**Exhibit 10.12**

 

THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISEOF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT AND THE SHARES ISSUABLE UPONEXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATIONSTATEMENT OR APPLICABLE EXEMPTION OR SAFE HARBOR PROVISION.

 

COMMON STOCK PURCHASE WARRANT

** **

**INCAPTA, INC.**

** **

 

THIS COMMON STOCK PURCHASEWARRANT (the “Warrant”) certifies that, for value received, JMJ Financial, its Principal, or its assigns (the “Holder”)is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time onor after the date hereof (the “Initial Exercise Date”) and on or prior to the close of business on the five (5) yearanniversary of the Initial Exercise Date (as subject to adjustment hereunder, the “Termination Date”), to subscribefor and purchase from InCapta, Inc., a Nevada corporation (the “Company”), up to 500,000 shares (as subject to adjustmentherein, the “Warrant Shares”) of common stock of the Company (the “Common Stock”). The purchase price ofone share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 1.2.

 

 

 

ARTICLE 1 EXERCISE RIGHTS

** **

The Holder will havethe right to exercise this Warrant to purchase shares of Common Stock as set forth below. Capitalized terms used and not otherwisedefined herein shall have the meanings set forth in that certain Securities Purchase Agreement Document SPA-02242016 dated February24, 2016 between the Company and the Holder (the “Agreement”).

 

1.1           Exerciseof Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, from and after theInitial Exercise Date, and then at any time, by delivery to the Company (or such other office or agency of the Company as it maydesignate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company) ofa duly executed facsimile or emailed copy of the Notice of Exercise form annexed hereto. Within three (3) business days followingthe date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the shares specified in the applicableNotice of Exercise by wire transfer or check drawn on a United States bank unless the cashless exercise procedure specified inSection 1.3 below is specified in the applicable Notice of Exercise. Partial exercises of this Warrant resulting in purchases ofa portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number ofWarrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and theCompany shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shalldeliver any objection to any Notice of Exercise form within 24 hours of receipt of such notice. The Holder and any assignee, byacceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase ofa portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time maybe less than the amount stated on the face hereof.

 

1.2           ExercisePrice. The exercise price per share of Common Stock under this Warrant shall be $0.05 per share, subject to adjustment hereunder(the “Exercise Price”). The aggregate exercise price is $25,000.

 

1.3           CashlessExercise. If at any time after the earlier of (i) the six (6) month anniversary of the date of the Agreement and (ii) the completionof the then-applicable holding period required by Rule 144, or any successor provision then in effect, there is no effective RegistrationStatement registering, or no current prospectus available for, the resale of the Warrant Shares by the Holder, then this Warrantmay also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shallbe entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:

 

 

 

(A) = the VWAP on the trading dayimmediately preceding the date on which Holder elects to exercise this Warrant by means of a “cashless exercise,” asset forth in the applicable Notice of Exercise;

 

(B) = the Exercise Price of thisWarrant, as adjusted hereunder; and

 

(X) = the number of Warrant Sharesthat would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by meansof a cash exercise rather than a cashless exercise.

 

1.4           Termination.On the Termination Date, if all or any portion of this Warrant remains unexercised, the Termination Date shall be automaticallyextended for two years.

 

1.5           Deliveryof Warrant Shares. Warrant Shares purchased hereunder will be delivered to Holder by 2:30 pm EST within two (2) business daysof Notice of Exercise by “DWAC/FAST” electronic transfer (such date, the “Warrant Share Delivery Date”).For example, if Holder delivers a Notice of Exercise to the Company at 5:15 pm eastern time on Monday January 1st, the Company’stransfer agent must deliver shares to Holder’s broker via “DWAC/FAST” electronic transfer by no later than 2:30pm eastern time on Wednesday January 3rd. The Warrant Shares shall be deemed to have been issued, and Holder or any other personso designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of thedate of delivery of the Notice of Exercise. Holder may assess penalties or liquidated damages (both referred to herein as “penalties”)as follows. For each exercise, in the event that shares are not delivered by the third business day (inclusive of the day of exercise),the Company shall pay the Holder in cash a penalty of $2,000 per day for each day after the third business day (inclusive of theday of exercise) until share delivery is made. The Company will not be subject to any penalties once its transfer agent correctlyprocesses the shares to the DWAC system. The Company will make its best efforts to deliver the Warrant Shares to the Holder thesame day or next day.

 

1.6           Deliveryof Warrant. The Holder shall not be required to physically surrender this Warrant to the Company. If the Holder has purchasedall of the Warrant Shares available hereunder and the Warrant has been exercised in full, this Warrant shall automatically be cancelledwithout the need to surrender the Warrant to the Company for cancellation. If this Warrant shall have been exercised in part, theCompany shall, at the request of Holder and upon surrender of this Warrant, at the time of delivery of the Warrant Shares, deliverto the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant,which new Warrant shall in all other respects be identical with this Warrant and, for purposes of Rule 144, shall tack back tothe original date of this Warrant.

 

 

 

1.7           WarrantExercise Rescission Rights. For any reason in Holder’s sole discretion, including if the Warrant Shares are not deliveredby DWAC/FAST electronic transfer or in accordance with the timeframe stated in Section 1.5, or for any other reason, Holder may,at any time prior to selling those Warrant Shares rescind such exercise, in whole or in part, in which case the Company must, withinthree (3) days of receipt of notice from the Holder, repay to the Holder the portion of the exercise price so rescinded and reinstatethe portion of the Warrant and equivalent number of Warrant Shares for which the exercise was rescinded and, for purposes of Rule144, such reinstated portion of the Warrant and the Warrant Shares shall tack back to the original date of this Warrant. If WarrantShares were issued to Holder prior to Holder’s rescission notice, upon return of payment from the Company, Holder will, withinthree (3) days of receipt of payment, commence procedures to return the Warrant Shares to the Company.

 

1.8           Compensationfor Buy-In on Failure to Timely Deliver Certificates Upon Exercise. In addition to any other rights available to the Holder,if the Company fails to cause its transfer agent to transmit to the Holder the Warrant Shares on or before the Warrant Share DeliveryDate, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or theHolder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder ofthe Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Companyshall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokeragecommissions and other fees, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying(1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issuetimes (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of theHolder, either (x) reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was nothonored (in which case such exercise shall be deemed rescinded), (y) deliver to the Holder the number of shares of Common Stockthat would have been issued had the Company timely complied with its exercise and delivery obligations hereunder, or (z) pay incash to the Holder the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliverto the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchaseobligation was executed. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respectof the Buy-In and, upon request of the Company, evidence of the amount of such loss.

 

1.9           Make-Wholefor Market Loss after Exercise. At the Holder’s election, if the Company fails for any reason to deliver to the Holderthe Warrant Shares by DWAC/FAST electronic transfer (such as by delivering a physical certificate) and if the Holder incurs a MarketPrice Loss, then at any time subsequent to incurring the loss the Holder may provide the Company written notice indicating theamounts payable to the Holder in respect of the Market Price Loss and the Company must make the Holder whole as follows:

 

Market Price Loss = [(High tradeprice on the day of exercise) x (Number of Warrant Shares)] – [(Sales price realized by Holder) x (Number of Warrant Shares)]

 

The Company must pay the Market Price Lossby cash payment, and any such cash payment must be made by the third business day from the time of the Holder’s written noticeto the Company.

 

 

 

1.10         Make-Wholefor Failure to Deliver Loss. At the Holder’s election, if the Company fails for any reason to deliver to the Holder theWarrant Shares by the Warrant Share Delivery Date and if the Holder incurs a Failure to Deliver Loss, then at any time the Holdermay provide the Company written notice indicating the amounts payable to the Holder in respect of the Failure to Deliver Loss andthe Company must make the Holder whole as follows:

 

Failure to Deliver Loss = [(Hightrade price at any time on or after the day of exercise) x (Number of Warrant Shares)]

 

The Company must pay the Failure to DeliverLoss by cash payment, and any such cash payment must be made by the third business day from the time of the Holder’s writtennotice to the Company.

 

1.11         Choiceof Remedies. Nothing herein, including, but not limited to, Holder’s electing to pursue its rights under Sections 1.9or 1.10 of this Warrant, shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or inequity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’sfailure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.

 

1.12         Charges,Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax orother incidental expense in respect of the issuance of such shares, all of which taxes and expenses shall be paid by the Company,and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder. TheCompany shall pay all transfer agent fees required for same-day processing of any Notice of Exercise.

 

1.13         Holder’sExercise Limitations. Unless otherwise agreed in writing by both the Company and the Holder, at no time will the Holder exerciseany amount of this Warrant to purchase Common Stock that would result in the Holder owning more than 4.99% of the Common Stockoutstanding of the Company (the “Beneficial Ownership Limitation”). Upon the written or oral request of Holder,the Company shall within twenty-four (24) hours confirm orally and in writing to the Holder the number of shares of Common Stockthen outstanding.

