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THE PARENT COMPANY COMMON STOCK PURCHASE WARRANT,

Warrant Agreement

THE PARENT COMPANY COMMON STOCK PURCHASE WARRANT, | Document Parties: PARENT COMPANY You are currently viewing:
This Warrant Agreement involves

PARENT COMPANY

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Title: THE PARENT COMPANY COMMON STOCK PURCHASE WARRANT,
Governing Law: New York     Date: 7/15/2008
Industry: Retail (Catalog and Mail Order)     Sector: Services

THE PARENT COMPANY COMMON STOCK PURCHASE WARRANT,, Parties: parent company
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EXHIBIT 10.3

THIS COMMON STOCK PURCHASE WARRANT AND THE SHARES THAT MAY BE PURCHASED HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS COMMON STOCK PURCHASE WARRANT HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO DISTRIBUTION, AND THIS COMMON STOCK PURCHASE WARRANT AND THE SHARES THAT MAY BE PURCHASED HEREUNDER MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AND REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL THAT THE PROPOSED TRANSACTION DOES NOT VIOLATE THE SECURITIES ACT OF 1933, AND APPLICABLE STATE SECURITIES LAWS.

THE PARENT COMPANY

COMMON STOCK PURCHASE WARRANT

 

Date of Issuance: July 10, 2008   Certificate No. W-2

THIS IS TO CERTIFY that JOHN C. TEXTOR , a resident of the State of Florida, and his transferees, successors and assigns (the “ Holder ”), for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, is entitled (i) to purchase from THE PARENT COMPANY , a Colorado corporation (the “ Company ”), at the price of $1.6453 per share (the “ Exercise Price ”), at any time after the date hereof (the “ Commencement Date ”) and expiring on July 10, 2018 (the “ Expiration Date ”), 150,000 shares of the fully paid and nonassessable Common Stock, par value $0.001 per share, of the Company (as such number may be adjusted as provided herein). The 150,000 shares of Common Stock which may be purchased pursuant to this Warrant are referred to herein as the “ Aggregate Number .”

The Aggregate Number and Exercise Price set forth above shall also be adjusted under certain conditions specified in Section 5 of this Warrant, including, but not limited to, Stock Dividends, Stock Subdivisions, Stock Combinations and certain Capital Stock issuances. In addition, the adjustments set forth above shall apply to any Common Stock issued upon exercise of this Warrant.

Capitalized terms used herein shall have the meanings ascribed to such terms in Section 10 hereof unless otherwise defined herein.

SECTION 1. The Warrant; Transfer and Exchange .

(a) The Warrant . This common stock purchase warrant (this “ Warrant ”) is issued in connection with the execution and delivery of the Personal Guaranty (as defined in the Investment Agreement) on the Closing Date. This Warrant and the rights and privileges of the Holder hereunder may be exercised by the Holder in whole or in part as provided herein, shall survive any termination of said Personal Guaranty and, as more fully set forth in Sections 1(b) and 7 hereof, subject to the terms of this Warrant, may be transferred by the Holder to any other Person or Persons who meet the requirements set forth herein at any time or from time to time, in whole or in part, whether or not said Personal Guaranty is outstanding or has been terminated.

 


(b) Transfer and Exchanges . The Company shall initially record this Warrant on a register to be maintained by the Company with its other books and subject to Section 7 hereof, from time to time thereafter shall reflect the transfer of this Warrant on such register when surrendered for transfer in accordance with the terms hereof and properly endorsed, accompanied by appropriate instructions, and further accompanied by payment in cash or by check, bank draft or money order payable to the order of the Company, in United States currency, of an amount equal to any stamp or other tax or governmental charge or fee required to be paid in connection with the transfer thereof. Upon any such transfer, a new warrant or warrants shall be issued to the transferee and the Holder (in the event this Warrant is only partially transferred) and the surrendered warrant shall be canceled. This Warrant may be exchanged at the option of the Holder, when surrendered at the Principal Office of the Company, for another warrant or other warrants of like tenor and representing in the aggregate the right to purchase a like number of shares of Common Stock.

SECTION 2. Exercise .

(a) Right to Exercise . At any time after the Commencement Date and on or before the Expiration Date, the Holder, in accordance with the terms hereof, may exercise this Warrant, in whole at any time or in part from time to time, by delivering this Warrant to the Company during normal business hours on any Business Day at the Company’s Principal Office, together with the Notice of Exercise, in the form attached hereto as Exhibit A and made a part hereof (the “ Notice of Exercise ”), duly executed, and payment of the Exercise Price per share for each share purchased, as specified in the Notice of Exercise. The aggregate Exercise Price (the “ Aggregate Exercise Price ”) to be paid for the shares to be purchased (the “ Exercise Amount ”) shall equal the product of (i) the Exercise Amount multiplied by (ii) the Exercise Price. If the Expiration Date is not a Business Day, then this Warrant may be exercised on the next succeeding Business Day.

(b) Payment of the Aggregate Exercise Price . Payment of the Aggregate Exercise Price shall be made to the Company in cash or other immediately available funds or as provided in Section 2(c) , or a combination thereof. In the case of payment of all or a portion of the Aggregate Exercise Price pursuant to Section 2(c) , the direction by the Holder to make a “Cashless Exercise” shall serve as accompanying payment for that portion of the Exercise Price.

(c) Cashless Exercise . The Holder shall have the right to pay all or a portion of the Aggregate Exercise Price by making a “Cashless Exercise”, in which case the portion of the Aggregate Exercise Price to be so paid shall be paid by reducing the number of shares of Common Stock otherwise issuable pursuant to the Notice of Exercise by an amount equal to (i) the Aggregate Exercise Price to be so paid divided by (ii) the Fair Market Value Per Share.

(d) Issuance of Shares of Common Stock . Upon receipt by the Company of this Warrant at its Principal Office in proper form for exercise, and accompanied by the Notice of Exercise and payment of the Aggregate Exercise Price as aforesaid, the Holder shall be deemed to be the holder of record of the shares of Common Stock issuable upon such exercise, notwithstanding that certificates representing such shares of Common Stock may not then be actually delivered. Within three Business Days after such surrender of this Warrant, delivery of the Notice of Exercise and payment of the Aggregate Exercise Price as aforesaid, the Company shall direct its transfer agent to issue and cause to be delivered to, or upon the written order of, the Holder (and in such name or names as the Holder may designate) a certificate or certificates for the Exercise Amount, subject to any reduction as provided in Section 2(c) for a Cashless Exercise.

 

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(e) Fractional Shares . The Company may, but shall not be required to, deliver fractions of shares of Common Stock upon exercise of this Warrant. If any fraction of a share of Common Stock would be deliverable upon an exercise of this Warrant, the Company may, in lieu of delivering such fraction of a share of Common Stock, make a cash payment to the Holder in an amount equal to the same fraction of the Fair Market Value Per Share determined as of the Business Day immediately preceding the date of exercise of this Warrant.

(f) Partial Exercise . In the event of a partial exercise of this Warrant, the Company shall issue to the Holder a Warrant in like form for the unexercised portion thereof which has not expired.

SECTION 3. Payment of Taxes . The Company shall pay all stamp taxes attributable to the initial issuance of shares or other securities issuable upon the exercise of this Warrant or issuable pursuant to Section 5 hereof, excluding any tax or taxes which may be payable because of the transfer involved in the issuance or delivery of any certificates for shares or other securities in a name other than that of the Holder in respect of which such shares or securities are issued.

SECTION 4. Replacement Warrant . In case this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue and deliver in exchange and substitution for and upon cancellation of the mutilated Warrant, or in lieu of and in substitution for this Warrant lost, stolen or destroyed, a new Warrant of like tenor and representing an equivalent right or interest, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction of such Warrant and upon receipt of indemnity reasonably satisfactory to the Company provided that if the Holder is a financial institution or other institutional or fund investor its own agreement shall be satisfactory.

SECTION 5. Adjustments to Aggregate Number and Exercise Price .

Under certain conditions, the Aggregate Number and the Exercise Price are subject to adjustment as set forth in this Section 5 .

(a) Adjustments . The Aggregate Number and the Exercise Price, after taking into consideration any prior adjustments pursuant to this Section 5 , shall be subject to adjustment from time to time as follows and, thereafter, as adjusted, shall be deemed to be the Aggregate Number and the Exercise Price hereunder.

(i) Stock Dividends; Subdivisions and Combinations . In case at any time or from time to time the Company shall:

(A) issue to the holders of its Common Stock a dividend payable in, or other distribution of, shares of Common Stock (a “ Stock Dividend ”),

(B) subdivide its outstanding shares of Common Stock into a larger number of shares of Common Stock, including without limitation by means of a stock split (a “ Stock Subdivision ”), or

(C) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock (a “ Stock Combination ”),

then the Aggregate Number in effect immediately prior thereto shall be (1) proportionately increased in the case of a Stock Dividend or a Stock Subdivision and (2) proportionately decreased in the case of a Stock Combination and the Exercise Price in effect immediately prior thereto shall be (3) proportionately decreased in the case of a Stock Dividend or a Stock Subdivision and (4)

 

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proportionately increased in the case of a Stock Combination. In the event the Company shall declare or pay, without consideration, any dividend on the Common Stock payable in any right to acquire Common Stock for no consideration, then the Company shall be deemed to have made a Stock Dividend in an amount of shares equal to the maximum number of shares issuable upon exercise of such rights to acquire Common Stock.

(ii) Other Distributions . In case at any time or from time to time the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any dividend or other distribution (collectively, a “ Distribution ”) of:

(A) cash,

(B) any evidences of its indebtedness (other than Convertible Securities), any shares of its Capital Stock (other than a Distribution of additional shares of Common Stock or Convertible Securities) or any other securities or property of any nature whatsoever (other than cash) or

(C) any options, warrants or other rights to subscribe for or purchase any of the following: any evidences of its indebtedness (other than Convertible Securities), any shares of its Capital Stock (other than a Distribution of additional shares of Common Stock or Convertible Securities) or any other securities or property of any nature whatsoever,

then the Holder shall be entitled to elect by written notice to the Company to receive (1) immediately and without further payment the cash, evidences of indebtedness, stock, securities, other property, options, warrants and/or other rights (or any portion thereof) to which the Holder would have been entitled by way of such Distribution as if the Holder had exercised this Warrant immediately prior to such Distribution or (2) upon the exercise of this Warrant at any time on or after the taking of such record in accordance with the terms hereof, the number of Warrant Shares to be received upon exercise of this Warrant determined as stated herein and, in addition and without further payment, the cash, evidences of indebtedness, stock, securities, other property, options, warrants and/or other rights (or any portion thereof) to which the Holder would have been entitled by way of such Distribution and subsequent dividends and distributions through the date of exercise as if such Holder (x) had exercised this Warrant immediately prior to such Distribution and (y) had retained the Distribution in respect of the Common Stock and all subsequent dividends and distributions of any nature whatsoever in respect of any stock or securities paid as dividends and distributions and originating directly or indirectly from such Common Stock.

A reclassification of the Common Stock into Capital Stock and shares of any other class of stock shall be deemed a Distribution by the Company to the holders of its Common Stock of such shares of such other class of Capital Stock and, if the outstanding shares of Common Stock shall be changed into a larger or smaller number of shares of Common Stock as a part of such reclassification, such event shall be deemed a Stock Subdivision or Stock Combination, as the case may be, of the outstanding shares of Common Stock within the meaning of Section 5(a)(i) hereof rather than a Distribution.

(iii) Issuance of Common Stock . If at any time or from time to time the Company shall (except as hereinafter provided in this Section 5(a)(iii)) issue or sell any additional shares of Common Stock for a consideration per share less than the Trigger Price Per Share, then, effective on the date specified below, the Exercise Price shall be reduced to the consideration per share received by the Company; provided , however, in no event shall the Exercise Price be adjusted upwards. The date as of which the Trigger Price Per Share shall be computed and the Exercise Price adjusted shall be the earlier of the date on which the Company shall enter into a firm contract or commitment for the issuance of such additional shares of Common Stock or the date of actual issuance of such additional shares of Common Stock.

 

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The provisions of this Section 5(a)(iii) shall not apply to any issuance of additional shares of Common Stock for which an adjustment is otherwise provided under Section 5(a)(i) hereof or any Distribution. No adjustment of the Exercise Price shall be made under this Section 5(a)(iii) upon the issuance of any additional shares of Common Stock which are issued pursuant to (1) the exercise of this Warrant in whole or in part (2) any other Exempt Issuances, (3) the exercise of other subscription or purchase rights or (4) the exercise of any conversion or exchange rights in any Convertible Securities, provided that for purposes of clauses (3) or (4) an adjustment shall previously have been made upon the issuance of such other rights or upon the issuance of such Convertible Securities (or upon the issuance of any warrants or other rights therefor) pursuant to Section 5(a)(iv) hereof.

(iv) Convertible Securities . If at any time or from time to time the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a distribution of, or shall in any manner (whether directly, by assumption in a merger in which the Company is the surviving entity and in which the shareholders of the Company immediately prior to the merger continue to own more than 50% of the Outstanding Common Stock immediately after the merger and for a period of 180 days thereafter, or otherwise) issue or sell Convertible Securities (or any warrants, options or other rights to subscribe for Convertible Securities), whether or not the rights to subscribe, exchange or convert thereunder are immediately exercisable, and the consideration per share for the additional shares of Common Stock which may at any time thereafter be issuable pursuant to the terms of such Convertible Securities shall be less than the Trigger Price Per Share, then the Exercise Price shall be adjusted as provided in Section 5(a)(iii) hereof. For purposes of this Section 5(a)(iv) , the effective date of such adjustment and the date as of which the Trigger Price Per Share shall be computed shall be the earliest of (1) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such Convertible Securities (or any warrants or options or other rights to subscribe for Convertible Securities or Common Stock), (2) the date on which the Company shall enter into a firm contract or commitment for the issuance of such Convertible Securities (or any warrants or options or other rights to subscribe for Convertible Securities), and (3) the date of actual issuance of such Convertible Securities (or any warrants or options or other rights to subscribe for Convertible Securities or Common Stock). Notwithstanding the foregoing, if any proposed issuance of Convertible Securities referred to in clauses (1) and (2) above shall be abandoned by the Company (with the result that no Convertible Securities have been or will be issued in connection with such proposed issuance), then any adjustment of the Exercise Price pursuant to this Section 5(a)(iv) shall be automatically rescinded.

(v) Subsequent Adjustments . If at any time after an adjustment of the Exercise Price has been made pursuant to Section 5(a)(iv) hereof on the basis of the issuance of Convertible Securities (or any warrants or options or other rights to subscribe for Convertible Securities), warrants, options or other rights, or after any new adjustments of the Exercise Price shall have been made pursuant to this Section 5(a)(v) ,

(A) such warrants, options or rights or the right of conversion or exchange in such Convertible Securities shall expire, and all or any portion of such warrants, options or rights, or the right of conversion or exchange in respect of all or any portion of such Convertible Securities, as the case may be, shall not have been exercised prior to such expiration, and/or

(B) in the case of adjustments made pursuant to Section 5(a)(iv) , the consideration per share for which shares of Common Stock are issuable pursuant to such warrants, options or rights per the terms of such Convertible Securities shall

 

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be irrevocably increased solely by virtue of provisions therein contained for an automatic increase in such consideration per share upon the arrival of a specified date or the happening of a specified event,

such previous adjustment shall be rescinded and annulled and the additional shares of Common Stock which were deemed to have been issued by virtue of the computation made in connection with such adjustment shall no longer be deemed to have been issued by virtue of such computation. Simultaneously therewith, a recomputation shall be made of the effect of such warrants, options or rights or Convertible Securities on the determination of the Exercise Price, which shall be made on the basis of:

(1) treating the number of additional shares of Common Stock, if any, actually issued pursuant to the previous exercise of such warrants, options or rights or such right of conversion or exchange as having been issued on the date or dates of such exercise and, in the case of a recomputation of a calculation originally made pursuant to Section 5(a)(iv) , for the consideration actually received and receivable therefor, and

(2) in the case of a recomputation of a calculation originally made pursuant to Section 5(a)(iv) , treating any such warrants, options or rights or any such Convertible Securities which then remain outstanding as having been granted or issued immediately after the time of such irrevocable increase of the consideration per share for which shares of Common Stock are issuable under such warrants, options or rights or Convertible Securities;

and, if and to the extent called for by the foregoing provisions of this Section 5(a)(v) on the basis aforesaid, a new adjustment of the Exercise Price shall be made, such new adjustment shall supersede the previous adjustment so rescinded and annulled.

(vi) Exempt Issuances . The provisions of Sections 5(a)(iii) and 5(a)(iv) shall not apply to any issuance of additional shares of Common Stock or Convertible Securities (A) for which an adjustment is otherwise provided under Section 5(a)(i) hereof, (B) pursuant to the exercise of this Warrant (or any warrant issued as a replacement for this Warrant or upon the transfer or partial exercise hereof) in whole or in part, (C) pursuant to the exercise of any subscription or purchase rights, or the exercise of any conversion or exchange rights in any Convertible Securities, so long as an adjustment shall previously have been made upon the issuance of such rights or upon the issuance of such Convertible Securities (or upon the issuance of any warrants or other rights therefor) pursuant to Section 5(a)(iv ) hereof, (D) pursuant to a bona fide underwritten public offering of Common Stock registered under the Securities Act, (E) upon the exercise of warrants or options to acquire Common Stock issued and outstanding on the date of this Warrant, (F) pursuant to the Company’s 2007 Long Term Incentive Plan and any successor stock option or compensatory securities plan adopted by the Company or any of its Subsidiaries, or (G) issued pursuant to commercial bank financings, equipment financing, leasing arrangements, corporate partnering arrangements, strategic transactions (including joint ventures), acquisitions, mergers or technology transfer or development arrangements, provided any such issuance shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities (the issuances in subsections (A)-(G) collectively, the “ Exempt Issuances ”).

(vii) Miscellaneous . The following provisions shall be applicable to the making of adjustments of the Aggregate Number and the Exercise Price provided above in this Section 5(a) :

(A) The sale or other disposition of any issued shares of Common Stock owned or held by or for the account of the Company or any of its Subsidiaries shall be deemed an issuance thereof for the purposes of this Section 5(a) .

 

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(B) To the extent that any additional shares of Common Stock or any Convertible Securities or any warrants, options or other rights to subscribe for or purchase any additional shares of Common Stock or any Convertible Securities (1) are issued solely for cash consideration, the consideration received by the Company therefor shall be deemed to be the amount of the cash received by the Company therefor, (2) are offered by the Company for subscription, the consideration received by the Company shall be deemed to be the subscription price or (3) are sold to underwriters or dealers for public offering, the net consideration (after giving effect to underwriting discounts) received by the Company shall be deemed to be the consideration received by the Company therefor, in any such case excluding any amounts paid or receivable for accrued interest or accrued dividends. To the extent that such issuance shall be for a consideration other than cash, or partially for cash and partially for other consideration, then, except as otherwise expressly provided herein, the amount of such consideration shall be deemed to be the fair market value of such consideration plus, if applicable, the amount of such cash received at the time of such issuance, determined in the manner set forth in Section 5(d)(ii) . In case any additional shares of Common Stock or any Convertible Securities or any warrants, options or other rights to subscribe for or purchase such additional shares of Common Stock or Convertible Securities shall be issued in connection with any merger in which the Company is the survivor and issues any securities, the amount of consideration therefor shall be deemed to be the fair market value of such additional shares of Common Stock, Convertible Securities, warrants, options or other rights, as the case may be, determined in the manner set forth in Section 5(d)(ii) .

The consideration for any shares of Common Stock issuable pursuant to the terms of any Convertible Securities shall be equal to (x) the consideration received by the Company for issuing any warrants, options or other rights to subscribe for or purchase such Convertible Securities, plus (y) the consideration paid or payable to the Company in respect of the subscription for or purchase of such Convertible Securities, plus (z) the consideration, if any, payable to the Company upon the exercise of the right of conversion or exchange of such Convertible Securities.

In case of the issuance at any time of any additional shares of Common Stock or Convertible Securities in payment or satisfaction of any dividends upon any class of stock other than Common Stock, the Company shall be deemed to have received for such additional shares of Common Stock or Convertible Securities a consideration equal to the amount of such dividend so paid or satisfied. In case of the issuance of any Common Stock or Convertible Securities without consideration, then the Company shall be deemed to have received an aggregate of $0.01 of consideration for all such shares of Common Stock or Convertible Securities deemed to be issued.

(C) The adjustments required by the preceding paragraphs of this Section 5(a) shall be made whenever and as often as any specified event requiring an adjustment shall occur, except that no adjustment of the Aggregate Number that would otherwise be required shall be made (except in the case of a Stock Subdivision or Stock Combination, as provided for in Section 5(a)(i) hereof) unless and until such adjustment either by itself or with other adjustments not previously made adds or subtracts at least one one-tenth of one share to or from the Aggregate Number immediately prior to the making of such

 

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adjustment. Any adjustment representing a change of less than such minimum amount (except as aforesaid) shall be carried forward and made as soon as such adjustment, together with other adjustments required by this Section 5(a) and not previously made, would result in a minimum adjustment. For the purpose of any adjustment, any specified event shall be deemed to have occurred at the close of business on the date of its occurrence.

(D) In computing adjustments under this Section 5(a) , fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share and the Exercise Price shall be proportionately adjusted.

(E) If the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or distribution or subscription or purchase rights and shall, thereafter and before the distribution to shareholders thereof, legally abandon its plan to pay or deliver such dividend, distribution, subscription or purchase rights, then no adjustment shall


 
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