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EXHIBIT
4.8
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND
THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED OR
SOLD EXCEPT
PURSUANT TO A REGISTRATION STATEMENT UNDER SUCH
ACT OR AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER
THAT AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OF THE
WARRANT IS FURTHER RESTRICTED AS DESCRIBED
HEREIN.
E COM VENTURES, INC.
Common Stock Purchase Warrant
Date of Issuance: [•], 2008
This Common Stock Purchase Warrant (this "Warrant") certifies
that, for value received, [•] (the "Holder"), is entitled,
upon the terms and subject to the limitations and exceptions set
forth herein, at any time and from time to time during the period
beginning at 12:01 a.m. New York time on the third ( 3
rd ) anniversary of the Date of Issuance (the
"Initial Exercise Date") and ending at 5:00 p.m. New York time on
the tenth (10 th ) anniversary of the Date of Issuance (the "Termination
Date"), to subscribe for and purchase from E Com Ventures, Inc., a
Florida corporation (the "Company"), up to an aggregate of
[•] ([•]) shares (subject to adjustment from time to
time pursuant to the terms hereof) (the "Warrant Shares") of the
Company’s Common Stock, $0.01 par value (the "Common Stock").
The purchase price of one Warrant Share (the "Exercise Price")
under this Warrant shall be $23.94 (subject to adjustment from time
to time pursuant to the terms hereof). This Warrant is one of a
series of warrants issued as of the date hereof (the "Warrants")
pursuant to the Agreement and Plan of Merger dated as of
December 21, 2007, by and among the Company, Model Reorg,
Inc., the stockholders of Model Reorg, Inc. and Model Reorg
Acquisition LLC (the "Merger Agreement").
1. Exercise of Warrant .
(a) The purchase rights represented by this Warrant may be
exercised by delivery of the Notice of Exercise Form annexed hereto
duly executed, at the office of the Company specified in
Section 13(j) hereto and upon payment of the Exercise Price of
the shares thereby purchased by wire transfer or cashier’s
check drawn on a United States bank. Promptly after the Date of
Exercise, subject to (i) compliance with securities laws
applicable to the issuance and sale of the Warrant Shares and
(ii) the Company’s receipt of this Warrant, the
Company’s transfer agent shall transmit certificates for
Warrant Shares purchased hereunder to the Holder at the address
specified in the Notice of Exercise Form. This Warrant shall be
deemed to have been exercised and the Holder shall be deemed to
have become the holder of record of such shares for all purposes as
of the Date of Exercise, notwithstanding that the transfer books of
the Company shall then be closed or certificates representing such
Warrant Shares shall not then have been actually delivered. A "Date
of Exercise" means the date on which the Holder shall have
delivered to the Company the Notice of Exercise Form appropriately
completed and duly signed and payment of the Exercise Price for the
number of Warrant Shares so indicated by the Holder to be
purchased.
(b) If this Warrant shall have been exercised in
part, the Company shall, promptly following receipt of this
Warrant, deliver to the Holder at the address specified by the
Holder in the Notice of Exercise Form a new Warrant evidencing the
rights of the Holder to purchase the unpurchased Warrant Shares
called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant.
2. No Fractional Shares or Scrip . No fractional shares
or scrip representing fractional shares shall be issued upon the
exercise of this Warrant. In lieu of any fraction of a share that
the Holder would otherwise be entitled to purchase upon such
exercise, such fraction shall be rounded up (for fractions of
one-half or greater) or down (for fractions of less than one-half)
to the nearest whole share.
3. Charges, Taxes and Expenses , Certificates for Warrant
Shares shall be issued without charge to the Holder for any issue
or transfer tax or other incidental expense in respect of the
issuance of such certificate, all of which taxes and expenses shall
be paid by the Company.
4. Restriction on Transfer of Warrant and Warrant Shares
. The Holder may not sell, transfer, assign, or otherwise dispose
of this Warrant or any part hereof except (a) by will or by
the laws of descent and distribution or (b) during the
Holder’s lifetime, to any member of the Holder’s family
or to any trust or other entity established for estate planning
purposes, the majority of the beneficial interests in which are
held by members of the Holder’s family. Other than pursuant
to clause (a) or (b), the Holder (including any such
subsequent Holder) may not sell, transfer, assign, or otherwise
dispose of this Warrant or any part hereof to any other person
without the prior, express written consent of the Company. The
transfer of the Warrant Shares shall be restricted to the extent
required by applicable securities laws, and the certificate or
Certificates evidencing the Warrant Shares shall bear the following
legend:
"THE ISSUANCE OF THE SHARES REPRESENTED BY THIS CERTIFICATE HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND SUCH
SHARES MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO A REGISTRATION
STATEMENT UNDER SUCH ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE."
5. No Rights as Shareholder until Exercise . This Warrant
does not entitle the Holder to any voting rights or other rights as
a shareholder of the Company before the exercise hereof,
6. Loss, Theft, Destruction or Mutilation of Warrant .
Upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant or
any stock certificate representing Warrant Shares, and in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (which, in the case of the Warrant, shall not
include the posting of any bond), and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in
lieu of such Warrant or stock certificate.
7. Acceleration of Initial Exercise Date .
At any time before the third (3 rd ) anniversary of the Date
of Issuance, the Initial Exercise Date shall be accelerated and
shall be deemed to occur immediately before the consummation of any
(a) merger, share exchange or consolidation of the Company
with or into any other person or entity, (b) sale of all or
substantially all of the Company’s assets in one or a series
of related transactions, or (c) tender offer or exchange offer
pursuant to which holders of not less than ninety percent
(90%) of the then outstanding shares of Common Stock tender or
exchange their shares for other securities, cash or property, other
than any such transaction as a result of which holders of a
majority of the voting securities of the Company outstanding
immediately before such transaction would continue to have
beneficial ownership, directly or indirectly, of a majority of the
combined voting power of the Company or the surviving entity
(including any person that, as a result of such transaction, owns
all or substantially all of the Company’s assets either
directly or through one or more subsidiaries) outstanding
immediately after such transaction.
8. Adjustments of Exercise Price and Number of Warrant
Shares . The number and kind of securities purchasable upon the
exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time. In case the Company shall
(i) pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock to holders of its
outstanding Common- Stock, (ii) subdivide its outstanding
shares of Common Stock into a greater number of shares,
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, or (iv) issue any
shares of its capital stock in a reclassification of the Common
Stock or a compulsory share exchange, then the number of Warrant
Shares purchasable upon exercise of this Warrant immediately prior
thereto shall be adjusted so that the Holder shall be entitled to
receive the kind and number of Warrant Shares or other securities
of the Company that he or she would have owned or have been
entitled to receive had such Warrant been exercised in advance
thereof Upon each such adjustment of the kind and number of Warrant
Shares or other securities of the Company that are purchasable
hereunder, the Holder shall thereafter be entitled to purchase the
number of Warrant Shares or other securities resulting from such
adjustment at an Exercise Price per Warrant Share or other security
obtained by multiplying the Exercise Price in effect immediately
before such adjustment by the number of Warrant Shares purchasable
hereunder immediately before such adjustment, and dividing such
product by the number of Warrant Shares or other securities of the
Company resulting from such adjustment. An adjustment made pursuant
to this paragraph shall become effective immediately after the
effective date of such event retroactive to the record date, if
any, for such event, subject to the effect of any exercise hereof
between such record date and such effective date.
9. Fundamental Transactions . If, at any time while this
Warrant is outstanding, (a) the Company effects any merger,
share exchange or consolidation of the Company with or into any
other person or entity, (b) the Company effects any sale of
all or substantially all of its assets in one or a series of
related transactions, (c) any tender offer or exchange offer
(whether by the Company or another person or entity) is completed
pursuant to which holders of Common Stock are permitted to tender
or exchange their shares for other securities, cash or property, or
(d) the Company effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for securities of
any other issuer, cash or property
(in any such case, a "Fundamental Transaction"),
then the Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the same amount and kind of securities,
cash or property as it would have been entitled to receive upon the
occurrence of such Fundamental Transaction if it had been,
immediately before such Fundamental Transaction, the holder of the
number of Warrant Shares then issuable upon exercise in
full
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