 

ARTICLE 2 ADJUSTMENTS

** **

2.1           StockDividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwisemakes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payablein shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company uponexercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (includingby way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassificationof shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multipliedby a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstandingimmediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediatelyafter such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that theaggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 2.1 shall becomeeffective immediately after the record date for the determination of stockholders entitled to receive such dividend or distributionand shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

 

 

 

2.2           SubsequentEquity Sales. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shallsell or grant any option to purchase, or sell or grant any right to reprice, or otherwise dispose of or issue (or announce anyoffer, sale, grant or any option to purchase or other disposition) any Common Stock (including pursuant to the terms of any outstandingsecurities issued prior to the issuance of this security (including, but not limited to, warrants, convertible notes, or otheragreements)) or any security entitling the holder thereof (including sales or grants to the Holder) to acquire Common Stock, including,without limitation, any debt, preferred stock, right, option, warrant or other instrument that is convertible into or exercisableor exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock (a “Common Stock Equivalent”),at an effective price per share less than the Exercise Price then in effect (such lower price, the “Base Share Price”and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the CommonStock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions,floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issuedin connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is less thanthe Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the DilutiveIssuance at such effective price regardless of whether such holder has received or ever receives shares at such effective price),then simultaneously with the consummation of each Dilutive Issuance the Exercise Price shall be reduced and only reduced to equalthe Base Share Price and consequently the number of Warrant Shares issuable hereunder shall be increased such that the AggregateExercise Amount hereunder, after taking into account the decrease in the Exercise Price, shall be equal to the Aggregate ExerciseAmount prior to such adjustment. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued.The Company shall notify the Holder, in writing, no later than the business day following the issuance or deemed issuance of anyCommon Stock or Common Stock Equivalents subject to this Section 2.2, indicating therein the applicable issuance price, or applicablereset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance Notice”).In addition, the Company shall provide the Holder, whenever the Holder requests at any time while this Warrant is outstanding,a schedule of all issuances of Common Stock or Common Stock Equivalents since the date of the Agreement, including the applicableissuance price, or applicable reset price, exchange price, conversion price, exercise price and other pricing terms. The term issuancesshall also include all agreements to issue, or prospectively issue Common Stock or Common Stock Equivalents, regardless of whetherthe issuance contemplated by such agreement is consummated. The Company shall notify the Holder in writing of any issuances withintwenty-four (24) hours of such issuance. For purposes of clarification, whether or not the Company provides a Dilutive IssuanceNotice pursuant to this Section 2.2, upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number ofWarrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in theNotice of Exercise. If the Company enters into a Variable Rate Transaction, the Company shall be deemed to have issued Common Stockor Common Stock Equivalents at the lowest possible conversion or exercise price at which such securities may be converted or exercised.“Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equitysecurities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of CommonStock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with,the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equitysecurities or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initialissuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly relatedto the business of the Company or the market for the Common Stock or (ii) enters into any agreement, including, but not limitedto, an equity line of credit, whereby the Company may sell securities at a future determined price.

 

 

 

2.3           SubsequentRights Offerings. In addition to any adjustments pursuant to Section 2.1 or 2.2 above, if at any time the Company grants, issuesor sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the recordholders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire,upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holderhad held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitationson exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a recordis taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the recordholders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however,to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding theBeneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (orbeneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Rightto such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in theHolder exceeding the Beneficial Ownership Limitation).

 

2.4           ProRata Distributions. If the Company, at any time while this Warrant is outstanding, shall distribute to all holders of CommonStock (and not to the Holder) evidences of its indebtedness or assets (including cash and cash dividends) or rights or warrantsto subscribe for or purchase any security other than the Common Stock (which shall be subject to Section 2.3), then in each suchcase the Exercise Price shall be adjusted by multiplying the Exercise Price in effect immediately prior to the record date fixedfor determination of stockholders entitled to receive such distribution by a fraction of which the denominator shall be the VWAPdetermined as of the record date mentioned above, and of which the numerator shall be such VWAP on such record date less the thenper share fair market value at such record date of the portion of such assets or evidence of indebtedness or rights or warrantsso distributed applicable to one outstanding share of the Common Stock as determined by the Board of Directors in good faith. Ineither case the adjustments shall be described in a statement provided to the Holder of the portion of assets or evidences of indebtednessso distributed or such subscription rights applicable to one share of Common Stock. Such adjustment shall be made whenever anysuch distribution is made and shall become effective immediately after the record date mentioned above.

 

 

 

2.5           Noticeto Holder. Whenever the Exercise Price is adjusted pursuant to any provision of this Article 2, the Company shall promptlynotify the Holder (by written notice) setting forth the Exercise Price after such adjustment and any resulting adjustment to thenumber of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.

 

ARTICLE 3 COMPANY COVENANTS

** **

3.1           Reservationof Shares. As set forth in Section 2.2 of document SPA-02242016, as of the issuance date of this Warrant and for the remainingperiod during which the Warrant is exercisable, the Company will reserve from its authorized and unissued Common Stock a sufficientnumber of shares to provide for the issuance of Warrant Shares upon the full exercise of this Warrant. The Company represents thatupon issuance, such Warrant Shares will be duly and validly issued, fully paid and non-assessable. The Company agrees that itsissuance of this Warrant constitutes full authority to its officers, agents and transfer agents who are charged with the duty ofexecuting and issuing shares to execute and issue the necessary Warrant Shares upon the exercise of this Warrant. No further approvalor authority of the stockholders of the Board of Directors of the Company is required for the issuance of the Warrant Shares.

 

3.2           NoAdverse Actions. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including,without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation,merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performanceof any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in thetaking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant againstimpairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Sharesabove the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such actionas may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable WarrantShares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptionsor consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to performits obligations under this Warrant.

 

ARTICLE 4 MISCELLANEOUS

** **

4.1           Representationby the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon anyexercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or fordistributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securitieslaw, except pursuant to sales registered or exempted under the Securities Act.

 

 

 

4.2           Transferability.Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder (including, without limitation,any registration rights) are transferable, in whole or in part, by a written assignment of this Warrant duly executed by the Holderor its agent or attorney. If necessary to obtain a new warrant for any assignee, the Company, upon surrender of this Warrant, shallexecute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denominationor denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portionof this Warrant not so assigned, and such new Warrants, for purposes of Rule 144, shall tack back to the original date of thisWarrant. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of WarrantShares without having a new Warrant issued.

 

4.3           Assignability.The Company may not assign this Warrant. This Warrant will be binding upon the Company and its successors, and will inure to thebenefit of the Holder and its successors and assigns, and may be assigned by the Holder to anyone of its choosing without the Company’sapproval.

 

4.4           Notices.Any notice required or permitted hereunder must be in writing and either personally served, sent by facsimile or email transmission,or sent by overnight courier. Notices will be deemed effectively delivered at the time of transmission if by facsimile or email,and if by overnight courier the business day after such notice is deposited with the courier service for delivery.

 

4.5           GoverningLaw. This Warrant will be governed by, and construed and enforced in accordance with, the laws of the State of Nevada, withoutregard to the conflict of laws principles thereof. Any action brought by either party against the other concerning the transactionscontemplated by this Warrant shall be brought only in the state courts of Florida or in the federal courts located in Miami-DadeCounty, in the State of Florida. Both parties and the individuals signing this Agreement agree to submit to the jurisdiction ofsuch courts.

 

4.6           Deliveryof Process by Holder to the Company. In the event of any action or proceeding by Holder against the Company, and only by Holderagainst the Company, service of copies of summons and/or complaint and/or any other process which may be served in any such actionor proceeding may be made by Holder via U.S. Mail, overnight delivery service such as FedEx or UPS, email, fax, or process server,or by mailing or otherwise delivering a copy of such process to the Company at its last known address or to its last known attorneyset forth in its most recent SEC filing.

 

4.7           NoRights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rightsas a stockholder of the Company prior to the exercise hereof as set forth in Section 1.1. So long as this Warrant is unexercised,this Warrant carries no voting rights and does not convey to the Holder any “control” over the Company, as such termmay be interpreted by the SEC under the Securities Act or the Exchange Act, regardless of whether the price of the Company’sCommon Stock exceeds the Exercise Price.

 

 

 

4.8           Limitationof Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchaseWarrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holderfor the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Companyor by creditors of the Company.

 

4.9           AttorneyFees. In the event any attorney is employed by either party to this Warrant with regard to any legal or equitable action, arbitrationor other proceeding brought by such party for the enforcement of this Warrant or because of an alleged dispute, breach, defaultor misrepresentation in connection with any of the provisions of this Warrant, the prevailing party in such proceeding will beentitled to recover from the other party reasonable attorneys’ fees and other costs and expenses incurred, in addition toany other relief to which the prevailing party may be entitled.

 

4.10         Opinionof Counsel. In the event that an opinion of counsel is needed for any matter related to this Warrant, Holder has the rightto have any such opinion provided by its counsel. Holder also has the right to have any such opinion provided by the Company’scounsel.

 

4.11         Nonwaiver.No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver ofsuch right or otherwise prejudice the Holder’s rights, powers or remedies.

 

4.12         AmendmentProvision. The term “Warrant” and all references thereto, as used throughout this instrument, means this instrumentas originally executed, or if later amended or supplemented, then as so amended or supplemented.

 

4.13         NoShorting. Holder agrees that so long as this Warrant remains unexercised in whole or in part, Holder will not enter into oreffect any “short sale” of the common stock or hedging transaction which establishes a net short position with respectto the common stock of the Company. The Company acknowledges and agrees that as of the date of delivery to the Company of a fullyand accurately completed Notice of Exercise, Holder immediately owns the common shares described in the Notice of Exercise andany sale of those shares issuable under such Notice of Exercise would not be considered short sales.

 

 

 

IN WITNESS WHEREOF, theCompany has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.

 

ISSUER:

** **

InCapta, Inc.

 

 

INVESTOR:

** **

JMJ Finanicial