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Exhibit 10.65
DATED: October 22, 2001
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS.
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eUNIVERSE, INC.
COMMON STOCK PURCHASE WARRANT
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This certifies that, for good and valuable consideration, eUniverse,
Inc., a Nevada corporation (the "Company"), grants to ________________, or
registered assigns (the "Warrantholder"), the right to subscribe for and
purchase from the Company _______ validly issued, fully paid and nonassessable
shares (the "Warrant Shares") of the Company's Common Stock, par value $.001 per
share (the "Common Stock"), at the purchase price per share of $1.75 (the
"Exercise Price"), exercisable at any time, and from time to time, on or after
January 9, 2003 and prior to 5:00PM Eastern Standard Time on January 9, 2005
(the "Expiration Date"), all subject to the terms, conditions and adjustments
herein set forth.
Certificate No.:
Number of Shares:
Name of Warrantholder:
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1. Duration and Exercise of Warrant; Limitation on Exercise; Payment of Taxes.
1.1 Duration and Exercise of Warrant. Subject to the terms and conditions
set forth herein, the Warrant may be exercised, in whole or in part, by the
Warrantholder by:
(a) the surrender of this Warrant to the Company, with a duly executed
Exercise Form (substantially in the form attached hereto at Exhibit "A")
specifying the number of Warrant Shares to be purchased, during normal business
hours on any Business Day prior to the Expiration Date; and
(b) the delivery of payment to the Company, for the account of the
Company, by cash or by certified or bank cashier's check, of the applicable
Exercise Price for the number of Warrant Shares specified in the Exercise Form
in lawful money of the United States of America. The Company agrees that such
Warrant Shares shall be deemed to be issued to the Warrantholder as the record
holder of such Warrant Shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for the Warrant Shares
as aforesaid (or as provided in Section 1.2 below).
1.2 Conversion Right.
(a) In lieu of the payment of the Exercise Price, the Warrantholder
shall have the right (but not the obligation) to require the Company to convert
this Warrant, in whole or in part, into shares of Common Stock (the "Conversion
Right") as provided for in this Section 1.2. Upon exercise of the Conversion
Right, the Company shall deliver to the Warrantholder (without payment by the
Warrantholder of any of the Exercise Price; provided, however, that the
Warrantholder shall be required to pay the par value for any shares of Common
Stock so delivered) that number of shares of Common Stock equal to the quotient
obtained by dividing (x) the value of the Warrant at the time the Conversion
Right is exercised (determined by subtracting the aggregate Exercise Price in
effect immediately prior to the exercise of the Conversion Right from the
aggregate Fair Market Value for the shares of Common Stock issuable upon
exercise of the Warrant immediately prior to the exercise of the Conversion
Right) by (y) the Fair Market Value of one share of Common Stock immediately
prior to the exercise of the Conversion Right.
(b) The Conversion Right may be exercised by the Warrantholder on any
Business Day prior to the Expiration Date by delivering the Warrant Certificate,
with a duly executed Exercise Form with the conversion section completed to the
Company, exercising the Conversion Right and specifying the total number of
shares of Common Stock the Warrantholder will be issued pursuant to such
conversion.
(c) Fair Market Value of a share of Common Stock as of a particular
date (the "Determination Date") shall mean:
(i) If the Common Stock is listed on a national securities
exchange, then the Fair Market Value shall be the average of the last ten "daily
sales prices" of the Common Stock on the principal national securities exchange
on which the Common Stock is listed or admitted for trading on the last ten
Business Days prior to the Determination Date, or if not listed or traded on any
such exchange, then the Fair Market Value shall be the average of the last ten
"daily sales prices" of the Common Stock on the National Market (the "National
Market") of the National Association of Securities Dealers Automated Quotations
System ("Nasdaq") on the last ten business days prior to the Determination Date.
The "daily sales price" shall be the closing price of the Common Stock at the
end of each day; or
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(ii) If the Common Stock is not so listed or admitted to unlisted
trading privileges or if no such sale is made on at least nine of such days,
then the Fair Market Value shall be the higher of (x) the Book Value per share,
and (y) the fair value as reasonably determined in good faith by the Company's
Board of Directors or a duly appointed committee of the Board (which
determination shall be reasonably described in the written notice delivered to
the Warrantholder together with the Common Stock certificates).
1.3 Limitations on Exercise. Notwithstanding anything to the contrary
herein, this Warrant may be exercised only upon the delivery to the Company of
any certificates, legal opinions, or other documents reasonably requested by the
Company to satisfy the Company that the proposed exercise of this Warrant may be
effected without registration under the Securities Act. The Warrantholder shall
not be entitled to exercise this Warrant, or any part thereof, unless and until
such certificates, legal opinions or other documents are reasonably acceptable
to the Company.
