WARRANT AGREEMENT
Streamedia Communications, Inc., a Delaware corporation (Company), and American
Securities Transfer & Trust, Inc. (AST), 00000 Xxxx Xxxxxxx Xxxxxxx, Xxxxx X-0,
Xxxxxxxx, Xxxxxxxx 00000, a Colorado corporation (Warrant Agent), agree as
follows:
1. Purpose. The Company proposes to publicly offer and issue up
to 1,150,000 units (Units), each Unit consisting of (i) one
(1) share of the Company's $.001 par value common stock
(Shares) and (ii) one warrant permitting the purchase of one
(1) Share (Warrant).
2. Warrants. Each Warrant will entitle the registered holder of a
Warrant (Warrant Holder) to purchase from the Company one (1)
Shares at $12.75 per share (Exercise Price). A Warrant Holder
may exercise all or any number of Warrants resulting in the
purchase of a whole number of Shares.
3. Exercise Period. The Warrants may be exercised at any time
during the period commencing __________, 19____ and ending at
3:00 p.m., Denver Colorado time on __________, 19____
(Expiration Date) except as changed by Section 12 of this
Agreement. After the Expiration Date, any unexercised Warrants
will be void and all rights of Warrant Holders shall cease.
4. Non-Detachability. A Warrant Certificate may not be detached
from a Share certificate contained in a Unit until after
__________, 19____. Until such time a Warrant Certificate may
be split up, combined, exchanged or transferred on the books
of the Warrant Agent only together with a Share Certificate.
After __________, 19____, a Warrant Certificate may be split
up, combined, exchanged or transferred on the books of the
Warrant Agent.
5. Certificates. The Warrant Certificates shall be in registered form only
and shall be substantially in ------------ the form set forth in Exhibit A
attached to this Agreement. Warrant Certificates shall be signed by, ---------
or shall bear the facsimile signature of, the President or a Vice President of
the Company and the Secretary or an Assistant Secretary of the Company and shall
bear a facsimile of the Company's corporate seal. If any person, whose facsimile
signature has been placed upon any Warrant Certificate or the signature of an
officer of the Company, shall have ceased to be such officer before such Warrant
Certificate is countersigned, issued and delivered, such Warrant Certificate
shall be countersigned, issued and delivered with the same effect as if such
person had not ceased to be such officer. Any Warrant Certificate may be signed
by, or made to bear the facsimile signature of, any person who at the actual
date of the preparation of such Warrant Certificate shall be a proper officer of
the Company to sign such Warrant Certificate even though such person was not
such an officer upon
the date of the Agreement.
6. Countersigning. Warrant Certificates shall be manually
countersigned by the Warrant Agent and shall not be valid for
any purpose unless so countersigned. The Warrant Agent hereby
is authorized to countersign and deliver to, or in accordance
with the instructions of, any Warrant Holder any Warrant
Certificate which is properly issued.
7. Registration of Transfer and Exchanges. Subject to the
provisions of Section 4, the Warrant Agent shall from time to
time register the transfer of any outstanding Warrant
Certificate upon records maintained by the Warrant Agent for
such purpose upon surrender of such Warrant Certificate to the
Warrant Agent for transfer, accompanied by appropriate
instruments of transfer in form satisfactory to the Company
and the Warrant Agent and duly executed by the Warrant Holder
or a duly authorized attorney. Upon any such registration of
transfer, a new Warrant Certificate shall be issued in the
name of and to the transferee and the surrendered Warrant
Certificate shall be cancelled.
8. Exercise of Warrants.
a. Any one Warrant or any multiple of one Warrant
evidenced by any Warrant Certificate may be exercised
upon any single occasion on or after the Exercise
Date, and on or before the Expiration Date. A Warrant
shall be exercised by the Warrant Holder by
surrendering to the Warrant Agent the Warrant
Certificate evidencing such Warrant with the exercise
form on the reverse of such Warrant Certificate duly
completed and executed and delivering to the Warrant
Agent, by good check or bank draft payable to the
order of the Company, the Exercise Price for each
Share to be purchased.
b. Upon receipt of a Warrant Certificate with the exercise form thereon duly
executed together with payment in full of the Exercise Price for the Shares for
which Warrants are then being exercised, the Warrant Agent shall requisition
from any transfer agent for the Shares, and upon receipt shall make delivery of,
certificates evidencing the total number of whole Shares for which Warrants are
then being exercised in such names and denominations as are required for
delivery to, or in accordance with the instructions of, the Warrant Holder. Such
certificates for the Shares shall be deemed to be issued, and the person whom
such Shares are issued of record shall be deemed to have become a holder of
record of such Shares, as of the date of the surrender of such Warrant
Certificate and payment of the Exercise Price, whichever shall last occur,
provided that if the books of the Company with respect to the Shares shall be
deemed to be issued, and the person to whom such Shares are issued of record
shall be deemed to have become a record holder of such Shares, as of the date on
which such books shall next be open (whether before, on or after the Expiration
Date) but at the Exercise Price, whichever shall have last occurred, to the
Warrant Agent.
c. If less than all the Warrants evidenced by a Warrant
Certificate are exercised upon a single occasion, a
new Warrant Certificate for the balance of the
Warrants not so exercised shall be issued and
delivered to, or in accordance with, transfer
instructions properly given by the Warrant Holder
until the Expiration Date.
d. All Warrant Certificates surrendered upon exercise of the
Warrants shall be cancelled.
e. Upon the exercise, or conversion of any Warrant, the
Warrant Agent shall promptly deposit the payment into
an escrow account established by mutual agreement of
the Company and the Warrant Agent at a federally
insured commercial bank. All funds deposited in the
escrow account will be disbursed on a weekly basis to
the Company once they have been determined by the
Warrant Agent to be collected funds. No interest will
be paid to the issuer on these funds. Once the funds
are determined to be collected, the Warrant Agent
shall cause the share certificate(s) representing the
exercised Warrants to be issued.
f. Expenses incurred by American Securities Transfer &
Trust, Inc. while acting in the capacity as Warrant
Agent will be paid by the Company. These expenses,
including delivery of exercised share certificate to
the shareholder, will be deducted from the exercise
fee submitted prior to distribution of funds to the
Company. A detailed accounting statement relating to
the number of shares exercised, names of registered
Warrant Holder(s) and the net amount of exercised
funds remitted will be given to the Company with the
payment of each exercise amount.
g. At the time of exercise of the Warrant(s), the
transfer fee is to be paid by ____________________.
In the event the shareholder must pay the fee and
fails to remit same, the fee will be deducted from
the proceeds prior to distribution to the Company.
9. Taxes. The Company will pay all taxes attributable to the
initial issuance of Shares upon exercise of Warrants. The
Company shall not, however, be required to pay any tax which
may be payable in respect to any transfer involved in any
issue of Warrant Certificates or in the issue of any
certificates of Shares in the name other than that of the
Warrant Holder upon the exercise of any Warrant.
10. Mutilated or Missing Warrant Certificates. On receipt by the Company
and the Warrant Agent of --------------------------------------------- evidence
satisfactory as to the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate, the Company shall execute and the Warrant
Agent shall countersign and deliver in lieu thereof, a new Warrant Certificate
representing an equal aggregate number of Warrants. In the case of loss, theft
or destruction of any Warrant Certificate, the Registered Owner requesting
issuance of a new Warrant Certificate shall be required to secure an indemnity
bond from an approved surety bonding company. In the event a Warrant Certificate
is mutilated, such Certificate shall be surrendered and canceled by the Warrant
Agent prior to delivery of a new Warrant Certificate. Applicants for a
substitute Warrant Certificate shall also comply with such other regulations and
pay such other reasonable charges as the Warrant Agent may prescribe.
11. Reservation of Shares. For the purpose of enabling the Company
to satisfy all obligations to issue Shares upon exercise of
Warrants, the Company will at all times reserve and keep
available free from preemptive rights, out of the aggregate of
its authorized but unissued shares, the full number of Shares
which may be issued upon the exercise of the Warrants will
upon issue be fully paid and nonassessable by the Company and
free from all taxes, liens, charges and security interests
with respect to the issue thereof.
12. Governmental Restrictions. If any Shares issuable upon the exercise of
Warrants require registration -------------------------- or approval of any
governmental authority, the Company will endeavor to secure such registration or
approval; provided that in no event shall such Shares be issued, and the Company
shall have the authority to suspend the exercise of all Warrants, until such
registration or approval shall have been obtained; but all Warrants, the
exercise of which is requested during any such suspension, shall be exercisable
at the Exercise Price. If any such period of suspension continues past the
Expiration Date, all Warrants, the exercise of which have been requested on or
prior to the Expiration Date, shall be exercisable upon the removal of such
suspension until the close of business on the business day immediately following
the expiration of such suspension.
13. Adjustments. If prior to the exercise of any Warrants, the Company
shall have effected one or more ----------- stock split-ups, stock dividends or
other increases or reductions of the number of shares of its $____ par value
common stock outstanding without receiving compensation therefore in money,
services or property, the number of shares of common stock subject to the
Warrant granted shall, (i) if a net increase shall have been effected in the
number of outstanding shares of the Company's common stock, be proportionately
increased, and the cash consideration payable per share shall be proportionately
reduced, and, (ii) if a net reduction shall have been effected in the number of
outstanding shares of the Company's common stock, be proportionately reduced and
the cash consideration payable per share be
proportionately increased.
14. Notice to Warrant Holders. Upon any adjustment as described in Section
13, the Company within 20 days -------------------------- thereafter shall (i)
cause to be filed with the Warrant Agent a certificate signed by a Company
officer setting forth the details of such adjustment, the method of calculation
and the facts upon which such calculation is based, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause written notice of such adjustments to be given to each Warrant Holder
as of the record date applicable to such adjustment. Also, if the Company
proposes to enter into any reorganization, reclassification, sale of
substantially all of its assets, consolidation, merger, dissolution, liquidation
or winding up, the Company shall give notice of such fact at least 20 days prior
to such action to all Warrant Holders which notice shall set forth such facts as
indicate the effect of such action (to the extent such effect may be known at
the date of such notice) on the Exercise Price and the kind and amount of the
shares or other securities and property deliverable upon exercise of the
Warrants. Without limiting the obligation of the Company hereunder to provide
notice to each Warrant Holder, failure of the Company to give notice shall not
invalidate any corporate action taken by the Company.
15. No Fractional Warrants or Shares. The Company shall not be
required to issue fractions of Warrants upon the reissue of
Warrants, any adjustments as described in Section 13 or
otherwise; but the Company in lieu of issuing any such
fractional interest, shall round up or down to the nearest
full Warrant. If the total Warrants surrendered by exercise
would result in the issuance of a fractional share, the
Company shall not be required to issue a fractional share but
rather the aggregate number of shares issuable will be rounded
up or down to the nearest full share.
16. Rights of Warrant Holders. No Warrant Holder, as such, shall
have any rights of a shareholder of the Company, either at law
or equity, and the rights of the Warrant Holders, as such, are
limited to those rights expressly provided in this Agreement
or in the Warrant Certificates. The Company and the Warrant
Agent may treat the registered Warrant Holder in respect of
any Warrant Certificates as the absolute owner thereof for all
purposes notwithstanding any notice to the contrary.
17. Warrant Agent. The Company hereby appoints the Warrant Agent
to act as the agent of the Company and the Warrant Agent
hereby accepts such appointment upon the following terms and
conditions by all of which the Company and every Warrant
Holder, by acceptance of his Warrants, shall be bound:
a. Statements contained in this Agreement and in the
Warrant Certificates shall be taken as statements of
the Company. The Warrant Agent assumes no
responsibility for the correctness of any of the same
except such as describes the Warrant Agent or for
action taken or to be taken by the Warrant Agent.
b. The Warrant Agent shall not be responsible for any
failure of the Company to comply with any of the
Company's covenants contained in this Agreement or in
the Warrant Certificates.
c. The Warrant Agent may consult at any time with
counsel satisfactory to it (who may be counsel for
the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or to any
Warrant Holder in respect of any action taken,
suffered or omitted by it hereunder in good faith and
in accordance with the opinion or the advice of such
counsel, provided the Warrant Agent shall have
exercised reasonable care in the selection and
continued employment of such counsel.
d. The Warrant Agent shall incur no liability or
responsibility to the Company or to any Warrant
Holder for any action taken in reliance upon any
notice, resolution, waiver, consent, order,
certificate or other paper, document or instrument
believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
e. The Company agrees to pay to the Warrant Agent
reasonable compensation for all services rendered by
the Warrant Agent in the execution of this Agreement,
to reimburse the Warrant Agent for all expenses,
taxes and governmental charges and all other charges
of any kind or nature incurred by the Warrant Agent
in the execution of this Agreement and to indemnify
the Warrant Agent and save it harmless against any
and all liabilities, including judgments, costs and
counsel fees, for this Agreement except as a result
of the Warrant Agent's negligence or bad faith.
f. The Warrant Agent shall be under no obligation to institute any action, suit
or legal proceeding or to take any other action likely to involve expense unless
the Company or one or more Warrant Holders shall furnish the Warrant Agent with
reasonable security and indemnity for any costs and expenses which may be
incurred in connection with such action, suit or legal proceeding, but this
provision shall not affect the power of the Warrant Agent to take such action as
the Warrant Agent may consider proper, whether with or without any such security
or indemnity. All rights of action under this Agreement or under any of the
Warrants may be enforced by the Warrant Agent without the possession of any of
the Warrant Certificates or the production thereof at any trial or other
proceeding relative thereto, and any such action, suit or proceeding instituted
by the Warrant Agent shall be brought in its name as Warrant Agent, and any
recovery of judgement shall be for the ratable benefit of the Warrant Holders as
their respective rights or interest may appear.
g. The Warrant Agent and any shareholder, director, officer or employee of
the Warrant Agent may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant Agent
under this Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity.
18. Successor Warrant Agent. Any corporation into which the Warrant Agent
may be merged or converted or ------------------------- with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act of a party or the parties hereto. In any such event or
if the name of the Warrant Agent is changed, the Warrant Agent or such successor
may adopt the countersignature of the original Warrant Agent and may countersign
such Warrant Certificates either in the name of the predecessor Warrant Agent or
in the name of the successor Warrant Agent.
19. Change of Warrant Agent. The Warrant Agent may resign or be discharged
by the Company from its duties ------------------------ under this Agreement by
the Warrant Agent or the Company, as the case may be, giving notice in writing
to the other, and by giving a date when such resignation or discharge shall take
effect, which notice shall be sent at least 30 days prior to the date so
specified. If the Warrant Agent shall resign, be discharged or shall otherwise
become incapable of acting, the Company shall appoint a successor to the Warrant
Agent. If the Company shall fail to make such appointment within a period of 30
days after it has been notified in writing of such resignation or incapacity by
the resigning or incapacitated Warrant Agent or by any Warrant Holder or after
discharging the Warrant Agent, then any Warrant Holder may apply to the District
Court for Denver County, Colorado, for the appointment of a successor to the
Warrant Agent. Pending appointment of a successor to the Warrant Agent, either
by the Company or by such Court, the duties of the Warrant Agent shall be
carried out by the Company. Any successor Warrant Agent, whether appointed by
the Company or by such Court, shall be a bank or a trust company, in good
standing, organized under the laws of the State of Colorado or of the United
States of America, having its principal office in Denver, Colorado and having at
the time of its appointment as Warrant Agent, a combined capital and surplus of
at least four million dollars. After appointment, the successor Warrant Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Warrant Agent without further act or deed and
the former Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it thereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for effecting the
delivery or transfer. Failure to give any notice provided for in the section,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Warrant Agent or the appointment of the successor
Warrant Agent, as the case may be.
20. Notices. Any notice or demand authorized by this Agreement to
be given or made by the Warrant Agent or by any Warrant Holder
to or on the Company shall be sufficiently given or made if
sent by mail, first class, certified or registered, postage
prepaid, addressed (until another address is filed in writing
by the Company with the Warrant Agent), as follows:
(Name and Address of Company)
Any notice or demand authorized by this Agreement to be given
or made by any Warrant Holder or by the Company to or on the
Warrant Agent shall be sufficiently given or made if sent by
mail, first class, certified or registered, postage prepaid,
addressed (until another address is filed in writing by the
Warrant Agent with the Company), as follows:
American Securities Transfer & Trust, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Any distribution, notice or demand required or authorized by
this Agreement to be given or made by the Company or the
Warrant Agent to or on the Warrant Holders shall be
sufficiently given or made if sent by mail, first class,
certified or registered, postage prepaid, addressed to the
Warrant Holders at their last known addresses as they shall
appear on the registration books for the Warrant Certificates
maintained by the Warrant Agent.
21. Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement
without the approval of any Warrant Holders in order to cure
any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with
any other provisions herein, or to make any other provisions
in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable.
22. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent
shall bind and inure to the benefit of their respective
successors and assigns hereunder.
23. Termination. This Agreement shall terminate at the close of
business on the Expiration Date or such earlier date upon
which all Warrants have been exercised; provided, however,
that if exercise of the Warrants is suspended pursuant to
Section 12 and such suspension continues past the Expiration
Date, this Agreement shall terminate at the close of business
on the business day immediately following expiration of such
suspension. The provisions of Section 17 shall survive such
termination.
24. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under
the laws of the State of Colorado and for all purposes shall
be construed in accordance with the laws of said State.
25. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give any person or corporation other than the
Company, the Warrant Agent and the Warrant Holders any legal
or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of
the Company, the Warrant Agent and the Warrant Holders.
26. Counterparts. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all purposes
be deemed to be an original and all such counterparts shall
together constitute but one and the same instrument.
Date: ______________,____
(Name of Corporation)
a _____________ corporation
By:
SEAL
ATTEST:
Secretary:
American Securities Transfer & Trust, Inc. a Colorado corporation
By:
Vice President:
SEAL
ATTEST:
Secretary:
