Attached files
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8-K - PRIMARY DOCUMENT - Bright Mountain Media, Inc. | a8k-ppmclosing_01092019.htm |
EX-10.1 - MATERIAL CONTRACTS - Bright Mountain Media, Inc. | a8k-01092019exhibit101.htm |
EX-4.1 - INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES INSTRU - Bright Mountain Media, Inc. | a8k-01092019_exhibit41.htm |
Exhibit
4.2
FORM OF PLACEMENT AGENT WARRANT
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS
DOCUMENT NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
CONVERTIBLE 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
AND REASONABLY APPROVED BY 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.
---------------------------------------
BRIGHT MOUNTAIN MEDIA, INC.
COMMON STOCK PURCHASE WARRANT
Dated:
December 28, 2018
Number of shares:
283,625
Holder:
Spartan Capital
Securities, LLC
Exercise
Price per Share: $0.65
Expiration
Date: December 28, 2023 (the "Expiration Date")
FOR VALUE RECEIVED, Bright Mountain Media, Inc., a
corporation incorporated under the laws of the State of Florida
(the “Company”), hereby
certifies that Spartan Capital Securities, LLC, or its assigns (the
“Warrant
Holder”), is entitled, subject to the terms set forth
below, to purchase from the Company TWO HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED
TWENTY FIVE (283,625) shares (the “Warrant Shares”) of
common stock, $0.01 par value (the “Common Stock”), of the
Company at an exercise price of Sixty-Five Cents (US$0.65) per
share (as adjusted from time to time as provided in Section 6, per
Warrant Share (the “Exercise Price”), at any
time and from time to time from and after the date thereof and
through and including 5:00 p.m. New York City time on the
Expiration Date. This Warrant is being issued as compensation to
the Warrant Holder under the terms of the Confidential Private
Offering Memorandum for Accredited Investors Only dated December
13, 2018 (the "Memorandum") and the Placement
Agent Agreement dated December 3, 2018 by and between the Company
and the Warrant Holder. All terms not otherwise defined herein
shall have the same meaning as in the Memorandum.
This
Warrant is subject to the following terms and
conditions:
1. Registration of Warrant. 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 Warrant Holder hereof from time to time. The
Company may deem and treat the registered Warrant Holder of this
Warrant as the absolute owner hereof for the purpose of any
exercise hereof or any distribution to the Warrant Holder, and for
all other purposes, and the Company shall not be affected by notice
to the contrary.
2. Investment Representation. The
Warrant Holder by accepting this Warrant represents that the
Warrant Holder is acquiring this Warrant for its own account for
investment purposes and not with the view to any offering or
distribution and that the Warrant Holder will not sell or otherwise
dispose of this Warrant or the underlying Warrant Shares in
violation of applicable securities laws. The Warrant Holder
acknowledges that the certificates representing any Warrant Shares
will bear a legend indicating that they have not been registered
under the United States Securities Act of 1933, as amended (the
“1933
Act”) and may not be sold by the Warrant Holder except
pursuant to an effective registration statement or pursuant to an
exemption from registration requirements of the 1933 Act and in
accordance with federal and state securities laws.
3. Validity of Warrant and Issue of
Shares. The Company represents and warrants that this
Warrant has been duly authorized and validly issued and warrants
and agrees that all of Common Stock that may be issued upon the
exercise of the rights represented by this Warrant will, when
issued upon such exercise, be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof. The Company further
warrants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Company will at
all times have authorized and reserved a sufficient number of
Common Stock to provide for the exercise of the rights represented
by this Warrant.
4.
Registration of Transfers and Exchange
of Warrants.
a. Subject
to compliance with the legend set forth on the face of this
Warrant, the Company shall register the transfer of any portion of
this Warrant in the Warrant Register, upon surrender of this
Warrant with the Form of Assignment attached hereto duly completed
and signed, to the Company at the office specified in or pursuant
to Section 8. Upon any such registration or transfer, a new warrant
to purchase Common Stock, in substantially the form of this Warrant
(any such new warrant, a “New Warrant”), evidencing
the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the
transferring Warrant Holder. The acceptance of the New Warrant by
the transferee thereof shall be deemed the acceptance of such
transferee of all of the rights and obligations of a Warrant Holder
of a Warrant.
b. This
Warrant is exchangeable, upon the surrender hereof by the Warrant
Holder to the office of the Company specified in or pursuant to
Section 8 for one or more New Warrants, evidencing in the aggregate
the right to purchase the number of Warrant Shares which may then
be purchased hereunder. Any such New Warrant will be dated the date
of such exchange.
5.
Exercise of
Warrants.
a. Exercise
of this Warrant shall be made upon surrender of this Warrant with
the Form of Election to Purchase attached hereto duly completed and
signed to the Company, at its address set forth in Section 8.
Payment upon exercise may be made at the written option of the
Warrant Holder in cash, wire transfer or by certified or official
bank check payable to the order of the Company equal to the
applicable aggregate purchase price for the number of Warrant
Shares specified in such form (as such exercise number shall be
adjusted to reflect any adjustment in the total number of Warrant
Shares issuable to the Warrant Holder per the terms of this
Warrant) and the Warrant Holder shall thereupon be entitled to
receive the number of duly authorized, validly issued, fully-paid
and non-assessable Warrant Shares determined as provided herein.
The Company shall promptly (but in no event later than five (5)
business days after the Date of Exercise (as defined herein) issue
or cause to be issued and cause to be delivered to or upon the
written order of the Warrant Holder and in such name or names as
the Warrant Holder may designate (subject to the restrictions on
transfer described in the legend set forth on the face of this
Warrant), a certificate for the Warrant Shares issuable upon such
exercise, with such restrictive legend as required by the 1933 Act,
as applicable. Any person so designated by the Warrant Holder to
receive Warrant Shares shall be deemed to have become holder of
record of such Warrant Shares as of the Date of Exercise of this
Warrant.
b. The
Warrant Holder may alternatively exercise this Warrant, in whole or
in part, according to the terms hereof by surrendering this Warrant
to the Company, at its address set forth in Section 8, with the
Notice of Cashless Exercise attached hereto having then been duly
executed and delivered by the Holder, in which event the Company
shall issue to the Warrant Holder the 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 Warrant
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
(as defined below) as of the Date of Exercise
B=
Exercise Price (as
adjusted to the date of such calculation)
For
purposes of this Section 5.b, the per share “Fair Market Value” of the
Warrant Shares shall mean:
i.
If the
Company’s Common Stock is publicly traded, the per share fair
market value of the Warrant Shares shall be the average of the
closing prices of the Common Stock as quoted on the principal
quotation market for the Common Stock, or the principal exchange on
which the Common Stock is listed, in each case for the five trading
days ending one trading day prior to the date of determination of
Fair Market Value.
ii.
If the
Company’s Common Stock is not so publicly traded, the per
share fair market value of the Warrant Shares shall be such fair
market value as is determined in good faith by the Board of
Directors of the Company after taking into consideration factors it
deems appropriate, including, without limitation, recent sale and
offer prices of the capital stock of the Company in private
transactions negotiated at arm’s length.
For
purposes of this Warrant, “Date of Exercise” means
the date on which the Company shall have received (i) this Warrant
(or any New Warrant, as applicable), with the Form of Election to
Purchase or Notice of Cashless Exercise attached hereto (or
attached to such New Warrant) appropriately completed and duly
signed, and (ii) payment of the applicable Exercise Price for the
number of Warrant Shares so indicated by the Warrant Holder to be
purchased.
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 Warrant Holder,
and the holding period for the Warrant Shares shall be deemed to
have commenced, on the date this Warrant was originally
issued.
c. This
Warrant shall be exercisable at any time and from time to time for
such number of Warrant Shares as is indicated in the attached Form
of Election to Purchase. If less than all of the Warrant Shares
which may be purchased under this Warrant are exercised at any
time, the Company shall issue or cause to be issued, at its
expense, a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
6. Adjustment of Exercise Price and
Number of Shares. The character of the shares of stock or
other securities at the time issuable upon exercise of this Warrant
and the Exercise Price therefor, are subject to adjustment upon the
occurrence of the following events:
a. Adjustment
for Stock Splits, Stock Dividends, Recapitalizations, Etc.
The Exercise Price of this Warrant and the number of shares of
Common Stock or other securities at the time issuable upon exercise
of this Warrant shall be appropriately adjusted to reflect any
stock dividend, stock split, combination of shares,
reclassification, recapitalization or other similar event affecting
the number of outstanding shares of stock or
securities.
b. Adjustment
for Reorganization, Consolidation, Merger, Etc. In case of
any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate
reorganization, in which the Company shall not be the continuing or
surviving entity of such consolidation, merger or reorganization
(any such transaction being hereinafter referred to as a
“Reorganization”), then,
in each case, the holder of this Warrant, on exercise hereof at any
time after the consummation or effective date of such
Reorganization (the “Effective Date”), shall
receive, in lieu of the shares of stock or other securities at any
time issuable upon the exercise of the Warrant issuable on such
exercise prior to the Effective Date, the stock and other
securities and property (including cash) to which such holder would
have been entitled upon the Effective Date if such holder had
exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
c. Certificate
as to Adjustments. In case of any adjustment or readjustment
in the price or kind of securities issuable on the exercise of this
Warrant, the Company will promptly give written notice thereof to
the holder of this Warrant in the form of a certificate, certified
and confirmed by the Board of Directors of the Company, setting
forth such adjustment or readjustment and showing in reasonable
detail the facts upon which such adjustment or readjustment is
based.
7. Fractional Shares. The Company
shall not be required to issue or cause to be issued fractional
Warrant Shares on the exercise of this Warrant. The number of full
Warrant Shares that shall be issuable upon the exercise of this
Warrant shall be computed on the basis of the aggregate number of
Warrants Shares purchasable on exercise of this Warrant so
presented. If any fraction of a Warrant Share would, except for the
provisions of this Section 7, be issuable on the exercise of this
Warrant, the Company shall, at its option, (i) pay an amount in
cash equal to the Exercise Price multiplied by such fraction or
(ii) round the number of Warrant Shares issuable, up to the next
whole number.
8. Notice. All notices and other
communications hereunder shall be in writing and shall be deemed to
have been given (i) on the date they are delivered if delivered in
person; (ii) on the date initially received if delivered by
facsimile transmission followed by registered or certified mail
confirmation; (iii) on the date delivered by an overnight courier
service; or (iv) on the third business day after it is mailed by
registered or certified mail, return receipt requested with postage
and other fees prepaid as follows:
If to
the Company:
Bright
Mountain Media, Inc.
6400
Congress Avenue, Suite 2050
Boca
Raton, Florida 33487
Attn:
W. Kip Speyer
If to
the Warrant Holder:
Spartan
Capital Securities, LLC
45
Broadway
New
York, New York 10006
Attention: John
Lowry
9.
Registration Rights.
a. [intentionally
omitted]
b. [intentionally
omitted]
c. Piggyback Rights. If the
Company at any time proposes to register any of its securities
under the 1933 Act for sale, whether for its own account or for the
account of other security holders or both (except with respect to
(x) registration statements on Form S-8 or Form S-4 or their then
equivalent forms, or another form not available for registering the
Registrable Securities for sale to the public, (y) a registration
relating solely to employee benefit plans, or (z) a registration
relating solely to a Rule 145 transaction), it will each such time:
(i) promptly give to the Warrant Holder written notice thereof
(which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and (ii)
include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting
involved therein, all of the Warrant Shares (the "Registrable Securities")
specified in a written request made by the Warrant Holder within
fifteen (15) days after receipt of the written notice from the
Company described in clause (i) above, except that the number of
Registrable Securities included in such registration on behalf of
the Warrant Holder, if any, shall be subject to the provisions set
forth in Section 9.e below. Such written request may specify all or
a part of the Warrant Holder's Registrable Securities.
d. Underwritten Offering. If the
registration of which the Company gives notice is for an
underwritten offering of Common Stock, the Company shall so advise
the Warrant Holder as a part of the written notice given pursuant
to Section 9.c. In such event, the right of the Warrant Holder to
registration pursuant to Section 9.c above shall be conditioned
upon the Warrant Holder’s participation in such underwriting.
The Warrant Holder shall, if it proposes to distribute Registrable
Securities through such underwriting (together with the Company and
other parties distributing securities through such underwriting),
enter into an underwriting agreement in customary form with the
managing underwriter(s) selected by the Company.
e. Priority in Piggyback
Registrations. If (i) a registration pursuant to Section 9.c
involves an underwritten offering of the securities so being
registered, whether or not for sale for the account of the Company,
and (ii) the managing underwriters of such underwritten offering
shall advise the Company in writing that, in its opinion, the
number or amount of securities (including Registrable Securities)
proposed to be sold in (or during the time of) such offering would
adversely affect the success of such offering, then the Company
shall include in such registration only such number or amount of
securities (including Registrable Securities) recommended by such
managing underwriter, selected in the following order or priority:
(i) first, all of the securities that the Company proposes to sell
for its own account, if any, and (ii) second, the Registrable
Securities requested to be included in such registration by the
Warrant Holders and the Private Placement Holders pro rata based
upon the number of shares for which registration has been
requested; provided,
however, that if any equity securities are proposed to be
included in such offering for the account of any person or persons
other than the Company, the Warrant Holder or the holders of
Warrants issued and sold pursuant to the Memorandum (the
"Private Placement
Holders") pursuant to rights of piggyback registration
similar to those provided in Section 9.c, all shares proposed to be
included therein by the Company, the Warrant Holder or the Private
Placement Holders shall be included prior to the inclusion of any
other registrable equity securities that have requested to be
included.
f. Expenses. With respect to any
registration under this Section 9, the Company shall bear the
following fees, costs and expenses: all registration and filing
fees, printing expenses, fees and disbursements of counsel for the
underwriter of such securities (if the Company or the Warrant
Holder is required to bear such fees and disbursements), all
internal Company expenses, all Company legal and accounting fees
and disbursements and other expenses of complying with state
securities or blue sky laws of any jurisdictions in which the
Registrable Securities to be offered are to be registered or
qualified, and any other Company costs, if any, arising out of such
public offering. Fees and disbursements of counsel for the Warrant
Holder, underwriting discounts and commissions and transfer taxes
relating to the Registrable Securities included in the offering,
and any other expenses not expressly included above, shall be borne
by the Warrant Holder.
g. Other
Obligations of the Company.
i.
The Company shall
use its best efforts to cause the Registrable Securities registered
under this Section 9 to be registered or qualified for sale under
the securities or “blue sky” laws of such jurisdictions
as the Warrant Holder may reasonably request; provided, however, that the
Company shall not be required to qualify to do business in any
state by reason of this paragraph in which it is not otherwise
required to qualify to do business.
ii.
The Company shall
keep effective the registration or qualification contemplated by
this Section 9 and shall from time to time amend or supplement each
applicable registration statement, preliminary prospectus, final
prospectus, application, document and communication for such period
of time as shall be required to permit the Warrant Holder to
complete the offer and sale of the Registrable Securities covered
thereby.
iii.
In connection with
a registration pursuant to the provisions of this Section 9, the
Company shall furnish to the Warrant Holder therein such number of
copies of the registration statement and of each amendment and
supplement thereto (in each case, including all exhibits), such
reasonable number of copies of each prospectus contained in such
registration statement and each supplement or amendment thereto
(including each preliminary prospectus), all of which shall conform
to the requirements of the 1933 Act, and the rules and regulations
thereunder, and such other documents, as the Warrant Holder may
reasonably request in order to facilitate the disposition of the
Registrable Securities included in such registration.
h. Indemnification.
i.
The Company agrees
to indemnify and hold harmless the Warrant Holder, and its
directors, officers, members, managers and employees and Warrant
Holder’s legal counsel, each person, if any, who controls the
Warrant Holder within the meaning of the 1933 Act or the 1934 Act,
and each and all of them, from and against any and all losses,
claims, damages, liabilities or actions, joint or several
(including any investigation, negotiation, legal and other expenses
incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted), to which
they or any of them may become subject under the 1933 Act, or other
federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of, or are based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in such
registration statement or prospectus or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading,
except to the extent any losses, claims, damages, liabilities or
actions arising out of any such statement or omission relating to
any information furnished in writing by or on behalf of the Warrant
Holder to the Company specifically for use in connection with the
preparation of such registration statement, or the omission of any
statement or information as a result of the failure of the Warrant
Holder to provide any such information, and (ii) the breach of any
representation, warranty or covenant of the Company contained in
this Warrant.
ii.
The Warrant Holder
agrees to indemnify and hold harmless each of the Company, and each
of its directors and officers employees and legal counsel, and each
person, if any, who controls the Company, within the meaning of the
1933 Act or the 1934 Act, and each and all of them, from and
against any and all losses, claims, damages, liabilities or
actions, joint or several (including any investigation,
negotiation, legal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they or any of them may
become subject under the 1933 Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or actions arise out of
or are based upon (i) any statement in such registration statement
or prospectus, in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Warrant
Holder specifically for use in connection with the preparation of
such registration statement and (ii) the breach of any
representation, warranty or covenant of the Warrant Holder
contained in this Warrant. In no event shall the indemnification
and contribution obligations of Warrant Holder exceed the proceeds
that the Warrant Holder has actually received upon the sale,
transfer or other distribution of the shares of Common Stock
received upon the exercise of this Warrant.
iii.
Any party which
proposes to assert the right to be indemnified under this Section
9.h will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party under this
Section 9.h, notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a copy
of all papers served, but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not
relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 9.h unless it shall
adversely affect the indemnifying party in any material respect. In
case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled
to participate in and, to the extent that is shall wish, jointly
with any indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, other than
reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its own counsel in
any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless:
iv.
the employment of
counsel by such indemnified party has been authorized by the
indemnifying parties;
v.
counsel for the
indemnified party shall have reasonably concluded that there may be
a conflict of interest between the indemnifying parties and the
indemnified party in the conduct of the defense of such action (in
which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified
party); or
vi.
the indemnifying
parties shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying
parties. An indemnifying party shall not be liable for any
settlement of any action or claims effected without its written
consent.
vii.
If the
indemnification provided for in this Section 9.h is unavailable to
any indemnified party in respect to any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party, will
contribute to the amount paid or payable by such indemnified party,
as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand, and the
Warrant Holder on the other hand, from the sale, transfer of other
distribution of the shares of Common Stock issuable upon the
exercise of this Warrant, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand, and of the Warrant Holder on
the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or
expenses as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand, and
the Warrant Holder on the other hand, shall be deemed to be in the
same proportion as the total proceeds from the sale, transfer or
other distribution of the shares of Common Stock issuable upon the
exercise of this Warrant (net of sales commissions, but before
deducting expenses) received by the Warrant Holder. The relative
fault of the Company on the one hand, and the Warrant Holder on the
other hand, will be determined with reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the Company, and their relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount payable by a party
as a result of the losses, claims, damages, liabilities or expenses
referred to above will be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
viii.
The Company and the
Warrant Holder agree that it would not be just and equitable if
contribution pursuant to this Section 9.h were determined by pro
rata allocation or by any other method of allocation which does not
take into account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of
this Section 9.h, no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
10.
Miscellaneous.
a. This
Warrant shall be binding on and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. This
Warrant may be amended only in writing and signed by the Company
and the Warrant Holder.
b. Nothing
in this Warrant shall be construed to give to any person or
corporation other than the Company and the Warrant Holder any legal
or equitable right, remedy or cause of action under this Warrant;
this Warrant shall be for the sole and exclusive benefit of the
Company and the Warrant Holder.
c. This
Warrant shall be governed by, construed and enforced in accordance
with the internal laws of the State of Florida without regard to
the principles of conflicts of law 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.
d. The
headings herein are for convenience only, do not constitute a part
of this Warrant and shall not be deemed to limit or affect any of
the provisions hereof.
e. In
case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this
Warrant shall not in any way be affected or impaired thereby and
the parties will attempt in good faith to agree upon a valid and
enforceable provision which shall be a commercially reasonably
substitute therefore, and upon so agreeing, shall incorporate such
substitute provision in this Warrant.
f.
The Warrant Holder shall not, by virtue hereof, be entitled to any
voting or other rights of a shareholder of the Company, either at
law or equity, and the rights of the Warrant Holder are limited to
those expressed in this Warrant.
IN WITNESS WHEREOF, the Company and the
Warrant Holder have caused this Warrant to be duly executed by the
authorized officer as of the date first above stated.
BRIGHT
MOUNTAIN MEDIA, INC.
By:
Name:
W. Kip Speyer
Title:
Chief Executive Officer
SPARTAN
CAPITAL SECURITIES, LLC
By:
Name:
John Lowry
Title:
Chief Executive Officer
FORM OF ELECTION TO
PURCHASE
(To be
executed by the registered holder if such holder desires to
exercise the within Warrants)
Bright
Mountain Media, Inc.
6400
Congress Avenue, Suite 2050
Boca
Raton, Florida 33487
Attn:
W. Kip Speyer
The
undersigned hereby (1) irrevocably elects to exercise his or its
rights to purchase ____________ shares of Common Stock covered by
the within Warrants, (2) makes payment in full of the Purchase
Price by enclosure of cash, wire transfer, certified check or bank
check, (3) requests that certificates for such shares of Common
Stock be issued in the name of:
Please
print name, address and Social Security or Tax Identification
Number:
________________________________________________
________________________________________________
________________________________________________
________________________________________________
and (4)
if said number of shares of Common Stock shall not be all the
shares evidenced by the within Warrants, requests that a new
warrant certificate for the balance of the shares covered by the
within Warrants be registered in the name of, and delivered
to:
Please
print name and address:
________________________________________________
________________________________________________
________________________________________________
Dated:
_____________________
_________________________________
WARRANT
HOLDER
By:
_____________________________
Name:
Title:
NOTICE OF CASHLESS EXERCISE
(To be
executed upon exercise of warrant pursuant to Section
5.b
The
undersigned, the Holder of the attached Warrant, hereby irrevocably
elects to exchange its Warrant for _______ shares of Warrant Stock
pursuant to the cashless exercise provisions of the within Warrant,
as provided for in Section 5.b of such Warrant, and requests that a
certificate or certificates for such shares of Warrant Stock (and
any warrants or other property issuable upon exercise) be issued in
the name of and delivered to ___________________, whose address is
_________________________________ (social security or taxpayer
identification number _______________) and, if such shares shall
not include all of the shares issuable under such warrant, that a
new warrant of like tenor and date for the balance of the shares
issuable thereunder be delivered to the undersigned.
HOLDER:
_______________________________
Signature
________________________________
Signature, if
jointly held
_________________________________
Date
FORM OF ASSIGNMENT
FOR
VALUE RECEIVED,
hereby
sells, assigns and transfers unto
Name:
(Please
typewrite or print in block letters)
Social
Security or Taxpayer Identification Number :
the
right to purchase Common Stock of Bright Mountain Media Inc., a
Florida corporation, 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.
DATED:
__________________
Signature
Signature, if
jointly held
Witness:
____________________________