1.4 Warrant Shares Certificate. A stock certificate or certificates for
the Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder within ten (10) Business Days after receipt of the Exercise Form
and receipt of payment of the purchase price. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the stock
certificate or certificates, deliver to the Warrantholder a new Warrant
evidencing the rights to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant.
1.5 Payment of Taxes. The issuance of certificates for Warrant Shares
shall be made without charge to the Warrantholder for any stock transfer or
other issuance tax in respect thereto; provided, however, that the Warrantholder
shall be required to pay all costs and expenses related to registration of
ownership of the Warrant Shares, all income or other gains tax applicable to the
issuance or sale of the Warrant Shares and any and all taxes which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the then Warrantholder as reflected
upon the books of the Company.
1.6 Transfer of Warrant. Upon surrender of this Warrant to the Company
with a duly executed assignment agreement (an "Assignment") and funds sufficient
to pay any transfer tax, the Company shall, without charge, execute and deliver
a new Warrant of like tenor in the name of the assignee named in such
Assignment, and this Warrant shall promptly be canceled. Each Warrantholder
agrees that prior to any proposed transfer of this Warrant, such Warrantholder
shall give ten (10) days prior written notice to the Company of such
Warrantholder's intention to effect such transfer. Each such notice shall
describe the manner and circumstances of the proposed transfer in sufficient
detail, and, if requested by the Company, shall be accompanied by a written
opinion of legal counsel, which opinion shall be addressed to the Company and be
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of this Warrant may be effected without
registration under the Securities Act. In addition, the Warrantholder and the
transferee shall execute any documentation reasonably required by the Company to
ensure compliance with the Securities Act. The Warrantholder shall not be
entitled to transfer this Warrant, or any part thereof, if such legal opinion is
not acceptable to the Company or if such documentation is not provided. The term
"Warrant" as used in this Agreement shall be deemed to include any Warrants
issued in substitution or exchange for this Warrant.
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2. Restrictions on Transfer; Restrictive Legends.
Except as otherwise permitted by this Section 2, each Warrant shall
(and each Warrant issued upon direct or indirect transfer or in substitution for
any Warrant pursuant to Section 1.6 or Section 4 herein shall) be stamped or
otherwise imprinted with a legend in substantially the following form:
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST
THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR
SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS.
Except as otherwise permitted by this Section 2, each stock certificate
for Warrant Shares issued upon the exercise of any Warrant and each stock
certificate issued upon the direct or indirect transfer of any such Warrant
Shares shall be stamped or otherwise imprinted with a legend in substantially
the following form:
The shares represented by this certificate (the "Shares") have not been
registered under the Securities Act of 1933 (the "Act") or the applicable
securities laws of any other jurisdiction and are "restricted securities"
as that term is defined in Rule 144 under the Act. The shares may not be
offered for sale, sold or otherwise transferred other than (i) pursuant to
an effective registration statement or an exemption therefrom under the Act
and the applicable securities laws of any other jurisdiction, and (ii) upon
receipt by the Corporation of evidence satisfactory to it of compliance
with the Act and the applicable securities laws of any other jurisdiction.
Notwithstanding the foregoing, the Warrantholder may require the
Company to issue a Warrant or a stock certificate for Warrant Shares, in each
case without a legend, if either (i) such Warrant or such Warrant Shares, as the
case may be, have been registered for resale under the Securities Act, or (ii)
the Warrantholder has delivered to the Company an opinion of legal counsel,
which opinion shall be addressed to the Company and be reasonably satisfactory
in form and substance to the Company's counsel, to the effect that such
registration is not required with respect to such Warrant or such Warrant
Shares, as the case may be.
3. Reservation and Registration of Shares.
The Company covenants and agrees as follows:
(a) all Warrant Shares which are issued upon the exercise of this
Warrant will, upon issuance, be validly issued, fully paid, and nonassessable,
not subject to any preemptive rights, and free from all taxes, liens, security
interests, charges, and other encumbrances with respect to the issue thereof,
other than taxes with respect to any transfer occurring contemporaneously with
such issue;
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(b) during the period within which this Warrant may be exercised,
the Company will at all times have authorized and reserved, and keep available
free from preemptive rights, a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant; and
(c) the Company will, from time to time, take all such action as
may be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
4. Loss or Destruction of Warrant.
Subject to the terms and conditions hereof, upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant and, in the case of loss, theft or destruction, of
such bond or indemnification as the Company may reasonably require, and, in the
case of such mutilation, upon surrender and cancellation of this Warrant, the
Company will execute and deliver a new Warrant of like tenor.
5. Ownership of Warrant.
The Company may deem and treat the person in whose name this Warrant is
registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer.
6. Certain Adjustments.
6.1 The number of Warrant Shares purchasable upon the exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
(a) Stock Dividends. If at any time after the date of the issuance of this
Warrant (i) the Company shall fix a record date for the issuance of any stock
dividend payable in shares of Common Stock, or (ii) the number of shares of
Common Stock shall have been increased by a subdivision or split-up of shares of
Common Stock, then, on the record date fixed for the determination of holders of
Common Stock entitled to receive such dividend or immediately after the
effective date of subdivision or split up, as the case may be, the number of
shares to be delivered upon exercise of this Warrant will be increased so that
the Warrantholder will be entitled to receive the number of Shares of Common
Stock that such Warrantholder would have owned immediately following such action
had this Warrant been exercised immediately prior thereto, and the Exercise
Price will be adjusted as provided below in paragraph (g).
(b) Combination of Stock. If the number of shares of Common Stock
outstanding at any time after the date of the issuance of this Warrant shall
have been decreased by a combination of the outstanding shares of Common Stock,
then, immediately after the effective date of such combination, the number of
shares of Common Stock to be delivered upon exercise of this Warrant will be
decreased so that the Warrantholder thereafter will be entitled to receive the
number of shares of Common Stock that such Warrantholder would have owned
immediately following such action had this Warrant been exercised immediately
prior thereto, and the Exercise Price will be adjusted as provided below in
paragraph (g).
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(c) Reorganization, etc. If any capital reorganization of the Company, any
reclassification of the Common Stock, any consolidation of the Company with or
merger of the Company into any other person, or any sale or lease or other
transfer of all or substantially all of the assets of the Company to any other
person, shall be effected in such a way that the holders of Common Stock shall
be entitled to receive stock, other securities or assets (whether such stock,
other securities or assets are issued or distributed by the Company or another
person) with respect to or in exchange for Common Stock, then, upon exercise of
this Warrant, the Warrantholder shall have the right to receive the kind and
amount of stock, other securities or assets receivable upon such reorganization,
reclassification, consolidation, merger or sale, lease or other transfer by a
holder of the number of shares of Common Stock that such Warrantholder would
have been entitled to receive upon exercise of this Warrant had this Warrant
been exercised immediately before such reorganization, reclassification,
consolidation, merger or sale, lease or other transfer, subject to adjustments
that shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 6.
(d) Fractional Shares. No fractional shares of Common Stock or scrip will
be issued to any Warrantholder in connection with the exercise of this Warrant,
no cash will be paid in lieu of fractional shares, and the total number of
shares of Common Stock issued to the Warrantholder shall be rounded to the
nearest whole number.
(e) Exercise Price Adjustment. Whenever the number of Warrant Shares
purchasable upon the exercise of the Warrant is adjusted, as herein provided,
the Exercise Price payable upon the exercise of this Warrant shall be adjusted
by multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Warrant Shares
purchasable upon the exercise of the Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Warrant Shares
purchasable immediately thereafter.
6.2 Notice of Adjustments. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail by first class, postage prepaid, to the
Warrantholder, notice setting forth such adjustment or adjustments.
6.3 Notice of Extraordinary Corporate Events. In case the Company after the
date hereof shall propose to (i) distribute any dividend (whether stock or cash
or otherwise) to the holders of shares of Common Stock or to make any other
distribution to the holders of shares of Common Stock, (ii) offer to the holders
of shares of Common Stock rights to subscribe for or purchase any additional
shares of any class of stock or any other rights or options, or (iii) effect any
reclassification of the Common Stock (other than a reclassification involving
merely the subdivision or combination of outstanding shares of Common Stock),
any sale, transfer or other disposition of all or substantially all of its
property, assets and business, or the liquidation, dissolution or winding up of
the Company, then, in each such case, the Company shall mail to each
Warrantholder notice of such proposed action, which notice shall specify the
date on which (a) the books of the Company shall close, or (b) a record shall be
taken for determining the holders of Common Stock entitled to receive such stock
dividends or other distribution or such rights or options, or (c) such
reclassification, sale, transfer, other disposition, liquidation, dissolution or
winding up shall take place or commence, as the case may be, and the date, if
any, as of which it is expected that holders of record of Common Stock shall be
entitled to receive securities or other property deliverable upon such action.
Such notice shall be mailed in the case of any action covered by clause (i) or
(ii) above at least 10 days prior to the record date for determining holders of
Common Stock for purposes of receiving such payment or offer, or in the case of
any action covered by clause (iii) above at least 30 days prior to the date upon
which such
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action takes place and 20 days prior to any record date to determine holders of
Common Stock entitled to receive such securities or other property.
6.4 Effect of Failure to Notify. Failure to file any certificate or notice
or to mail any notice, or any defect in any certificate or notice, pursuant to
Sections 6.2 and 6.3 shall not affect the legality or validity of the adjustment
to the Exercise Price, the number of shares purchasable upon exercise of this
Warrant, or any transaction giving rise thereto.
7. Amendments. Any provision of this Warrant may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the Holders. Any amendment or waiver effected in accordance with this
Section 7 shall be binding upon each Holder and the Company.
8. Expiration of the Warrant. The obligations of the Company pursuant to this
Warrant shall terminate on the Expiration Date.
9. Definitions.
As used herein, unless the context otherwise requires, the following terms
have the following respective meanings:
Book Value: per share of Common Stock as of any date herein shall mean the
Consolidated Net Worth of the Company and its Subsidiaries as of such date
divided by the number of shares of Common Stock outstanding as of such date.
Business Day: any day other than a Saturday, Sunday or a day on which
national banks are authorized by law to close in the State of Connecticut.
Common Stock: the meaning specified on the cover of this Warrant.
Company: the meaning specified on the cover of this Warrant.
Consolidated Net Worth: as of any date herein specified, the total
consolidated assets of the Company and its Subsidiaries minus the total
consolidated liabilities of the Company and its Subsidiaries (exclusive of any
liabilities associated with the Warrant) as determined from the consolidated
balance sheet of the Company and its Subsidiaries from the most recent fiscal
quarter, which consolidated balance sheet shall be prepared in accordance with
generally accepted accounting principles, shall be in reasonable detail, and
shall be certified as complete and correct by the chief financial or accounting
officer of the Company.
Exercise Form: an Exercise Form in the form annexed hereto as Exhibit A.
Exercise Price: the meaning specified on the cover of this Warrant.
Expiration Date: the meaning specified on the cover of this Warrant.
Holder(s): holder(s) of (i) the Warrant Shares and other securities issued
or issuable upon exercise of the Warrants and (ii) any securities issued or
issuable with respect to any Common Stock or other securities referred to in
subdivision (i) by way of stock dividend or stock split or in connection with a
combination or other reorganization or otherwise.
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Securities Act: the meaning specified on the cover of this Warrant, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act, shall include a reference to the
comparable section, if any, of any such similar Federal statute.
Warrantholder: the meaning specified on the cover of this Warrant.
Warrant Shares: the meaning specified on the cover of this Warrant.
10. Miscellaneous.
10.1 Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the Warrantholder with respect to the Warrants.
10.2 Binding Effects; Benefits. This Warrant shall inure to the benefit of
and shall be binding upon the Company and the Warrantholder and their respective
heirs, legal representatives, successors and assigns. Nothing in this Warrant,
expressed or implied, is intended to or shall confer on any person other than
the Company and the Warrantholder, or their respective heirs, legal
representatives, successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Warrant.
10.3 Section and Other Headings. The section and other headings contained
in this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
10.4 Pronouns. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
10.5 Further Assurances. Each of the Company and the Warrantholder shall do
and perform all such further acts and things and execute and deliver all such
other certificates, instruments and documents as the Company or the
Warrantholder may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this Agreement.
10.6 Notices. All notices and other communications required or permitted to
be given under this Warrant shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by United States mail, postage
prepaid, to the parties hereto at the following addresses or to such other
address as any party hereto shall hereafter specify by notice to the other party
hereto:
(a) if to the Company, addressed to:
eUniverse, Inc.
6300 Wilshire Boulevard, Suite 1700
Los Angeles, CA 90048
Attention: President
(b) if to the Warrantholder, addressed to: ____________________ at the
address of such Warrantholder appearing on the books of the Company.
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Except as otherwise provided herein, all such notices and communications shall
be deemed to have been received on the date of delivery thereof, if delivered
personally, or on the third Business Day after the mailing thereof.
10.7 Separability. Any term or provision of this Warrant which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
10.8 Governing Law. This Warrant shall be deemed to be a contract made
under the laws of Connecticut and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to such
agreements made and to be performed entirely within such State.
10.9 No Rights or Liabilities as Stockholder. Nothing contained in this
Warrant shall be determined as conferring upon the Warrantholder any rights as a
stockholder of the Company or as imposing any liabilities on the Warrantholder
to purchase any securities whether such liabilities are asserted by the Company
or by creditors or stockholders of the Company or otherwise.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
eUNIVERSE, INC.
By:______________________________________
Christopher S. Lipp
Secretary, Vice President and General Counsel
Date: October 22, 2001
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EXHIBIT A
EXERCISE FORM
TO: eUNIVERSE, INC.
The undersigned hereby irrevocably elects to exercise the attached
Warrant Certificate to the extent of _____ shares of the Common Stock of
eUNIVERSE, INC., and hereby makes payment of $_____ in accordance with the
provisions of Section 1 of the Warrant Certificate in payment of the purchase
price thereof.
By:_______________________
Name:
Its:
Date:
Address:
__________________________
__________________________
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