Exhibit 10.16
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON JUNE
10, 1999, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE (AND THE SHARES ISSUABLE
UPON EXERCISE OF SUCH SECURITIES) ARE SUBJECT TO THE WARRANT AGREEMENT REFERRED
TO BELOW AND THE STOCKHOLDERS AGREEMENT, DATED AS OF JUNE 10, 1999 BY AND AMONG
THE COMPANY AND THE STOCKHOLDERS PARTY THERETO FROM TIME TO TIME. THE TRANSFER
OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN SUCH WARRANT
AGREEMENT AND SUCH STOCKHOLDERS AGREEMENT AND THE COMPANY RESERVES THE RIGHT TO
REFUSE THE TRANSFER OF THIS CERTIFICATE UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH AGREEMENTS WILL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST.
Warrants to Purchase by the Holder
Common Stock of
Thane International, Inc. (the "Company")
No. WB-1 30,000 Warrants
June 10, 1999
WARRANT CERTIFICATE
This certificate (as amended, modified and supplemented from time to
time, this "Warrant Certificate") is issued pursuant to a Warrant Agreement (as
amended, modified and supplemented from time to time, the "Warrant Agreement"),
dated as of June 10, 1999, by and between the Company and Paribas Capital
Funding LLC (the "Purchaser"). Unless otherwise defined herein, all capitalized
terms used herein shall have the meaning provided in the Warrant Agreement. This
Warrant Certificate certifies that the Holder or its registered assigns is the
registered owner of 30,000 Warrants, each Warrant entitling such owner to
purchase, subject to the terms and conditions hereof and of the Warrant
Agreement, initially, one Class B Share of the Company at the price of $.0001
per Class B Share (as adjusted from time to time, the "Exercise Price"). The
number of Warrant Shares issuable upon exercise of the Warrants and the Exercise
Price are subject to adjustment upon the occurrence of certain events, as set
forth in the Warrant Agreement. As further set forth in, and subject to, the
Warrant Agreement, the expiration date of this Warrant Certificate is 5:00 p.m.
Eastern time on June 10, 2009.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants, and are issued or to be issued pursuant to the
Warrant Agreement which is hereby incorporated by reference and made a part of
this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the Holders of the Warrants. A copy of the Warrant Agreement may be
obtained by the Holder hereof upon written request to the Company.
The Holder of Warrants evidenced by this Warrant Certificate may
exercise such Warrants under and pursuant to the terms and conditions of the
Warrant Agreement by surrendering this Warrant Certificate, with the purchase
form attached hereto as Annex A (and by this reference made a part hereof)
property completed and executed, together with payment of the Exercise Price in
accordance with the terms of the Warrant Agreement. In the event that upon any
exercise of Warrants evidenced hereby, the number of Warrants exercised shall be
less than the total number of Warrants evidenced hereby, there shall be issued
by the Company to the Holder hereof or its registered assignee a new Warrant
Certificate evidencing the number of Warrants not exercised.
Warrant Certificates, when surrendered with the assignment form
attached hereto as Annex B (and by this reference made a part hereof) properly
completed and executed at the office of the Company by the registered Holder
thereof in person or by a legal representative or attorney duly authorized in
writing, may be exchanged, in the manner and subject to the limitations provided
in the Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor evidencing in the
aggregate a like number of Warrants.
The Company may deem and treat the registered Holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone) for the purpose of any
exercise hereof, any distribution to the Holder(s) hereof and for all other
purposes. The Company shall not be affected by any notice to the contrary.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED BY ARTICLE 8 OF THE NEW YORK
UNIFORM COMMERCIAL CODE AND THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
signed by its President or Vice President and attested to by its Secretary or
Assistant Secretary.
THANE INTERNATIONAL, INC.
By: /s/
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Name:
Title:
Attest:
By:
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Name:
Title:
[Warrant Certificate signature page]
ANNEX A
to
Warrant Certificate
PURCHASE FORM
To:
The undersigned, pursuant to the provisions set forth in the attached
Warrant Certificate (Certificate No. W-___), hereby elects to exercise for the
purchase of ______ Warrant Shares covered by such Warrant Certificate and makes
payment herewith in full therefor at the price per share provided by such
Warrant Certificate, and directs that the Warrant Shares deliverable upon such
exercise be registered in the name and at the address specified below and
delivered thereto.
[HOLDER]
By:
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Name:
Title:
Notice Address:
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Date:
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ANNEX B
to
Warrant Certificate
FORM OF WARRANT ASSIGNMENT AGREEMENT
WARRANT ASSIGNMENT AGREEMENT (this "Agreement"), dated ______________
among (the "Assignor"), _______________(the "Assignee") and Thane International,
Inc. (the "Company"). Reference is made to that certain Warrant Agreement (the
"Warrant Agreement"), dated as of June ____, 1999, by and between the Company
and Paribas Capital Funding LLC and the Equityholders Agreement (as defined in
the Warrant Agreement). Terms not otherwise defined herein shall have the
meaning provided in the Warrant Agreement.
1. The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty for good and valuable
consideration which is hereby acknowledged, and the Assignee hereby purchases
and assumes from the Assignor, __________ Warrants (the "Assigned Warrants")
representing the Assignor's right to purchase __________ Class B Shares of the
Company, together with the rights and obligations under the Warrant Agreement
and the Equityholders Agreement (the Warrant Agreement and the Equityholders
Agreement together, the "Assigned Agreements") relating to the Assigned
Warrants.
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Warrant Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Assigned Agreements or any other instrument or document furnished
pursuant thereto; and (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company and its subsidiaries of any of their
obligations under any instrument or document to which they are a party.
3. The Assignee (i) confirms that it has received a copy of each
of the Assigned Agreements, together with copies of all financial statements and
other documents and information as it has deemed appropriate to make its own
investment analysis and decision to enter into this Agreement; (ii) agrees that
it will, independently and without reliance upon the Assignor and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own investment decisions in taking or not taking action under the
Assigned Agreements; (iii) confirms that it is an "accredited investor" as
defined in Regulation D promulgated under the Securities Act of 1933, as amended
(the "1933 Act"); and (iv) confirms to the Company that it is acquiring the
Assigned Warrants solely for its own account and not as nominee or agent for any
other person, and not with a view to, or for offer or sale in connection with,
any distribution thereof (within the meaning of the 1933 Act) that would be in
violation of the securities laws of the United States of America or any state
thereof.
4. Each of the undersigned hereby acknowledges and agrees that on
and after the Assignment Effective Date (as hereinafter defined), (i) the
Assigned Warrants shall constitute "Warrants" under the Warrant Agreement and
shall be entitled to all of the benefits and subject to all of the obligations
contained therein; (ii) the Assignee shall automatically without any further
action become a party to the Warrant Agreement and shall be entitled to all of
the benefits and subject to all of the obligations of a "Holder" (as defined
therein); (iii) the Assigned Warrants and any Warrant Shares issued pursuant to
such Assigned Warrants shall constitute "PCF Securities" under the Equityholders
Agreement and shall be entitled to all of the benefits and subject to all of the
obligations contained therein; (iv) the Assignee shall automatically without any
further action become a party to the Equityholders Agreement and shall be
entitled to all of the benefits and subject to all of the obligations of a
member of the "PCF Group" (as defined therein); and (v) each of the Assigned
Agreements shall remain in full force and effect with respect to each of the
undersigned following such assignment.
5. The Company hereby consents to the transfer being made
pursuant to this Agreement and acknowledges and agrees that the Assignee shall
become a party to each of the Assigned Agreements as of the date hereof.
6. The effective date of this Agreement shall be the date of
execution hereof by the Assignor and the Assignee and the receipt of the consent
of the Company (the "Assignment Effective Date").
7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement, as of the date first
above written.
[ASSIGNOR],
as Assignor
By:
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Title:
[ASSIGNEE],
as Assignee
By:
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Title:
Acknowledged and Agreed:
THANE INTERNATIONAL, INC.
By:
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Title: