call, and upon surrender thereof shall be
entitled to receive the cash price to which such holder is
entitled, by wire transfer of immediately available funds to an
account designated by the holder hereof or by delivery to such
holder of a certified or official bank check in New York
Clearing House Funds payable to the order of such
-3-
6
holder. Notwithstanding anything to the contrary implied in this
Paragraph 2(a), until the Effective Date of Call the holder of
this Warrant shall continue to be entitled to exercise any and
all of the rights granted to it herein.
(b) Repurchase Obligation of the Company. If at any time there
occurs a Change of Control (as defined in the Amended and Restated Note
Agreement), then the Company shall give to the holder of this Warrant
notice of such Change of Control within 5 days of its occurrence. Not
later than 60 days (the "Put Election Period") after such notice by the
Company, the holder of this Warrant (or any new Warrant then held by
such holder representing the number of shares with respect to which this
Warrant shall not have been exercised) may, be written notice to the
Company, elect to sell to the Company, and the Company shall purchase
from such holder, this Warrant, in whole, at an aggregate cash price
(the "Put Price") equal to the greater of (x) the Net Warrant Market
Price (as defined below) and (y) $360,000. The holder shall present this
Warrant to the Company at its office referred to in Paragraph 1 hereof
on or before the 30th day following the expiration of the Put Election
Period, and upon surrender thereof shall be entitled to receive the cash
price to which such holder is entitled, by wire transfer of immediately
available funds to an account designated by the holder hereof or by
delivery to such holder of a certified or official bank check in New
York Clearing House Funds payable to the order of such holder. As used
in this Paragraph 2(b), the term "Net Warrant Market Price" shall mean
an amount equal to the product of (x) the number of shares with respect
to which this Warrant shall not have been exercised, multiplied by (y)
the difference between the market price per Warrant Share (determined as
provided in Paragraph 4(e) hereof) on the date of the Put Notice and the
Exercise Price then in effect.
3. Certain Agreements of the Company. The Company hereby covenants
and agrees as follows:
(a) Shares to be Fully Paid. All Warrants Shares will, upon
issuance, be validly issued, fully paid, and nonassessable.
(b) Reservation of Shares. During the period within which this
Warrant may be exercised, the Company will at all times have authorized,
and reserved for the purpose of issue exercise of this Warrant, a
sufficient number of shares of Common Stock to provide for the exercise
of this Warrant.
(c) Listing of Shares. If the issuance of any Warrant Shares
required to be reserved for purposes of exercise of this Warrant
requires listing on any national securities exchange before such shares
may be issued upon exercise of this Warrant, the Company will, at its
expense, use its best efforts to cause such
- 4 -
7
shares to be listed on the relevant national securities exchange at
such time, so that such shares may be issued in accordance with the
terms hereof.
(d) Certain Actions Prohibited. The Company will not, by
amendment of its charter or 99
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.
4. Antidilution Provisions. The Exercise Price shall be subject to
adjustment from time to time as provided in this Paragraph 4. Upon each
adjustment of the Exercise Price, the holder of this Warrant shall thereafter
be entitled to purchase, at the Exercise Price resulting from such adjustment,
the largest number of Warrant Shares obtained by multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of Warrant Shares
purchasable hereunder immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment. For
purposes of this Paragraph 4, the term "Capital Stock", as used herein,
includes the Common Stock and any additional class of stock of the Company
having no preference as to dividends or distributions on liquidation which may
be authorized in the future by an amendment to the Company's charter, provided
that the shares purchasable pursuant to this Warrant shall include only shares
of Common Stock, or shares resulting from any subdivision or combination of the
Common Stock, or in the case of any reorganization, reclassification,
consolidation, merger, or sale of the character referred to in Paragraph 4(i)
hereof, the stock or other securities or property provided for in said
Paragraph.
(a) Issuance of Capital Stock. If and whenever the Company
shall issue or sell any shares of Capital Stock without consideration
or for a consideration per share less than the Exercise Price in effect
immediately prior to the time of such issue or sale, then, forthwith
upon such issue or sale, the Exercise Price shall be reduced to a
price (calculated to the nearest cent) determined by dividing (x) an
amount equal to the aggregate consideration received by the Company
upon such issue or sale, by (y) the total number of shares of Capital
Stock so issued or sold.
(b) Treatment of Options and Convertible Securities;
Computation of Consideration. For the purposes of Paragraph 4(a)
hereof the following provisions shall also be applicable:
(i) If at any time the Company shall grant any rights to
subscribe for or purchase, or any options for the purchase of,
Capital Stock or
- 5 -
8
securities convertible into or exchangeable for Capital Stock
(such rights and options being herein called "Options" and such
convertible or exchangeable securities being herein called
"Convertible Securities"), whether or not such Options or the
rights to convert or exchange any such Convertible Securities
are immediately exercisable, and the price per share for which
Capital Stock is issuable upon the exercise of such Options or
upon the conversion or exchange of such Convertible Securities
shall be less than the Exercise Price in effect immediately
prior to the time of the granting of such Options, then the
total maximum number of shares of Capital Stock issuable upon
the exercise of such Options or upon the conversion or exchange
of the total maximum amount of such Convertible Securities
issuable upon the exercise of such Options shall (as of the date
of granting of such Options) be deemed to be outstanding and to
have been issued and sold for such price per share. For purposes
of this paragraph 4(b)(i) the price per share for which such
Capital Stock is issuable shall be determined by dividing (x)
the total amount, if any, received or receivable by the Company
as consideration for the granting of such Options, plus the
minimum aggregate amount of additional consideration payable to
the Company upon the exercise of such Options, plus, in the case
of any such Options which relate to Convertible Securities, the
minimum aggregate amount of additional consideration, if any,
other than such Convertible Securities, payable to the Company
upon the conversion or exchange of such Convertible Securities,
by (y) the total maximum number of shares of Capital Stock
issuable upon the exercise of such Options or upon the
conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options. Except as provided
in Paragraph 4(b)(vi) hereof, no further adjustments of the
Exercise Price shall be made upon the actual issue of such
Capital Stock or of such Convertible Securities upon the
exercise of such Options or upon the actual issue of such
Capital Stock upon the conversion or exchange of such
Convertible Securities.
(ii) If at any time the company shall issue or sell
Convertible Securities, whether or not the rights to convert or
exchange such Convertible Securities are immediately
exercisable, and the price per share for which Capital Stock is
issuable upon the conversion or exchange of such Convertible
Securities shall be less than the Exercise Price in effect
immediately prior to the time of the issue or sale of such
Convertible Securities, then the total maximum number of shares
of Capital Stock issuable upon the conversion or exchange of all
such Convertible Securities shall (as of the date of the issue
or sale of such Convertible Securities) be deemed to be
outstanding and to have been issued and sold for such price per
share, provided that (a) except as provided in Paragraph
4(b)(vi) hereof, no further adjustments of the Exercise Price
shall be made upon the actual
-6-
9
issue of such Capital Stock upon the conversion or exchange of such Convertible
Securities, and (b) if any such issue or sale of such Convertible Securities is
made upon exercise of any Options for which adjustments of the Exercise Price
have been or are to be made pursuant to other provisions of this Paragraph
4(b), no further adjustment of the Exercise Price shall be made by reason of
such issue or sale. For purposes of this Paragraph 4(b)(ii), the price per
share for which Capital Stock is issuable shall be determined by dividing (x)
the total amount received or receivable by the Company as consideration for the
issue or sale of such Convertible Securities, plus the minimum aggregate amount
of additional consideration, if any, other than such Convertible Securities,
payable to the Company upon the conversion or exchange thereof, by (y) the
total maximum number of shares of Capital Stock issuable upon the conversion or
exchange of all such Convertible Securities.
(iii) If at any time the Company shall pay a dividend or make any
other distribution upon the Capital Stock payable in Capital Stock or
Convertible Securities, any Capital Stock or Convertible Securities, as the
case may be, issuable in payment of such dividend or distribution shall be
deemed to have been issued without consideration, and the Exercise Price shall
be reduced as if the Company had subdivided the outstanding shares of Capital
Stock into a greater number of shares as provided in Paragraph 4(c) hereof.
(iv) If at any time any Capital Stock, Convertible Securities, or
Options shall be issued or sold for cash, the consideration received therefor
shall be deemed to be the amount received by the Company therefor, without
deduction therefrom of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Company in connection therewith. If any
Capital Stock, Convertible Securities, or Options shall be issued or sold for a
consideration other than cash, the amount of the consideration other than cash
received by the Company therefor shall be deemed to be the fair value of such
consideration as determined in good faith by the Board of Directors of the
Company, except where such consideration consists of securities, in which case
the amount of consideration received by the Company shall be the market price
thereof (determined as provided in Paragraph 4(e) hereof) as of the date of
receipt, but in each such case without deduction therefrom of any expenses
incurred or any underwriting commissions or concessions paid or allowed by the
Company in connection therewith. In computing the market price of a note or
other obligation that is not listed or admitted to trading on any securities
exchange or quoted in the Nasdaq Stock Market or reported by the National
Quotation Bureau, Inc. or a similar reporting organization, the total
consideration to be received by the Company thereunder (including interest)
shall
-7-
10
be discounted to present value at the prime rate announced or published
in The Wall Street Journal under the caption "Money Rate" in effect at
the time the note or obligation is deemed to have been issued. If any
Capital Stock, Convertible Securities, or Options shall be issued in
connection with any merger of another corporation into the Company, the
amount of consideration therefor shall be deemed to be the fair value as
determined in good faith by the Board of Directors of the Company of
such portion of the assets of such merged corporation as the Board shall
determine to be attributable to such Capital Stock, Convertible
Securities, or Options.
(v) In case at any time the Company shall take a record of
the holders of Capital Stock for the purpose of entitling them (a) to
receive a dividend or other distribution payable in Capital Stock or
Convertible Securities, or (b) to subscribe for or purchase Capital
Stock or Convertible Securities, then such record date shall be deemed
to be the date of the issue or sale of such Capital Stock or Convertible
Securities.
(vi) If the purchase price provided for any Option referred
to in Paragraph 4(b)(i) hereof, or the price at which any Convertible
Securities referred to in Paragraph 4(b)(i) or (ii) hereof are
convertible into or exchangeable for Capital Stock, shall change at any
time (whether by reason of provisions designed to protect against
dilution or otherwise), the Exercise Price then in effect hereunder
shall forthwith be increased or decreased to such Exercise Price as
would have obtained had the adjustment made upon the issuance of such
Options or Convertible Securities been made upon the basis of (a) the
issuance of the number of shares of Capital Stock theretofore actually
delivered upon the exercise of such Options or upon the conversion or
exchange of such Convertible Securities, and the total consideration
received therefor, and (b) the number of shares of Capital Stock to be
issued for the consideration, if any, received by the Company therefor
and to be received on the basis of such changed price.
(vii) If any adjustment has been made in the Exercise Price
because of the issuance of Options or Convertible Securities and if any
of such Options or rights to convert or exchange such Convertible
Securities expire or otherwise terminate, then the Exercise Price shall
be readjusted to eliminate the adjustments previously made in connection
with the Options or rights to convert or exchange Convertible Securities
which have expired or terminated.
(viii) The number of shares of Capital Stock outstanding at
any given time shall not include shares owned or held by or for the
account of the Company, and the disposition of any such shares shall
be considered an issue or sale of Capital Stock.
-8-
11
(ix) Anything in Paragraph 4(a) or (b) hereof to the contrary
notwithstanding, the Company shall not be required to make any
adjustment of the Exercise Price in the case of (a) the issuance of the
Warrants or any other warrant issued to the holder hereof, (b) the
issuance of shares of Common Stock upon exercise of the Warrants or any
other warrant issued to the holder hereof, (c) the granting of stock
options by the Company to employees or directors of the Company or any
of its subsidiaries in connection with their employment or service as
directors to purchase Capital Stock, provided that the exercise price of
such stock options is at least equal to the market price of such shares
of Capital Stock on the date such stock options are granted and the
total number of such options granted after the date hereof does not
exceed the sum of (X) ten percent of the outstanding Common Stock of the
Company and (Y) the number of such employee or director options
outstanding on the date hereof that, on the date in question, have
expired or been cancelled, (d) the issuance of shares of Capital Stock
upon the exercise of the stock options referred to in clause (c) above,
and (e) the issuance of shares of Capital Stock upon the exercise,
conversion, or exchange of any securities issued prior to or
simultaneously with the date of the original issue of this Warrant.
(c) Subdivisions and Combinations. In case at any time the Company
shall subdivide the outstanding shares of Capital Stock into a greater number
of shares, the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced, and conversely, in case the outstanding
shares of Capital Stock shall be combined into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination shall be
proportionately increased. An adjustment made pursuant to this Paragraph 4(c)
shall become effective immediately after the effective date of such subdivision
or combination.
(d) Extraordinary Dividends and Distributions. If at any time the
Company shall pay a dividend or make a distribution to all holders of Capital
Stock, as such, which dividend or distribution is payable otherwise than in
cash out of earnings or earned surplus and otherwise than in Capital Stock,
Convertible Securities, or Options, then thereafter the holder of this Warrant,
upon the exercise of this Warrant, shall be entitled to receive the number of
shares of Common Stock being purchased upon such exercise and, in addition
thereto and without further payment, the stock and other securities and
property (including cash) which such holder would have received by way of
dividends or distributions (otherwise than in cash out of earnings or earned
surplus or in Capital Stock, Convertible Securities, or Options) as if
continuously, since the date of the original issue of this Warrant, such holder
(i) had been the record holder of the number of shares of Common Stock then
being purchased, and (ii) had retained all dividends and distributions in stock
or other securities (other than Capital Stock, Convertible Securities, or
Options) which would have been paid in respect of such Common
- 9 -
12
Stock or in respect of any stock or other securities which would have
been paid as dividends or distributions on such Common Stock.
(e) Computation of Market Price. For the purpose of any
computation under Paragraphs 2(a), 2(b) and 4(b) hereof, the market
price of the security in question on any day shall be deemed to be the
average of the last reported sale prices for the security for the 20
consecutive Trading Days beginning 30 Trading Days before the day in
question. The last reported sale price for each day shall be (i) the
last reported sale price of the security on the Nasdaq Stock Market's
National Market, or any similar system of automated dissemination of
quotations of securities prices then in common use, if so quoted, or
(ii) if not quoted as described in clause (i) above, the mean between
the high bid and asked quotations for such security as reported by the
National Quotation Bureau, Inc. if at least two securities dealers have
inserted both bid and asked quotations for such security on at least
10 of such 20 consecutive Trading Days, or (iii) if the security is
listed or admitted for trading on any national securities exchange, the
last sale price, or the closing bid price if no sale occurred, of such
class of security on the principal securities exchange on which such
class of security is listed or admitted to trading. If the security is
quoted on a national securities or central market system, in lieu of a
market or quotation system described above, the last reported sale price
shall be determined in the manner set forth in clause (ii) of the
preceding sentence if bid and asked quotations are reported but actual
transactions are not, and in the manner set forth in clause (iii) of the
preceding sentence if actual transactions are reported. If none of the
conditions set forth above is met, the last reported sale price of the
security on any day or the average of such last reported sale prices for
any period shall be the fair market value of such security as determined
by a member firm of the New York Stock Exchange, Inc. selected by the
Company. The term "Trading Days", as used herein means (i) if the
security is quoted on the Nasdaq Stock Market's National Market, or any
similar system of automated dissemination of quotations of securities
prices, days on which trades may be made on such system or (ii) if the
security is listed or admitted for trading on any national securities
exchange, days on which such national securities exchange is open for
business.
(f) Record Date Adjustments. In any case in which this
Paragraph 4 requires that a downward adjustment of the Exercise Price
shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (A) issuing
to the holder of this Warrant exercised after such record date and
before the occurrence of such event the additional Warrant Shares
issuable upon such exercise by reason of the adjustment required by
such event over and above the Warrant Shares issuable upon such
exercise before giving effect to such adjustment and (B) paying to
such holder any amount in cash in lieu of a fractional share pursuant
to Paragraph 4(i) hereof.
-10-
13
(g) Minimum Adjustment of Exercise Price. No adjustment of
the Exercise Price shall be made in an amount less than $.10 per share
in effect at the time such adjustment is otherwise required to be made,
but any such lesser adjustment shall be carried forward and shall be
made at the time and together with the next subsequent adjustment which,
together with any adjustments so carried forward, shall amount to not
less than $.10 per share. In case at any time the Company shall issue
Capital Stock by way of dividend on Capital Stock or subdivide or
combine the outstanding shares of Capital Stock, said amount of $.10 per
share (as theretofore increased or decreased, if the said amount shall
been adjusted in accordance with the provisions of this Paragraph 4(g))
shall forthwith be proportionately increased in the case of such a
combination or decreased in the case of such a subdivision or stock
dividend so as appropriately to reflect the same.
(h) Reorganization, Reclassification, Consolidation, Merger,
or Sale. If any capital reorganization of the Company, or any
reclassification of the Capital Stock, or any consolidation or merger of
the Company with or into another corporation or entity, or any sale of
all or substantially all the assets of the Company to another
corporation or entity, shall be effected in such a way that the holders
of Common Stock (or any other securities of the Company then issuable
upon the exercise of this Warrant) shall be entitled to receive stock or
other securities or property (including cash) with respect to or in
exchange for Common Stock (or such other securities), then lawful and
adequate provision shall be made whereby the holder of this Warrant
shall thereafter have the right to purchase and receive upon the basis
and upon the terms and conditions specified in this Warrant, and in lieu
of the shares of Common Stock (or such other securities) immediately
theretofore purchasable and receivable upon the exercise hereof, such
stock or other securities or property (including cash) as may be
issuable or payable with respect to or in exchange for a number of
outstanding shares of Common Stock (or such other securities) equal to
the number of shares of Common Stock (or such other securities)
immediately theretofore purchasable and receivable upon the exercise of
this Warrant, had such reorganization, reclassification, consolidation,
merger, or sale not taken place. In any such case appropriate provision
shall be made with respect to the rights and interests of the holder of
this Warrant to the end that the provisions hereof (including, without
limitation, the provisions for adjustments of the Exercise Price and of
the number of Warrant Shares purchasable upon exercise hereof) shall
thereafter be applicable, as nearly as reasonably may be, in relation to
the stock or other securities or property thereafter deliverable upon
the exercise hereof. In the event of a consolidation or merger of the
company with or into another corporation or entity as a result of which
a greater or lesser number of shares of common stock of the surviving
corporation or entity are issuable to holders of Capital Stock in
respect of the number of shares of Capital Stock outstanding immediately
prior to such consolidation or merger, then the Exercise Price in effect
immediately prior to such
-11-
14
consolidation or merger shall be adjusted in the same manner as though there
were a subdivision or combination of the outstanding shares of Capital stock.
(i) No Fractional Shares. No fractional shares of Common Stock are to
be issued upon the exercise of this Warrant, but the Company shall pay a cash
adjustment in respect of any fractional share which would otherwise be issuable
in an amount equal to the same fraction of the current market value of a share
of Common Stock, which current market value shall be the last reported sale
price (determined as provided in Paragraph 4(e) hereof) on the Trading Day
immediately preceding the date of the exercise.
(j) Other Notices. If at any time:
(i) the Company shall declare any dividend upon the Capital
Stock payable in shares of stock of any class or make any other
distribution (other than dividends or distributions payable in cash
out of earnings or earned surplus) to the holders of the Capital Stock;
(ii) the Company shall offer for subscription pro rata to the
holders of the Capital Stock any additional shares of stock of any
class or other rights;
(iii) there shall be any capital reorganization of the Company, or
reclassification of the Capital Stock, or consolidation or merger of
the Company with or into, or sale of all or substantially all its
assets to, another corporation or entity; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation, or winding-up of the Company;
then, in each such case, the Company shall promptly give to the holder of this
Warrant (a) notice of the date on which the books of the Company shall close or
a record shall be taken for determining the holders of Capital Stock entitled
to receive any such dividend, distribution, or subscription rights or for
determining the holders of Capital Stock entitled to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, notice of the date (or, if not then known, a
reasonable approximation thereof by the Company) when the same shall take
place. Such notice shall also specify the date on which the holders of Capital
Stock shall be entitled to receive such dividend, distribution, or subscription
rights or to exchange their Capital Stock for stock or other securities or
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, or winding-up, as the case may be.
Failure
-12-
15
to give any such notice or any defect therein shall not affect the
validity of the proceeding referred to in clauses (i), (ii), (iii),
and (iv) above.
5. No Rights or Liabilities as a Shareholder. This Warrant shall
not entitle the holder hereof to any voting rights or other rights as a
shareholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the holder hereof to purchase Warrant Shares, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the Exercise Price or as a shareholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
6. Transfer, Exchange, and Replacement of Warrant.
(a) Warrant Not Transferable. You agree that this Warrant may
not be transferred, sold, assigned or hypothecated, except to (i) your
wholly-owned subsidiaries or affiliates (as defined by the Securities
Exchange Act of 1934); (ii) the respective successors to you in a merger
or consolidation; (iii) the respective purchasers of all or
substantially all of your assets; (iv) your respective shareholders in
the event you are liquidated or dissolved; (v) any one or more financial
institutions (including, without limitation, any banks, investment
banking firms, investment funds and insurance companies); or (vi) any
other person or entity with respect to whom you have received the prior
written consent of the Company. It is not a condition to the transfer of
this Warrant that it be transferred in connection with a transfer of a
Note. Until due presentment for registration of a permitted transfer on
the Company's books, the Company may treat the registered holder hereof
as the owner and holder hereof for all purposes, and the Company shall
not be affected by any notice to the contrary.
(b) Replacement of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction,
or mutilation of this Warrant and, in the case of any such loss, theft,
or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company, or, in the case of any
such mutilation, upon surrender and cancellation of this Warrant, the
Company will execute and deliver, in lieu thereof, a new Warrant of like
tenor.
(c) Register. The Company shall maintain, at its principal
office at 0000 Xxxxxx Xxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 (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
permitted transferee and each prior owner of this Warrant.
- 13 -
16
(d) Exercise or Transfer Without Registration. Anything in
this Warrant to the contrary notwithstanding, if, at the time of the
surrender of this Warrant in connection with any exercise, transfer, or
exchange of this Warrant, this Warrant shall not be registered under the
Securities Act of 1933, as amended, and under applicable state
securities or blue sky laws, the Company may require, as a condition of
allowing such exercise, transfer, or exchange, that the holder of this
Warrant execute and deliver to the Company a seller's Rule 144
representation letter in form and substance reasonably acceptable to the
Company. The first holder of this Warrant, by taking and holding the
same, represents to the Company that such holder is acquiring this
Warrant for investment and not with a view to the distribution thereof.
(e) Expenses of Transfer. The Company shall pay all taxes
(other than those imposed on or in respect of income), other expenses
and charges payable in connection with the preparation, execution, and
delivery of any Warrants issued or prepared by the Company in connection
with this Paragraph 6.
7. Notices. All notices, requests, and other communications
required or permitted to be given or delivered hereunder to the holder of this
Warrant shall be in writing, and shall be personally delivered, or shall be
sent by certified or registered mail, postage prepaid and addressed, to such
holder at the address shown for such holder on the books of the Company, or at
such other address as shall have been furnished to the Company by notice from
such holder. All notices, requests, and other communications required or
permitted to be given or delivered hereunder to the Company shall be in
writing, and shall be personally delivered, or shall be sent by certified or
registered mail, postage prepaid and addressed, to the office of the Company at
0000 Xxxxxx Xxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: President,
or at such other address as shall have been furnished to the holder of this
Warrant by notice from the Company. Any such notice, request, or other
communication may be sent by telegram or telex, but shall in such case be
subsequently confirmed by a writing personally delivered or sent by certified
or registered mail as provided above. All notices, requests, and other
communications shall be deemed to have been given either at the time of the
delivery thereof to (or the receipt by, in the case of a telegram or telex) the
person entitled to receive such notice at the address of such person for
purposes of this Paragraph 7, or, if mailed, at the completion of the third full
day following the time of such mailing thereof to such address, as the case
may be.
8. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-14-
17
9. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof may not
be changed, waived, discharged, or terminated orally, but only by an
instrument in writing signed by the party (or any predecessor in
interest thereof) against which enforcement of the same is sought.
(b) Descriptive Headings. The descriptive headings of the
several paragraphs of this Warrant are inserted for purposes of
reference only, and shall not affect the meaning or construction of any
of the provisions hereof.
(c) Successors and Assigns. This Warrant shall be binding upon
any entity succeeding to the Company by merger, consolidation, or
acquisition of all or substantially all the Company's assets.
-15-
18
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer on this 9th day of April, 1997.
SOURCE MEDIA, INC.
By: /s/ XXXXXXX X. XXXX
-----------------------------
Xxxxxxx X. Xxxx
Chief Financial Officer
and Treasurer
19
FORM OF EXERCISE AGREEMENT
Dated: ______________, 19__.
To:
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to purchase _________________ shares of Common Stock
covered by such Warrant, and makes payment herewith in full therefor at the
price per share provided by such Warrant in the amount of $______________.
Please issue a certificate or certificates for such shares of Common Stock in
the name of and pay any cash for any fractional share to:
Name:
Signature:
Title of Signing Officer or Agent
(if any):
Note: The above signature should correspond exactly with the name on
the face of the within Warrant or with the name of the assignee
appearing in the assignment form.
and, if said number of shares of Common Stock shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the
name of said undersigned covering the balance of the shares purchasable
thereunder less any fraction of a share paid in cash.
20
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers all
the rights of the undersigned under the within Warrant, with respect to the
number of shares of Common Stock covered thereby set forth hereinbelow, to:
Name of Assignee Address No. of Shares
---------------- ------- -------------
, and hereby irrevocably constitutes and appoints ____________________ as agent
and attorney-in-fact to transfer said Warrant on the books of the within-named
corporation, with full power of substitution in the premises.
Dated: ______________, 19__.
In the presence of
Name:
Signature:
Title of Signing Officer or Agent
(if any):
Address:
Note: The above signature should correspond
exactly with the name on the face of
the within Warrant.
