Exhibit
4.1
NEITHER THE ISSUANCE
AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE
OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF
COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), REASONABLY
SATISFACTORY TO THE COMPANY, IN A GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD
PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.
NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR
FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
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Right to Purchase ________ shares of
Common Stock of Options Media Group Holdings, Inc. (subject to
adjustment as provided herein)
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FORM OF CLASS A
COMMON STOCK PURCHASE WARRANT
No. 2009-A-002
Issue Date: January 13,
2009
OPTIONS MEDIA GROUP
HOLDINGS, INC., a corporation organized under the laws of the State
of Nevada (the “Company”), hereby certifies that, for
value received, __________________________________, or its assigns
(the “Holder”), is entitled, subject to the terms set
forth below, to purchase from the Company at any time after the
Issue Date until 5:00 p.m., E.S.T on the fifth anniversary of the
Issue Date (the “Expiration Date”), up to ______ fully
paid and nonassessable shares of Common Stock at a per share
purchase price of $____. The aforedescribed purchase price
per share, as adjusted from time to time as herein provided, is
referred to herein as the “Purchase Price." The number
and character of such shares of Common Stock and the Purchase Price
are subject to adjustment as provided herein. Capitalized
terms used and not otherwise defined herein shall have the meanings
set forth in that certain Subscription Agreement (the “
Subscription Agreement ”), dated as of January 13,
2009, entered into by the Company and the Holder. The Company may
reduce the Purchase Price for some or all of the Warrants issued
under the Subscription Agreement (the “January
Warrants”), temporarily or permanently, provided such
reduction is made as to all outstanding January Warrants for all
Holders of such January Warrants.
As used herein the
following terms, unless the context otherwise requires, have the
following respective meanings:
(a)
The term
“Company” shall mean Options Media Group Holdings,
Inc., a Nevada corporation, and any corporation which shall succeed
or assume the obligations of Options Media Group Holdings, Inc.
hereunder.
(b)
The term “Common
Stock” includes (i) the Company's Common Stock, $0.001
par value per share, as authorized on the date of the Subscription
Agreement, and (ii) any other securities into which or for which
any of the securities described in (i) may be converted or
exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
(c)
The term “Other
Securities” refers to any stock (other than Common Stock) and
other securities of the Company or any other person (corporate or
otherwise) which the holder of the Warrant at any time shall be
entitled to receive, or shall have received, on the exercise of the
Warrant, in lieu of or in
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addition to Common
Stock, or which at any time shall be issuable or shall have been
issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 4 or otherwise.
(d)
The term “Warrant
Shares” shall mean the Common Stock issuable upon exercise of
this Warrant.
1.
Exercise of
Warrant .
1.1.
Number of Shares
Issuable upon Exercise . From and after the Issue
Date through and including the Expiration Date, the Holder hereof
shall be entitled to receive, upon exercise of this Warrant in
whole in accordance with the terms of subsection 1.2 or upon
exercise of this Warrant in part in accordance with
subsection 1.3, shares of Common Stock of the Company, subject
to adjustment pursuant to Section 4.
1.2.
Full
Exercise .
This Warrant may be exercised in full by the Holder hereof by
delivery of an original or facsimile copy of the form of
subscription attached as Exhibit A hereto (the
“Subscription Form”) duly executed by such Holder and
delivery within two days thereafter of payment, in cash, wire
transfer or by certified or official bank check payable to the
order of the Company, in the amount obtained by multiplying the
number of shares of Common Stock for which this Warrant is then
exercisable by the Purchase Price then in effect. The
original Warrant is not required to be surrendered to the Company
until it has been fully exercised.
1.3.
Partial
Exercise .
This Warrant may be exercised in part (but not for a
fractional share) by delivery of a Subscription Form in the manner
and at the place provided in subsection 1.2 except that the
amount payable by the Holder on such partial exercise shall be the
amount obtained by multiplying (a) the number of whole shares
of Common Stock designated by the Holder in the Subscription Form
by (b) the Purchase Price then in effect. On any such
partial exercise provided the Holder has surrendered the original
Warrant, the Company, at its expense, will forthwith issue and
deliver to or upon the order of the Holder hereof a new Warrant of
like tenor, in the name of the Holder hereof or as such Holder
(upon payment by such Holder of any applicable transfer taxes) may
request, the whole number of shares of Common Stock for which such
Warrant may still be exercised.
1.4.
Fair Market
Value . Fair
Market Value of a share of Common Stock as of a particular date
(the "Determination Date") shall mean:
(a)
If the Company's Common
Stock is traded on an exchange or is quoted on the NASDAQ Global
Market, NASDAQ Global Select Market, the NASDAQ Capital Market, the
New York Stock Exchange or the American Stock Exchange, LLC, then
the average of the closing sale prices of the Common Stock for the
five (5) Trading Days immediately prior to (but not including) the
Determination Date;
(b)
If the Company's Common
Stock is not traded on an exchange or on the NASDAQ Global Market,
NASDAQ Global Select Market, the NASDAQ Capital Market, the New
York Stock Exchange or the American Stock Exchange, Inc., but is
traded on the OTC Bulletin Board or in the over-the-counter market,
then the average of the closing bid and ask prices reported for the
five (5) Trading Days immediately prior to (but not including) the
Determination Date;
(c)
Except as provided in
clause (d) below and Section 3.1, if the Company's Common
Stock is not publicly traded, then as the Holder and the Company
agree, or in the absence of such an agreement, by arbitration in
accordance with the rules then standing of the American Arbitration
Association, before a single arbitrator to be chosen from a panel
of persons qualified by education and training to pass on the
matter to be decided; or
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(d)
If the Determination
Date is the date of a liquidation, dissolution or winding up, or
any event deemed to be a liquidation, dissolution or winding up
pursuant to the Company's charter, then all amounts to be payable
per share to holders of the Common Stock pursuant to the charter in
the event of such liquidation, dissolution or winding up, plus all
other amounts to be payable per share in respect of the Common
Stock in liquidation under the charter, assuming for the purposes
of this clause (d) that all of the shares of Common Stock then
issuable upon exercise of all of the Warrants are outstanding at
the Determination Date.
1.5.
Company
Acknowledgment . The Company will, at the time of
the exercise of the Warrant, upon the request of the Holder hereof,
acknowledge in writing its continuing obligation to afford to such
Holder any rights to which such Holder shall continue to be
entitled after such exercise in accordance with the provisions of
this Warrant. If the Holder shall fail to make any such request,
such failure shall not affect the continuing obligation of the
Company to afford to such Holder any such rights.
1.6.
Delivery of Stock
Certificates, etc. on Exercise . The Company agrees that, provided
the full purchase price listed in the Subscription Form is received
as specified in Section 1.2, the shares of Common Stock purchased
upon exercise of this Warrant shall be deemed to be issued to the
Holder hereof as the record owner of such shares as of the close of
business on the date on which delivery of a Subscription Form shall
have occurred and payment made for such shares as aforesaid. As
soon as practicable after the exercise of this Warrant in full or
in part, and in any event within three (3) business days thereafter (“Warrant Share Delivery
Date”), the Company at its expense (including the payment by
it of any applicable issue taxes) will cause to be issued in the
name of and delivered to the Holder hereof, or as such Holder (upon
payment by such Holder of any applicable transfer taxes) may direct
in compliance with applicable securities laws, a certificate or
certificates for the number of duly and validly issued, fully paid
and non-assessable shares of Common Stock (or Other Securities) to
which such Holder shall be entitled on such exercise, plus, in lieu
of any fractional share to which such Holder would otherwise be
entitled, cash equal to such fraction multiplied by the then Fair
Market Value of one full share of Common Stock, together with any
other stock or other securities and property (including cash, where
applicable) to which such Holder is entitled upon such exercise
pursuant to Section 1 or otherwise. The Company
understands that a delay in the delivery of the Warrant Shares
after the Warrant Share Delivery Date could result in economic loss
to the Holder. As compensation to the Holder for such loss,
the Company agrees to pay (as liquidated damages and not as a
penalty) to the Holder for late issuance of Warrant Shares upon
exercise of this Warrant the proportionate amount of $100 per
business day after the Warrant Share Delivery Date for each $10,000
of Purchase Price of Warrant Shares for which this Warrant is
exercised which are not timely delivered. The Company shall
pay any payments incurred under this Section in immediately
available funds upon demand. Furthermore, in addition to any
other remedies which may be available to the Holder, in the event
that the Company fails for any reason to effect delivery of the
Warrant Shares by the Warrant Share Delivery Date, the Holder may
revoke all or part of the relevant Warrant exercise by delivery of
a notice to such effect to the Company, whereupon the Company and
the Holder shall each be restored to their respective positions
immediately prior to the exercise of the relevant portion of this
Warrant, except that the liquidated damages described above shall
be payable through the date notice of revocation or rescission is
given to the Company.
1.7.
Buy-In
. In
addition to any other rights available to the Holder, if the
Company fails to deliver to a Holder the Warrant Shares as required
pursuant to this Warrant, within seven (7) business days after the
Warrant Share Delivery Date and the Holder or a broker on the
Holder’s behalf, purchases (in an open market transaction or
otherwise) shares of common stock to deliver in satisfaction of a
sale by such Holder of the Warrant Shares which the Holder was
entitled to receive from the Company (a " Buy-In "), then
the Company shall pay in cash to the Holder (in addition to any
remedies available to or elected by the Holder) the amount by which
(A) the Holder's total purchase price (including brokerage
commissions, if any) for the shares of common stock so purchased
exceeds (B) the aggregate Purchase Price of the Warrant Shares
required to have been delivered together
with interest thereon at a rate of 15% per annum, accruing until
such amount and any accrued interest thereon is paid in full (which
amount shall be paid as liquidated damages and not as a penalty).
For example, if a Holder
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purchases shares of
Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to $10,000 of Purchase Price of Warrant Shares
to have been received upon exercise of this Warrant, the Company
shall be required to pay the Holder $ 1,000,
plus interest. The Holder shall provide the
Company written notice indicating the amounts payable to the Holder
in respect of the Buy-In.
2.
Cashless
Exercise .
(a)
Payment upon exercise
may be made at the option of the Holder either in (i) cash,
wire transfer or by certified or official bank check payable to the
order of the Company equal to the applicable aggregate Purchase
Price, (ii) by delivery of Common Stock issuable upon exercise of
the Warrants in accordance with Section 2(b) below or
(iii) by a combination of any of the foregoing methods, for
the number of Common Stock specified in such form (as such exercise
number shall be adjusted to reflect any adjustment in the total
number of shares of Common Stock issuable to the holder per the
terms of this Warrant) and the holder shall thereupon be entitled
to receive the number of duly authorized, validly issued,
fully-paid and non-assessable shares of Common Stock (or Other
Securities) determined as provided herein.
(b)
Subject to the
provisions herein to the contrary, if the Fair Market Value of one
share of Common Stock is greater than the Purchase Price (at the
date of calculation as set forth below), in lieu of exercising this
Warrant for cash, the holder may elect to receive shares equal to
the value (as determined below) of this Warrant (or the portion
thereof being cancelled) by delivery of a properly endorsed
Subscription Form delivered to the Company by any means described
in Section 13, in which event the Company shall issue to the holder
a number of shares of Common Stock computed using the following
formula:
X= Y
(A-B)
A
Where
X=
the number of shares of
Common Stock to be issued to the holder
Y=
the number of shares of
Common Stock purchasable under the Warrant or, if only a portion of
the Warrant is being exercised, the portion of the Warrant being
exercised (at the date of such calculation)
A=
Fair Market
Value
B=
Purchase Price (as
adjusted to the date of such calculation)
For purposes of Rule
144 promulgated under the 1933 Act, it is intended, understood and
acknowledged that the Warrant Shares issued in a cashless exercise
transaction in the manner described above shall be deemed to have
been acquired by the Holder, and the holding period for the Warrant
Shares shall be deemed to have commenced, on the date this Warrant
was originally issued pursuant to the Subscription
Agreement.
3.
Adjustment for
Reorganization, Consolidation, Merger, etc.
3.1.
Fundamental Transaction
. If, at any
t
