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EX-4.2 - INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES INSTRU - Bright Mountain Media, Inc. | a8k-01092019_exhibit42.htm |
8-K - PRIMARY DOCUMENT - Bright Mountain Media, Inc. | a8k-ppmclosing_01092019.htm |
EX-10.1 - MATERIAL CONTRACTS - Bright Mountain Media, Inc. | a8k-01092019exhibit101.htm |
Exhibit
4.1
FORM OF COMMON STOCK PURCHASE WARRANT
THE SECURITIES EVIDENCED BY THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED
OR OTHERWISE DISPOSED OF WITHOUT (i) EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO, (ii) AN OPINION OF COUNSEL OR OTHER
EVIDENCE, REASONABLY SATISFACTORY TO THE BRIGHT MOUNTAIN MEDIA,
INC., THAT SUCH REGISTRATION IS NOT REQUIRED, OR (iii) RECEIPT OF
NO-ACTION LETTERS FROM THE APPROPRIATE GOVERNMENTAL
AUTHORITIES.
December 28, 2018 No. W-__
BRIGHT MOUNTAIN MEDIA, INC.
COMMON STOCK PURCHASE WARRANT
This
certifies that, for good and valuable consideration, receipt of
which is hereby acknowledged, [●] (“Holder”)
is entitled to purchase, subject to the terms and conditions of
this Warrant, from Bright Mountain Media, Inc., a Florida
corporation (the “Company”),
[●] fully paid and nonassessable shares of the
Company’s common stock, par value $0.01 per share
(“Common
Stock”). Holder shall be entitled to purchase the
shares of Common Stock in accordance with Section 2 at any time
subsequent to the date of this Warrant set forth above and prior to
the Expiration Date (as defined below). The shares of Common Stock
of the Company for which this Warrant is exercisable, as adjusted
from time to time pursuant to the terms hereof, are hereinafter
referred to as the “Shares.”
This Warrant is one of a series of Warrants included in the Units
issued and sold pursuant to the terms and conditions of the
Company’s Confidential Private Offering Memorandum for
Accredited Investors dated December 13, 2018 and the exhibits (the
“Offering
Documents”), as may be supplemented from time to
time.
1. Exercise
Period; Price.
1.1 Exercise
Period. This Warrant shall be immediately exercisable and
the exercise period (“Exercise
Period”) shall terminate at 5:00 p.m. Eastern time on
December 28, 2023 (the “Expiration
Date”).
1.2 Exercise
Price. The initial purchase price for each of the Shares
shall be $0.65 per share. Such price shall be subject to adjustment
pursuant to the terms hereof (such price, as adjusted from time to
time, is hereinafter referred to as the “Exercise
Price”).
2. Exercise
and Payment.
2.1 Exercise.
At any time after the date of this Warrant, this Warrant may be
exercised, in whole or in part, from time to time by the Holder,
during the term hereof, by surrender of this Warrant and the Notice
of Exercise attached hereto as Annex I, duly completed and
executed by the Holder, to the Company at the principal executive
offices of the Company, together with payment in the amount
obtained by multiplying the Exercise Price then in effect by the
number of Shares thereby purchased, as designated in the Notice of
Exercise. Payment may be in cash, wire transfer or by check payable
to the order of the Company in immediately available funds. If not
exercised in full, this Warrant must be exercised for a whole
number of Shares.
2.2 Cashless
Exercise. If: (i) the Company shall have failed to timely
file the Resale Registration Statement (as hereinafter defined); or
(ii) at any time thereafter during the Exercise Period there is not
an effective registration statement registering the Shares, or the
prospectus contained therein is not available for the issuance of
the Shares to the Holder, for a period of at least sixty (60) days
following the delivery of the Suspension Notice (as hereinafter
defined), then this Warrant may also be exercised, in whole or in
part, at such time by means of a “cashless exercise” in
which the Holder shall be entitled to receive a certificate for the
number of Shares equal to the quotient obtained by dividing [(A-B)
(X)] by (A), where:
(A) =
the average of the closing sale prices for the five (5) trading
days immediately prior to (but not including) the exercise
date;
(B) =
the Exercise Price of this Warrant, as adjusted hereunder;
and
(X) =
the number of Shares that would be issuable upon exercise of this
Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless
exercise.
When
used herein, a “Suspension
Notice” shall mean the occurrence of any of the
following events: (i) any request by the Securities and Exchange
Commission (“SEC”)
or any other federal or state governmental authority, during the
period of effectiveness of the Resale Registration Statement, for
amendments or supplements to such registration statement or related
prospectus or for additional information; (ii) the issuance by the
SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of the Resale Registration
Statement or the initiation of any proceedings for that purpose;
(iii) the receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from
qualification of any of the Shares for sale in any jurisdiction
from a state governmental authority or the initiation of any
proceeding for such purpose by a state governmental authority; or
(iv) any event or circumstance which necessitates the making of any
changes to the Resale Registration Statement or related prospectus,
or any document incorporated or deemed to be incorporated therein
by reference, so that, in the case of the Resale Registration
Statement, it will not include any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein not misleading
and, in the case of the prospectus, it will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. The
Company will promptly provide written notice to the Holder of the
occurrence of any Suspension Event. The Company shall thereafter
promptly prepare a supplement or amendment to the Resale
Registration Statement to correct such untrue statement or
omission, and provide a copy of such supplement or amendment to the
Holder. The Company shall also promptly notify the Holder in
writing (x) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and when a registration
statement or any post-effective amendment has become effective and
(y) of the Company’s reasonable determination that a
post-effective amendment to a registration statement would be
appropriate.
For
purposes of Rule 144 promulgated under the Securities Act of 1933,
as amended (the “Act”),
it is intended, understood and acknowledged that the Shares issued
in a cashless exercise transaction shall be deemed to have been
acquired by the Holder, and the holding period for the Shares shall
be deemed to have commenced, on the date this Warrant was
originally issued pursuant to the Offering Documents (provided the
SEC continues to take the position that such treatment is proper at
the time of such exercise).
2.3 Holder's
Exercise Limitation. The Company shall not effect any
exercise of this Warrant, and a Holder shall not have the right to
exercise any portion of this Warrant, pursuant to Section 2.1,
Section 2.2 or otherwise, to the extent that after giving effect to
such issuance after exercise as set forth on the applicable Notice
of Exercise, the Holder (together with the Holder’s
Affiliates (as that term is defined in the Securities Exchange Act
of 1934, as amended (the “Exchange
Act”)), and any other persons acting as a group
together with the Holder or any of the Holder’s Affiliates),
would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing
sentence, the number of shares of Common Stock beneficially owned
by the Holder and its Affiliates shall include the number of shares
of Common Stock issuable upon exercise of this Warrant with respect
to which such determination is being made, but shall exclude the
number of shares of Common Stock which would be issuable upon (i)
exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates, and (ii)
exercise or conversion of the unexercised or nonconverted portion
of any other securities of the Company (including, without
limitation, any other Common Stock Equivalents) subject to a
limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its
Affiliates. Except as set forth in the preceding sentence, for
purposes of this Section 2.3, beneficial ownership shall be
calculated in accordance with Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to
the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for
any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2.3 applies,
the determination of whether this Warrant is exercisable (in
relation to other securities owned by the Holder together with any
Affiliates) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission
of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any
Affiliates) and of which portion of this Warrant is exercisable, in
each case subject to the Beneficial Ownership Limitation, and the
Company shall have no obligation to verify or confirm the accuracy
of such determination and shall have no liability for exercises of
the Warrant that are not in compliance with the Beneficial
Ownership Limitation. In addition, a determination as to any group
status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder and the Company shall have no obligation to
verify or confirm the accuracy of such determination and shall have
no liability for exercises of the Warrant that are not in
compliance with the Beneficial Ownership Limitation. For purposes
of this Section 2.3, in determining the number of outstanding
shares of Common Stock, a Holder may rely on the number of
outstanding shares of Common Stock as reflected in (A) the
Company’s most recent periodic or annual report filed with
the Securities and Exchange Commission, as the case may be, (B) a
more recent public announcement by the Company or (C) a more recent
written notice by the Company or its transfer agent setting forth
the number of shares of Common Stock outstanding. Upon the written
or oral request of a Holder, the Company shall as promptly as
practicable confirm orally and in writing to the Holder the number
of shares of Common Stock then outstanding. In any case, the number
of outstanding shares of Common Stock shall be determined after
giving effect to the conversion or exercise of securities of the
Company, including this Warrant, by the Holder or its Affiliates
since the date as of which such number of outstanding shares of
Common Stock was reported. The “Beneficial
Ownership Limitation” shall be 4.99% of the number of
shares of the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock issuable upon
exercise of this Warrant. The Holder, upon not less than 61
days’ prior notice to the Company, may increase or decrease
the Beneficial Ownership Limitation provisions of this Section 2.3,
provided that the Beneficial Ownership Limitation in no event
exceeds 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of
shares of Common Stock upon exercise of this Warrant held by the
Holder and the provisions of this Section 2.3 shall continue to
apply. Any such increase or decrease will not be effective until
the 61st
day after such notice is delivered to the Company. The provisions
of this paragraph shall be construed and implemented in a manner
otherwise than in strict conformity with the terms of this Section
2.3 to correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended Beneficial Ownership
Limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a
successor holder of this Warrant.
