Attached files
| file | filename |
|---|---|
| 8-K - International Cellular Accessories | v176997_8k.htm |
| EX-10.1 - International Cellular Accessories | v176997_ex10-1.htm |
| EX-3.1 - International Cellular Accessories | v176997_ex3-1.htm |
| EX-2.1 - International Cellular Accessories | v176997_ex2-1.htm |
Exhibit
4.1
IMAGE
METRICS, INC.
Warrant
No. ___
FORM OF WARRANT TO PURCHASE
COMMON STOCK
VOID
AFTER 5:00 P.M., EASTERN TIME,
ON THE
EXPIRATION DATE
THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT
BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT
COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE
FEDERAL AND STATE SECURITIES LAWS OR WITHOUT DELIVERING AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
FOR VALUE
RECEIVED, Image
Metrics, Inc., a
Nevada corporation (the “Company”),
hereby agrees to sell upon the terms and on the conditions hereinafter set
forth, at any time commencing on the date hereof but no later than 5:00 p.m.,
Eastern Time, on __________, 2014 (the “Expiration
Date”), to ______________________, or his, her or its registered assigns
(the “Holder”),
under the terms as hereinafter set forth, ____________ (_____) fully paid and
non-assessable shares of the Company’s Common Stock, par value $.001 per share
(the
“Common
Stock”), at a purchase price per share of $1.50 (the “Warrant
Price”), pursuant to the terms and conditions set forth in this warrant
(this “Warrant”).
The number of shares of Common Stock issued upon exercise of this Warrant
(“Warrant
Shares”) and the Warrant Price are subject to adjustment in certain
events as hereinafter set forth.
This
Warrant is one of a series of the Company’s Warrants to purchase Common Stock
issued pursuant to the Company’s Confidential Private Placement Memorandum,
dated January 26, 2010, as the same may be supplemented from time to time, to
investors.
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1.
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Exercise
of Warrant.
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(a) The
Holder may exercise this Warrant according to the terms and conditions set
forthherein by delivering to the Company, at the address set forth in Section 13
prior to 5:00 p.m., Eastern Time, on the Expiration Date (i) this Warrant, (ii)
the Subscription Form attached hereto as Exhibit A (the “Subscription
Form”) (having then been duly executed by the Holder), (iii) cash, a
certified check or a bank draft in payment of the purchase price, in lawful
money of the United States of America, for the number of Warrant Shares
specified in the Subscription Form.
(b) This
Warrant may be exercised in whole or in part so long as any exercise in part
hereof would not involve the issuance of fractional Warrant Shares. If exercised
in part, the Company shall deliver to the Holder a new Warrant, identical in
form to this Warrant, in the name of the Holder, evidencing the right to
purchase the number of Warrant Shares as to which this Warrant has not been
exercised, which new Warrant shall be signed by the President or Chief Executive
Officer of the Company. The term Warrant as used herein shall include any
subsequent Warrant issued as provided herein.
(c) No
fractional Warrant Shares or scrip representing fractional Warrant Shares shall
be issued upon the exercise of this Warrant. The Company shall pay cash in lieu
of such fractional Warrant Shares. The price of a fractional Warrant Share shall
equal the product of (i) the closing price of the Common Stock on the exchange
or market on which the Common Stock is then traded (if the Common Stock is not
then publicly traded, then upon the fair market value per share of the Common
Stock (as determined by the Company’s Board of Directors)), and (ii) the
applicable fraction.
(d) In
the event of any exercise of the rights represented by this Warrant, a
certificate or certificates for Warrant Shares so purchased, registered in the
name of the Holder on the stock transfer books of the Company, shall be
delivered to the Holder within a reasonable time after such rights shall have
been so exercised. The person or entity in whose name any certificate for
Warrant Shares is issued upon exercise of the rights represented by this Warrant
shall for all purposes be deemed to have become the holder of record of such
Warrant Shares immediately prior to the close of business on the date on which
the Warrant was surrendered and payment of the Warrant Price and any applicable
taxes was made, irrespective of the date of delivery of such certificate, except
that, if the date of such surrender and payment is a date when the stock
transfer books of the Company are closed, such person shall be deemed to have
become the holder of such shares at the opening of business on the next
succeeding date on which the Company’s stock transfer books are open. Except as
provided in Section 4 hereof, the Company shall pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of Warrant Shares on exercise of this Warrant.
(e) The
Company will not close its stockholder books or records in any manner which
prevents the timely exercise of this Warrant, pursuant to the terms
hereof.
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2.
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Disposition
of Warrant Shares and Warrant.
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(a) The
Holder hereby acknowledges that: (i) this Warrant and any Warrant Shares
purchased pursuant hereto are not being registered (A) under the Securities Act
of 1933 (the “Act”)
on the ground that the issuance of this Warrant is exempt from registration
under Section 4(2) of the Act as not involving any public offering, or (B) under
any applicable state securities law because the issuance of this Warrant does
not involve any public offering; and (ii) that the Company’s reliance on the
registration exemption under Section 4(2) of the Act and under applicable state
securities laws is predicated in part on the representations hereby made to the
Company by the Holder. The Holder represents and warrants that he, she or it is
acquiring this Warrant and will acquire Warrant Shares for investment for his,
her or its own account, with no present intention of dividing his, her or its
participation with others or reselling or otherwise distributing this Warrant or
Warrant Shares.
(b) The
Holder hereby agrees that he, she or it will not sell, transfer, pledge or
otherwise dispose of (collectively, “Transfer”)
all or any part of this Warrant and/or Warrant Shares unless and until he, she
or it shall have first have given notice to the Company describing such Transfer
and furnished to the Company (i) a statement from the transferee, whereby the
transferee represents and warrants that he, she, or it is acquiring this Warrant
and will acquire Warrant Shares, as applicable, for investment for his, her or
its own account, with no present intention of dividing his, her or its
participation with others or reselling or otherwise distributing this Warrant or
Warrant Shares, as applicable, and either (ii) an opinion, reasonably
satisfactory to counsel for the Company, of counsel (competent in securities
matters, selected by the Holder and reasonably satisfactory to the Company) to
the effect that the proposed Transfer may be made without registration under the
Act and without registration or qualification under any state law, or (iii) an
interpretative letter from the U.S. Securities and Exchange Commission to the
effect that no enforcement action will be recommended if the proposed sale or
transfer is made without registration under the Act.
(c) If,
at the time of issuance of Warrant Shares, no registration statement is in
effect with respect to such shares under applicable provisions of the Act, the
Company may, at its election, require that (i) the Holder provide written
reconfirmation of the Holder’s investment intent to the Company, and (ii) any
stock certificate evidencing Warrant Shares shall bear legends reading
substantially as follows:
“THE
SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE WARRANT PURSUANT
TO WHICH THESE SHARES WERE PURCHASED FROM THE COMPANY. COPIES OF SUCH
RESTRICTIONS ARE ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY. NO TRANSFER OF
SUCH SHARES OR OF THIS CERTIFICATE (OR OF ANY SHARES OR OTHER SECURITIES (OR
CERTIFICATES THEREFOR) ISSUED IN EXCHANGE FOR OR IN RESPECT OF SUCH SHARES)
SHALL BE EFFECTIVE UNLESS AND UNTIL THE TERMS AND CONDITIONS SET FORTH IN THE
WARRANT HAVE BEEN COMPLIED WITH.”
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“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”) OR AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT REQUIRED UNDER THE
ACT.”
In
addition, so long as the foregoing legend may remain on any stock certificate
evidencing Warrant Shares, the Company may maintain appropriate “stop transfer”
orders with respect to such certificates and the shares represented thereby on
its books and records and with those to whom it may delegate registrar and
transfer functions.
3. Reservation
of Shares.
The Company hereby agrees that at all times there shall be reserved for
issuance upon the exercise of this Warrant such number of shares of the Common
Stock as shall be required for issuance upon exercise of this Warrant. The
Company further agrees that all Warrant Shares will be duly authorized and will,
upon issuance and payment of the exercise price therefor, be validly issued,
fully paid and non-assessable, free from all taxes, liens, charges and
encumbrances with respect to the issuance thereof, other than taxes, if any, in
respect of any transfer occurring contemporaneously with such issuance and other
than transfer restrictions imposed by federal and state securities
laws.
Except
and to the extent as waived or consented to by the Holder, the Company shall not
by any action, including, without limitation, amending its certificate or
articles of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate to protect the rights of Holder as set forth in this
Warrant. Without limiting the generality of the foregoing, the
Company will (a) not increase the par value of any Warrant Shares above the
amount payable therefor upon such exercise immediately prior to such increase in
par value, (b) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant, and (c) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as may be necessary
to enable the Company to perform its obligations under this
Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
4. Exchange,
Transfer or Assignment of Warrant. Subject
to Section 2, this Warrant is exchangeable, without expense, at the option of
the Holder, upon presentation and surrender hereof to the Company or at the
office of its stock transfer agent, if any, for other Warrants of the Company
(“Warrants”)
of different denominations, entitling the Holder or Holders thereof to purchase
in the aggregate the same number of Warrant Shares purchasable hereunder.
Subject to Section 2, upon surrender of this Warrant to the Company or at the
office of its stock transfer agent, if any, with the Assignment Form attached
hereto as Exhibit
B (the “Assignment
Form”) duly executed and funds sufficient to pay any transfer tax, the
Company shall, without charge, execute and deliver a new Warrant in the name of
the assignee named in the Assignment Form and this Warrant shall promptly be
canceled. Subject to Section 2, this Warrant may be divided or combined with
other Warrants that carry the same rights upon presentation hereof at the office
of the Company or at the office of its stock transfer agent, if any, together
with a written notice specifying the names and denominations in which new
Warrants are to be issued and signed by the Holder hereof.
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5. Capital
Adjustments.
This Warrant is subject to
the following further provisions:
(a) Recapitalization,
Reclassification and Succession. If any recapitalization of the Company
or reclassification of its Common Stock or any merger or consolidation of the
Company into or with a corporation or other business entity, or the sale or
transfer of all or substantially all of the Company’s assets or of any successor
corporation’s assets to any other corporation or business entity (any such
corporation or other business entity being included within the meaning of the
term “successor corporation”) shall be effected, at any time while this Warrant
remains outstanding and unexpired, then, as a condition of such
recapitalization, reclassification, merger, consolidation, sale or transfer,
lawful and adequate provision shall be made whereby the Holder of this Warrant
thereafter shall have the right to receive upon the exercise hereof as provided
in Section 1 and in lieu of the Warrant Shares immediately theretofore issuable
upon the exercise of this Warrant, such shares of capital stock, securities or
other property as may be issued or payable with respect to or in exchange for
the number of outstanding shares of Common Stock equal to the number of Warrant
Shares immediately theretofore issuable upon the exercise of this Warrant had
such recapitalization, reclassification, merger, consolidation, sale or transfer
not taken place, and in each such case, the terms of this Warrant shall be
applicable to the shares of stock or other securities or property receivable
upon the exercise of this Warrant after such consummation.
(b) Subdivision or Combination
of Shares. If the Company at any time while this Warrant remains
outstanding and unexpired shall subdivide or combine its Common Stock, the
number of Warrant Shares purchasable upon exercise of this Warrant shall be
proportionately adjusted.
(c) Stock Dividends and
Distributions. If the Company at any time while this Warrant
is outstanding and unexpired shall issue or pay the holders of its Common Stock,
or take a record of the holders of its Common Stock for the purpose of entitling
them to receive, a dividend payable in, or other distribution of, Common Stock,
then the number of Warrant Shares purchasable upon exercise of this Warrant
shall be adjusted to the number of shares of Common Stock that Holder would have
owned immediately following such action had this Warrant been exercised
immediately prior thereto.
(d) Exercise Price
Adjustment. (i) If, prior to
exercise of this Warrant, the Company has issued, or shall be deemed to have
issued, Additional Shares of Common Stock (as defined below) for a consideration
per share of less than the then applicable Adjustment Trigger Price (as defined
below) or with a per share conversion, exercise or exchange price of less than
the then applicable Adjustment Trigger Price (each, a “Triggering
Issuance” and such lesser consideration or per share conversion, exercise
or exchange price, the “Triggering
Issuance Price”), then the Warrant Price will be adjusted immediately
thereafter so that it shall equal the rate determined by multiplying the Warrant
Price in effect immediately prior thereto by a fraction, the numerator of which
shall be the sum of the number of shares of Common Stock outstanding immediately
prior to the issuance of such additional shares and the number of shares of
Common Stock which the aggregate consideration received for the issuance of such
additional shares would purchase at such current market price per share of
Common Stock, and the denominator of which shall be the number of shares of
Common Stock outstanding immediately after the issuance of such additional
shares, multiplied by 1.50 (the “Adjusted
Warrant Price”). Thereafter, unless and until further adjusted pursuant
to this Section 5(d) or Section 5(e) hereof, the Warrant Price shall equal the
Adjusted Warrant Price and the Adjustment Trigger Price shall equal the
Triggering Issuance Price. The “Adjustment Trigger Price” shall be $1.00 on the
date hereof and be subject to adjustment as set forth in this Section 5(d) and
Section 5(e).
(ii) As
used herein, “Additional
Shares” shall mean all shares of Common Stock, or any securities
convertible into or exercisable or exchangeable for shares of Common Stock
(“Common
Stock Equivalents”), issued or deemed to be issued by the Company after
the date hereof; provided, however, that
issuances or deemed issuances described in subsections (a), (b) or (c) of this
Section 5 and in the case of (A) shares of Common Stock (or Common Stock
Equivalents) issued in acquisitions, mergers or strategic alliances, as
reasonably determined by the Board of Directors of the Company in the exercise
of their business judgment, (B) exercises of outstanding Image Metrics Limited
stock options and warrants assumed by the Company as a result of the Exchange
Offer (as defined in the Memorandum) consummated on _________, 2010, or (c)
shares of Common Stock (or Common Stock Equivalents) issued in connection with a
bridge financing and the conversion into the offering described in the
Memorandum of interim loans made prior to the Exchange Offer, shall not be
deemed issuances of Additional Shares of Common Stock.
(e) Price Adjustments.
Whenever the number of Warrant Shares purchasable upon exercise of this Warrant
is adjusted pursuant to Sections 5(a), 5(b) or 5(c), the then applicable Warrant
Price and then applicable Adjustment Trigger Price shall be proportionately
adjusted.
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(f) Certain Shares
Excluded. The number of shares of Common Stock outstanding at any given
time for purposes of the adjustments set forth in this Section 5 shall exclude
any shares then directly or indirectly held in the treasury of the
Company.
(g) Deferral and Cumulation of
De Minimis Adjustments. The Company shall not be required to
make any adjustment pursuant to this Section 5 if the amount of such adjustment
would be less than one percent (1%) of the Warrant Price in effect immediately
before the event that would otherwise have given rise to such adjustment. In
such case, however, any adjustment that would otherwise have been required to be
made shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to not less than one percent (1%) of the Warrant Price in
effect immediately before the event giving rise to such next subsequent
adjustment. All calculations under this Section 5 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be, but in no
event shall the Company be obligated to issue fractional Warrant Shares or
fractional portions of any securities upon the exercise of the
Warrant.
(h) Duration of
Adjustment. Following each computation or readjustment as provided in
this Section 5, the new adjusted Warrant Price and number of Warrant Shares
purchasable upon exercise of this Warrant shall remain in effect until a further
computation or readjustment thereof is required.
(i) Voluntary Adjustment by
Company. The Company may at any time during the term of this Warrant
reduce the then current Exercise Price to any amount and for any period of time
deemed appropriate by the Board of Directors of the Company.
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6.
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Redemption.
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(a) Optional Redemption.
Provided that the Registration Statement is then effective, the Company may
redeem not less than all the Warrants then outstanding for the Redemption Price
any time after the average Closing Bid Price of the Company’s Common Stock
exceeds $5.00 per share for a period of 30 days with an average daily trading
volume of at least 50,000 shares per day for a period of 20 Trading Days ending
within 15 days of the Notice Date.
(b) Redemption
Procedures. Not less than 30 days before any Redemption Date,
written notice shall be given to the Holder of this Warrant specifying the
number of Warrant Shares underlying this Warrant to be redeemed, the paragraph
of this Section 6 pursuant to which such redemption shall be made and the place
and date of such redemption, which date shall not be a day on which banks in the
City of New York are required or authorized to close. If such notice of
redemption shall have been duly given and if on or before such Redemption Date
the funds necessary for redemption shall have been set aside so as to be and
continue to be available therefor, then, notwithstanding that this Warrant shall
not have been surrendered for cancellation, after the close of business on such
Redemption Date, the Warrant Shares so called for redemption shall no longer be
Warrant Shares and all rights with respect to such Warrant Shares shall
forthwith after the close of business on the Redemption Date cease, except only
the right of the Holder to receive, upon presentation of this Warrant, the
Redemption Price therefor, without interest thereon. The Warrant may be
exercised in accordance with its terms at any time after notice of redemption
shall have been given by the Company pursuant to this section and prior to the
time and date fixed for redemption. On and after the redemption date, the record
holder of the Warrant shall have no further rights except to receive, upon
surrender of the Warrant, the Redemption Price.
(c) Definitions. For the
purposes of this Section 6, the following definitions shall apply:
“Closing
Bid Price” shall mean as of any date, the last closing bid price on the
Principal Market, as reported by Bloomberg, or, if the Principal Market begins
to operate on an extended hours basis and does not designate the closing bid
price then the last bid price prior to 4:00:00 p.m., New York Time,
as reported by Bloomberg, or, if the Principal Market is not the principal
securities exchange or trading market for such security, the last closing bid
price on the Eligible Market that is the principal securities exchange or
trading market where such security is listed or traded as reported by Bloomberg,
or if the foregoing do not apply, the last closing bid price of such security in
the over-the-counter market on the electronic bulletin board for such security
as reported by Bloomberg, or, if no closing bid price is reported for such
security by Bloomberg, the average of the bid prices of any market makers for
such security as reported in the "pink sheets" by Pink Sheets LLC (formerly the
National Quotation Bureau, Inc.).
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“Eligible
Market” shall mean the Principal Market, the Nasdaq Global Market, the
Nasdaq Capital Market, the New York Stock Exchange, Inc. or the NYSE Amex
(formerly the American Stock Exchange).
“Notice
Date” shall mean the date on which written notice is given to the Holder
of this Warrant pursuant to this Section 6.
“Principal
Market” shall mean the OTC Bulletin Board.
“Redemption
Date” shall mean the date set by the Company for redemption of this
Warrant.
“Redemption
Price” shall mean $.05 per Warrant Share
“Registration
Statement” shall mean the registration statement registering the Warrant
Shares to be filed by the Company, as further described in the Subscription
Agreement (as defined below).
“Reporting
Period” shall mean the four full fiscal quarters immediately following
the date of this Warrant.
“Trading
Day” shall mean any day on which trading in the Common Stock is reported
on the Principal Market, or, if the Principal Market is not the principal
trading market for the Common Stock, then on the Eligible Market that is the
principal securities exchange or securities market on which the Common Stock is
then traded; provided that "Trading Day" shall not include any day on which the
Common Stock is scheduled to trade on such exchange or market for less than 4.5
hours or any day that the Common Stock is suspended from trading during the
final hour of trading on such exchange or market (or if such exchange or market
does not designate in advance the closing time of trading on such exchange or
market, then during the hour ending at 4:00 p.m., Eastern Time).
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7.
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Notice
to Holders.
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(a) Notice of Record Date. In
case:
(i) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time receivable upon the exercise of this Warrant) for the
purpose of entitling them to receive any dividend (other than a cash dividend
payable out of earned surplus of the Company) or other distribution, or any
right to subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right;
(ii) of
any capital reorganization of the Company, any reclassification of the capital
stock of the Company, any consolidation with or merger of the Company into
another corporation, or any conveyance of all or substantially all of the assets
of the Company to another corporation; or
(iii) of
any voluntary dissolution, liquidation or winding-up of the
Company;
then, and
in each such case, the Company will mail or cause to be mailed to the Holder
hereof at the time outstanding a notice specifying, as the case may be, (i) the
date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, is to be fixed, as of which
the holders of record of Common Stock (or such stock or securities at the time
receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution or winding-up. Such notice shall
be mailed at least ten (10) calendar days prior to the record date therein
specified, or if no record date shall have been specified therein, at least ten
(10) days prior to such specified date.
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(b) Certificate of
Adjustment. Whenever any adjustment shall be made pursuant to Section 5
hereof, the Company shall promptly make available and have on file for
inspection a certificate signed by its Chairman, Chief Executive Officer,
President or a Vice President, setting forth in reasonable detail the event
requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated and the Warrant Price and number of Warrant Shares
purchasable upon exercise of this Warrant after giving effect to such
adjustment.
7.
Loss,
Theft, Destruction or Mutilation.
Upon receipt by the Company of evidence satisfactory to it, in the
exercise of its reasonable discretion, of the ownership and the loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft or
destruction, of indemnity reasonably satisfactory to the Company and, in the
case of mutilation, upon surrender and cancellation thereof, the Company will
execute and deliver in lieu thereof, without expense to the Holder, a new
Warrant of like tenor dated the date hereof.
8.
Warrant
Holder Not a Stockholder.
The Holder of this Warrant, as such, shall not be entitled by reason of
this Warrant to any rights whatsoever as a stockholder of the Company, including
but not limited to voting rights. No provision hereof, in the absence of any
affirmative action by Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of Holder, shall
give rise to any liability of Holder for the purchase price of any Common Stock
or as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
9.
Registration
Rights.
Warrant Shares will be accorded the registration rights under the Act set
forth in that certain subscription agreement between the Company and the
original Holder (the “Subscription
Agreement”) pursuant to which this Warrant was originally
issued.
10.
Notices.
Any notice provided for in this Warrant must be in writing and must be
either personally delivered, mailed by first class mail (postage prepaid and
return receipt requested), or sent by reputable overnight courier service
(charges prepaid) to the recipient at the address below indicated:
If to the
Company:
Image
Metrics, Inc.
1918 Main
Street, 2nd
Floor
Santa
Monica, California 90405
Attention:
President
If to the
Holder:
To the
address of such Holder set forth on the books and records of the
Company.
or such
other address or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending party. Any notice
under this Warrant will be deemed to have been given (a) if personally
delivered, upon such delivery, (b) if mailed, five days after deposit in the
U.S. mail, or (c) if sent by reputable overnight courier service, one business
day after such services acknowledges receipt of the notice.
11.
Choice
of Law.
THIS WARRANT IS ISSUED UNDER AND SHALL FOR ALL PURPOSES BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
GIVING EFFECT TO ITS CONFLICTS OF LAW RULES.
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12.
Submission
to Jurisdiction. EACH OF THE HOLDER AND THE COMPANY SUBMITS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS WARRANT AND AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE HOLDER AND THE
COMPANY ALSO AGREE NOT TO BRING ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS WARRANT IN ANY OTHER COURT. EACH OF THE PARTIES WAIVES ANY
DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF ANY ACTION OR PROCEEDING SO
BROUGHT AND WAIVES ANY BOND, SURETY, OR OTHER SECURITY THAT MIGHT BE REQUIRED OF
ANY OTHER PARTY WITH RESPECT THERETO.
13.
Warrant
Register. The Company shall register this Warrant, upon records to be
maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time.
The Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the
contrary.
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14.
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Miscellaneous.
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(a) Remedies. Holder, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Warrant. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Warrant and hereby agrees to waive and not to assert
the defense in any action for specific performance that a remedy at law would be
adequate.
(b) Successors and
Assigns. Subject to applicable securities laws, this Warrant and the
rights and obligations evidenced hereby shall inure to the benefit of and be
binding upon the successors of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the
benefit of all Holders from time to time of this Warrant and shall be
enforceable by any such Holder or holder of Warrant Shares.
(c) Amendment. This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
(d) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
IN
WITNESS WHEREOF, the Company has duly caused this Warrant to be signed on its
behalf, in its corporate name and by a duly authorized officer, as of this ___
day of ________ 2010.
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IMAGE
METRICS, INC.
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By:
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Michael
R. Starkenburg
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President
and Chief Executive
Officer
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8
EXHIBIT
A
SUBSCRIPTION
FORM
Image
Metrics, Inc.
1918 Main
Street, 2nd
Floor
Santa
Monica, California 90405
Attention:
President
The
undersigned hereby (1) irrevocably elects to exercise his, her or its rights to
purchase ____________ shares of the common stock, par value $.001 per share
(“Common
Stock”), of Image Metrics, Inc., a Nevada corporation, covered by the
attached Warrant, (2) makes payment in full of the purchase price therefore by
enclosure of cash, a certified check or bank draft, (3) requests that
certificates for such shares of Common Stock be issued in the name
of:
(Please
print the Warrant holder’s name, address and Social Security/Tax Identification
Number)
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and (4)
if such number of shares of Common Stock shall not be all the shares receivable
upon exercise of the attached Warrant, requests that a new Warrant for the
balance of the shares covered by the attached Warrant be registered in the name
of, and delivered to:
(Please
print name, address and Social Security/Tax Identification Number)
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In lieu
of receipt of a fractional share of Common Stock, the undersigned will receive a
check representing payment therefor.
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Dated:
_____________________
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PRINT
WARRANT HOLDER NAME
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Name:
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Title:
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Witness:
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9
EXHIBIT
B
ASSIGNMENT
FORM
Image
Metrics, Inc.
1918 Main
Street, 2nd
Floor
Santa
Monica, California 90405
Attention:
President
FOR VALUE
RECEIVED, _______________________________________________ hereby sells, assigns
and transfers unto
(Please
print assignee’s name, address and Social Security/Tax Identification
Number)
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the right
to purchase shares of common stock, par value $.001 per share, of Image Metrics,
Inc., a Nevada corporation (the “Company”),
represented by this Warrant to the extent of shares as to which such right is
exercisable and does hereby irrevocably constitute and appoint
____________________________, Attorney, to transfer the same on the books of the
Company with full power of substitution in the premises.
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Dated:
_____________________
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PRINT
WARRANT HOLDER NAME
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Name:
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Title:
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Witness:
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10