3. Company’s
Right to Call this Warrant. Subject to the terms and
conditions set forth herein, and providing that there is an
effective registration statement registering the Shares issuable
upon exercise of this Warrant, during the Exercise Period, upon
thirty (30) days prior written notice to the Holder (each, a
“Call
Notice”) following the date on which the last sale
price of the Company’s Common Stock equals or exceeds $1.50
per share for ten (10) consecutive trading days, as may be adjusted
for stock splits, stock dividends and similar corporate events, if
the average daily trading volume of the Company’s Common
Stock is not less than thirty thousand (30,000) shares during such
ten (10) consecutive trading day period, the Company shall have the
right to call any or all of the Warrants at a call price of $0.01
per underlying Share (the “Call
Price”). Warrant holders shall have the period from
the date of the Call Notice until 5 p.m., Eastern time, on the
twentieth (20th) day following the Call Notice (the
“Call
Date”) to exercise the Warrant pursuant to the terms
hereof. Any Warrants which have been called but remain unexercised
by the Call Date shall automatically terminate and no longer
entitle the Holder to exercise such Warrant or to receive any
consideration therefor, other than the Call Price. For any Warrants
which are not exercised by the Call Date, the Company shall
promptly as possible following the Call Date pay the Call Price to
the Holder of any Warrants which have been called and not
exercised.
4. Registration
Rights. No later than
one hundred and twenty (120) days (the “Filing
Deadline”) following the Final Closing (as that term
is defined in the Offering Documents), the Company will file a
registration statement with the SEC to register the resale of the
Shares by the Holder so as to permit the public resale thereof (the
“Resale Registration
Statement”). The Company will use its reasonable
efforts to ensure that such Resale Registration Statement is
declared effective by the SEC as soon as practicable. The Company
will keep such Resale Registration Statement effective until the
earlier of the date upon which all Shares may be sold without
registration under Rule 144 or the date which is six months after
the expiration of the Warrants. If the Company should fail to file
the Resale Registration Statement by the Filing Deadline, then
within five (5) business days of the end of month the Company shall
pay the Holder an amount in cash, as partial liquidated damages,
equal to two percent (2%) of the aggregate Purchase Price (as that
term is defined in the Offering Documents) paid by such Holder for
each 30 days, or portion thereof, until the earlier of the date the
deficiency is cured or the expiration of six (6) months from Filing
Deadline (the “Penalty”).
No Holder shall be entitled to a Penalty payment pursuant to this
Section 4 if the
filing of the Resale Registration Statement has been delayed as the
result of the failure by such Holder to promptly provide on request
by the Company the information required under the Subscription
Agreement which is part of the Offering Documents. Notwithstanding
any other provision of this Warrant, if any (i) any
publicly-available written guidance, or rule of general
applicability of the SEC staff, or (ii) oral or written comments,
requirements or requests of the SEC staff to the Company in
connection with the review of the Resale Registration Statement
sets forth a limitation on the number of Shares to be registered in
the Resale Registration Statement (and the Company has used its
best efforts to advocate with the SEC for the registration of all
or the maximum number of Shares), the number of Shares to be
registered on such Resale Registration Statement will be reduced on
a pro rata basis among the purchasers of Warrants issued and sold
pursuant to the Offering Documents based on the total number of
Shares underlying Warrants held by such purchasers.
6. Reservation
of Shares. The
Company hereby agrees that at all times there shall be reserved for
issuance and delivery upon exercise of this Warrant such number of
Shares or other shares of capital stock of the Company from time to
time issuable upon exercise of this Warrant. All such shares shall
be duly authorized, and when issued upon such exercise, shall be
validly issued, fully paid and non-assessable, free and clear of
all liens, security interests, charges and other encumbrances or
restrictions on sale and free and clear of all preemptive
rights.
6. Delivery
of Stock Certificates. Within three (3) trading days after
exercise, in whole or in part, of this Warrant, the Company shall
issue in the name of and deliver to the Holder a certificate or
certificates for the number of fully paid and nonassessable Shares
which the Holder shall have requested in the Notice of Exercise. If
this Warrant is exercised in part, the Company shall deliver to the
Holder a new Warrant (dated the date hereof and of like tenor) for
the unexercised portion of this Warrant at the time of delivery of
such stock certificate or certificates.
7. No
Fractional Shares.
This Warrant must be exercised for a whole number of Shares. No
fractional shares or scrip representing fractional Shares will be
issued upon exercise of this Warrant. Any fractional Share which
otherwise might be issuable on the exercise of this Warrant as a
result of the anti-dilution provisions Section 10 hereof will be
rounded up to the nearest whole Share.
8. Charges,
Taxes and Expenses.
The Company shall pay all transfer taxes or other incidental
charges, if any, in connection with the transfer of the Shares
purchased pursuant to the exercise hereof from the Company to the
Holder.
9. 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, and in case of loss,
theft or destruction, of indemnity or security reasonably
satisfactory to the Company, and upon reimbursement to the Company
of all reasonable expenses incidental thereto, and upon surrender
and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new Warrant of like tenor and dated as of such
cancellation, in lieu of this Warrant.
10. Saturdays,
Sundays, Holidays, Etc. If the last or appointed day for the
taking of any action or the expiration of any right required or
granted herein shall be a Saturday or a Sunday or shall be a legal
holiday, then such action may be taken or such right may be
exercised on the next succeeding weekday which is not a legal
holiday.
11. Adjustment
of Exercise Price and Number of Shares. The Exercise Price and the number of
and kind of securities purchasable upon exercise of this Warrant
shall be subject to adjustment from time to time as
follows:
11.1 Subdivisions,
Combinations and Other Issuances. If the Company shall at
any time after the date hereof but prior to the expiration of this
Warrant subdivide its outstanding securities as to which purchase
rights under this Warrant exist, by split-up or otherwise, or
combine its outstanding securities as to which purchase rights
under this Warrant exist, the number of Shares as to which this
Warrant is exercisable as of the date of such subdivision, split-up
or combination shall forthwith be proportionately increased in the
case of a subdivision, or proportionately decreased in the case of
a combination. Appropriate adjustments shall also be made to the
Exercise Price, but the aggregate purchase price payable for the
total number of Shares purchasable under this Warrant as of such
date shall remain the same.
11.2 Stock
Dividend. If at any time after the date hereof the Company
declares a dividend or other distribution on its Common Stock
payable in Common Stock or other securities or rights convertible
into Common Stock (“Common Stock
Equivalents”) without payment of any consideration by
such holder for the additional shares of Common Stock or the Common
Stock Equivalents (including the additional shares of Common Stock
issuable upon exercise or conversion thereof), then the number of
Shares for which this Warrant may be exercised shall be increased
as of the record date (or the date of such dividend distribution if
no record date is set) for determining which holders of Common
Stock shall be entitled to receive such dividend, in proportion to
the increase in the number of outstanding shares (and shares of
Common Stock issuable upon conversion of all such securities
convertible into Common Stock) of Common Stock as a result of such
dividend, and the Exercise Price shall be adjusted so that the
aggregate amount payable for the purchase of all the Shares
issuable hereunder immediately after the record date (or on the
date of such distribution, if applicable), for such dividend shall
equal the aggregate amount so payable immediately before such
record date (or on the date of such distribution, if
applicable).
11.3. Other
Distributions. If at any time after the date hereof the
Company distributes to holders of its Common Stock, other than as
part of its dissolution or liquidation or the winding up of its
affairs, any shares of its capital stock, any evidence of
indebtedness or any of its assets (other than cash, Common Stock or
Common Stock Equivalents), then the Company may, at its option,
either (i) decrease the Exercise Price of this Warrant by an
appropriate amount based upon the value distributed on each share
of Common Stock as determined in good faith by the Company’s
Board of Directors, or (ii) provide by resolution of the
Company’s Board of Directors that on exercise of this
Warrant, the Holder hereof shall thereafter be entitled to receive,
in addition to the shares of Common Stock otherwise receivable on
exercise hereof, the number of shares or other securities or
property which would have been received had this Warrant at the
time been exercised.
11.4 Effect
of Consolidation, Merger or Sale. In case of any
reclassification, capital reorganization, or change of securities
of the class issuable upon exercise of this Warrant (other than a
change in par value, or from par value to no par value, or from no
par value to par value, or as a result of any subdivision,
combination, stock dividend or other distribution provided for in
Sections 11.1,
11.2 and
11.3 above), or in
case of any consolidation or merger of the Company with or into any
corporation (other than a consolidation or merger with another
corporation in which the Company is the acquiring and the surviving
corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this
Warrant), or in case of any sale of all or substantially all of the
assets of the Company, the Company, or such successor or purchasing
corporation, as the case may be, shall duly execute and deliver to
the holder of this Warrant a new Warrant (in form and substance
satisfactory to the holder of this Warrant), or the Company shall
make appropriate provision without the issuance of a new Warrant,
so that the holder of this Warrant shall have the right to receive,
at a total purchase price not to exceed that payable upon the
exercise of the unexercised portion of this Warrant, and in lieu of
the Shares theretofore issuable upon exercise of this Warrant, the
kind and amount of shares of stock, other securities, money and
property receivable upon such reclassification, capital
reorganization, change, merger or sale by a holder of the number of
Shares then purchasable under this Warrant. In any such case,
appropriate provisions shall be made with respect to the rights and
interest of Holder so that the provisions hereof shall thereafter
be applicable to any shares of stock or other securities and
property deliverable upon exercise hereof, or to any new Warrant
delivered pursuant to this Section 11.4, and appropriate
adjustments shall be made to the Exercise Price per share payable
hereunder, provided, that the aggregate Exercise Price shall remain
the same. The provisions of this Section 11.4 shall similarly
apply to successive reclassifications, capital reorganizations,
changes, mergers and transfers.
12. Notice
of Adjustments; Notices. Whenever the Exercise Price or number
of Shares purchasable hereunder shall be adjusted pursuant to
Section 11 hereof,
the Company shall execute and deliver to the Holder a certificate
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 Exercise Price and number of and
kind of securities purchasable hereunder after giving effect to
such adjustment, and shall cause a copy of such certificate to be
mailed (by first class mail, postage prepaid) to the
Holder.
13. Rights
As Shareholder; Notice to Holders. Nothing contained in this Warrant
shall be construed as conferring upon the Holder or his or its
transferees the right to vote or to receive dividends or to consent
or to receive notice as a shareholder in respect of any meeting of
shareholders for the election of directors of the Company or of any
other matter, or any rights whatsoever as shareholders of the
Company. The Company shall give notice to the Holder by registered
mail if at any time prior to the expiration or exercise in full of
the Warrants, any of the following events shall occur:
(i) a
dissolution, liquidation or winding up of the Company shall be
proposed;
(ii) a
capital reorganization or reclassification of the Common Stock
(other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of any
subdivision, combination, stock dividend or other distribution) or
any consolidation or merger of the Company with or into another
corporation (other than a consolidation or merger with another
corporation in which the Company is the acquiring and the surviving
corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this
Warrant), or in case of any sale of all or substantially all of the
assets of the Company; or
(iii) a
taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who
are entitled to receive any dividend (other than a cash dividend)
for other distribution, any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other
rights.
Such
giving of notice shall be simultaneous with (or in any event, no
later than) the giving of notice to holders of Common Stock. Such
notice shall specify the record date or the date of closing the
stock transfer books, as the case may be. Failure to provide such
notice shall not affect the validity of any action contemplated in
this Section
13.
14. Restricted
Securities. The
Holder understands that this Warrant and the Shares purchasable
hereunder constitute “restricted securities” under the
federal securities laws inasmuch as they are, or will be, acquired
from the Company in transactions not involving a public offering
and accordingly may not, under such laws and applicable
regulations, be resold or transferred without registration under
the Act, or an applicable exemption from such registration. The
Holder further acknowledges that a securities legend to the
foregoing effect shall be placed on any Shares issued to the Holder
upon exercise of this Warrant.
15. Disposition
of Shares; Transferability.
15.1 Transfer.
This Warrant shall be transferable only on the books of the
Company, upon delivery thereof duly endorsed by the Holder or by
its duly authorized attorney or representative, accompanied by
proper evidence of succession, assignment or authority to transfer.
Upon any registration of transfer, the Company shall execute and
deliver new Warrants to the person entitled thereto.
15.2 Rights,
Preferences and Privileges of Common Stock. The powers,
preferences, rights, restrictions and other matters relating to the
shares of Common Stock will be as determined in the Company’s
Amended and Restated Articles of Incorporation, as amended, as then
in effect.
16. Miscellaneous.
16.1 Binding
Effect. This Warrant and the various rights and obligations
arising hereunder shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and
assigns.
16.2 Entire
Agreement. This Warrant and the Offering Documents
constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior and
contemporaneous agreements, whether oral or written, between the
parties hereto with respect to the subject matter
hereof.
16.3 Amendment
and Waiver. Any term of this Warrant may be amended and the
observance of any term hereof may be waived (either generally or in
a particular instance and either retroactively or prospectively),
with the written consent of the Company and the
Holder.
16.4 Governing
Law. This Agreement shall be governed by and construed under
the laws of the State of Florida without reference to the conflicts
of law principles thereof. The exclusive jurisdiction for any legal
suit, action or proceeding arising out of or related to this
Warrant shall be the United States District Court for the Southern
District of Florida.
16.5 Headings.
The headings in this Agreement are for convenience only and shall
not alter or otherwise affect the meaning hereof.
16.6 Severability.
If one or more provisions of this Warrant are held to be
unenforceable under applicable law, such provision shall be
excluded from this Warrant and the balance of the Warrant shall be
interpreted as if such provision were so excluded and the balance
shall be enforceable in accordance with its terms.
16.7 Notices.
Unless otherwise provided, any notice required or permitted under
this Warrant shall be given in the same manner as provided in the
Agreement.
IN WITNESS WHEREOF, the parties hereto
have executed and delivered this Warrant as of the date appearing
on the first page of this Warrant.
THE
COMPANY:
BRIGHT
MOUNTAIN MEDIA, INC.
By:
_______________________________
W. Kip
Speyer, Chief Executive Officer
ANNEX I
NOTICE OF EXERCISE
To:
Bright
Mountain Media, Inc.
1.
The undersigned
Holder hereby elects to purchase _____________ shares of common
stock, $0.01 par value per share (the “Shares”)
of Bright Mountain Media, Inc., a Florida corporation (the
“Company”),
pursuant to the terms of the attached Warrant. The Holder shall
make payment of the Exercise Price by delivering the sum of
$____________, in lawful money of the United States, to the Company
in accordance with the terms of the Warrant.
2.
Please issue and
deliver certificates representing the Warrant Shares purchased
hereunder to Holder: ,Address: in the following
denominations: ____________________________.
3.
Please issue a new
Warrant for the unexercised portion of the attached Warrant, if
any, in the name of the undersigned.
Holder:
Dated:
By:
Its:
Address:
4.
The undersigned is
an “accredited investor” as defined in Regulation D
promulgated under the Securities Act of 1933, as
amended.
SIGNATURE OF HOLDER
Name of Investing
Entity:
Signature of Authorized Signatory of Investing
Entity:
Name of Authorized
Signatory:
Title of Authorized
Signatory:
Date: