Exhibit
4.1


 


THIS WARRANT AND THE
SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF OR IN ACCORDANCE WITH APPLICABLE LAW.


 


WARRANT
TO PURCHASE STOCK


 


Corporation:                          FOCUS ENHANCEMENTS,
INC.


Number
of Shares:               75,000


Class of
Stock:                      Common


Initial
Exercise Price:            $0.80


Issue
Date:                            February 22,
2008


Expiration
Date:                    February 22,
2015


 


THIS
WARRANT CERTIFIES THAT HERITAGE COMMERCE CORP. or registered assignee (“Holder”)
is entitled to purchase the number of fully paid and nonassessable shares (the “Shares”)
of Common Stock of FOCUS ENHANCEMENTS, INC. (the “Company”), in the number, at
the price, and for the term specified above.


 


ARTICLE 1.           EXERCISE


 


1.1           Method of Exercise.  Holder may exercise this Warrant by
delivering this Warrant and a duly executed Notice of Exercise in substantially
the form attached as Appendix 1 to the principal office of the Company.  Unless Holder is exercising the conversion
right set forth in Section 1.2, Holder shall also deliver to the Company a
check for the aggregate Warrant Price for the Shares being purchased.


 


1.2           Conversion Right.  In lieu of exercising this Warrant as
specified in Section 1.1, Holder may from time to time convert this
Warrant, in whole or in part, into a number of Shares determined by dividing (a) the
aggregate fair market value of the Shares being converted or other securities
otherwise issuable upon exercise of this Warrant minus the aggregate Warrant
Price of such Shares by (b) the fair market value of one such Share.  The fair market value of the converted Shares
shall be determined pursuant to Section 1.3.


 


1.3           Fair Market Value.  If the Shares are traded regularly in a
public market, the fair market value of the Shares shall be the closing price
of the Shares (or the closing price of the Company’s stock into which the
Shares are convertible) reported for the business day immediately preceding the
day (by 5:00 p.m.  California Time
of such day)  Holder delivers its Notice
of Exercise to the Company.  If the
Shares are not regularly traded in a public market, the Board of Directors of
the Company shall determine fair market value in its reasonable good faith
judgment.  The foregoing notwithstanding,
if Holder advises the Board of Directors in writing that Holder disagrees with
such determination, then the Company and Holder shall promptly agree upon a
reputable investment banking firm to undertake such valuation.  If the valuation of such investment banking
firm is greater than that determined by the Board of Directors, then all fees
and expenses of such investment banking firm shall be paid by the Company.  In all other circumstances, such fees and
expenses shall be paid by Holder.


 


1.4           Delivery of Certificate and New
Warrant.  Promptly after Holder
exercises or converts this Warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not been fully
exercised or converted and has not expired, a new Warrant representing the
Shares not so acquired.


 


1.5           Replacement of Warrants.  On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of mutilation, or surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant,
a new warrant of like tenor.


 


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ARTICLE 2.           ADJUSTMENTS
TO THE SHARES.


 


2.1           Stock Dividends, Splits, Etc.  If the Company declares or pays a dividend on
its common stock payable in common stock, or other securities, or subdivides
the outstanding common stock into a greater amount of common stock, then upon
exercise of this Warrant, for each Share acquired, Holder shall receive,
without cost to Holder, the total number and kind of securities to which Holder
would have been entitled had Holder owned the Shares of record as of the date
the dividend or subdivision occurred.


 


2.2           Reclassification, Exchange or
Substitution.  Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise or
conversion of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities and property
that Holder would have received for the Shares if this Warrant had been
exercised immediately before such reclassification, exchange, substitution, or
other event.    Upon the closing of any
sale, license, or other disposition of all or substantially all of the assets
(including intellectual property) of the Company, or any reorganization,
consolidation, or merger of the Company with or into a third party where the
holders of the Company’s securities before the transaction beneficially own, as
a result of such Company securities ownership before such transaction,  less than 50% of the outstanding voting
securities of the surviving entity after the transaction, the successor entity
shall assume the obligations of this Warrant, and this Warrant thereafter shall
be exercisable for the same securities, cash, and property as would be payable
for the Shares issuable upon exercise of the unexercised portion of this
Warrant as if such Shares were outstanding on the record date for such
transaction and the Warrant Price shall be adjusted accordingly.  The Company or its successor shall promptly
issue to Holder a new Warrant for such new securities or other property.  The new Warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 2 including, without limitation, adjustments
to the Warrant Price and to the number of securities or property issuable upon
exercise of the new Warrant.  The
provisions of this Section 2.2 shall similarly apply to successive
reclassifications, exchanges, substitutions, or other events.


 


2.3           Adjustments for Combinations, Etc.  If the outstanding Shares are combined or
consolidated, by reclassification or otherwise, into a lesser number of shares,
the Warrant Price shall be proportionately increased and the number of Shares
for which this Warrant is convertible or exercisable shall be proportionately
decreased.


 


2.4           No Impairment.  The Company shall not, by amendment of its
Certificate of Incorporation or through a 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 performance of any
of the terms to be observed or performed under this Warrant by the Company, but
shall at all times in good faith assist in carrying out all the provisions of
this Article 2 and in taking all such action as may be necessary or
appropriate to protect Holder’s rights under this Article against
impairment.


 


2.5           Certificate as to Adjustments.  Upon each adjustment of the Warrant Price,
the Company at its expense shall promptly compute such adjustment, and furnish
Holder with a certificate of its Chief Financial Officer setting forth such
adjustment and the facts upon which such adjustment is based.  The Company shall, upon written request,
furnish Holder a certificate setting forth the Warrant Price in effect upon the
date thereof and the series of adjustments leading to such Warrant Price.


 


ARTICLE 3.           REPRESENTATIONS
AND COVENANTS OF THE COMPANY.


 


3.1           Representations and Warranties.  The Company hereby represents and warrants to
the Holder as follows:


 


(a)           All Shares that may
be issued upon the exercise of the purchase right represented by this Warrant,
shall, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable, and free of any liens and encumbrances except for restrictions
on transfer provided for herein or under applicable federal and state
securities laws.


 


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(b)           The Company’s
capitalization is set forth in its most recent filings under the Securities Act
of 1934, as amended, and as of the date of issuance hereof has not changed
materially.


 


3.2           Notice of Certain Events.  If the Company proposes at any time (a) to
declare any dividend or distribution upon its common stock, whether in cash,
property, stock, or other securities and whether or not a regular cash
dividend; (b) to offer for subscription pro rata to the holders of any
class or series of its stock any additional shares of stock of any class or
series or other rights; (c) to effect any reclassification or
recapitalization of common stock; (d) to merge or consolidate with or into
any other corporation, or sell, lease, license, or convey all or substantially
all of its assets, or to liquidate, dissolve or wind up; or (e) offer
holders of registration rights the opportunity to participate in an
underwritten public offering of the company’s securities for cash, then, in
connection with each such event, the Company shall give Holder (1) at
least 10 days prior written notice of the date on which a record will be
taken for such dividend, distribution, or subscription rights (and specifying
the date on which the holders of common stock will be entitled thereto) or for
determining rights to vote, if any, in respect of the matters referred to in (a) and
(b) above; (2) in the case of the matters referred to in (c) and
(d) above at least 10 days prior written notice of the date when the
same will take place (and specifying the date on which the holders of common
stock will be entitled to exchange their common stock for securities or other
property deliverable upon the occurrence of such event); and (3) in the
case of the matter referred to in (e) above, the same notice as is given
to the holders of such registration rights.


 


3.3           Registration Rights.  The Shares, or the common stock into which
the Shares are convertible, shall be “Registrable Securities” as such term is
defined under the Amended and Restated Registration Rights Agreement dated as
of February 7, 2008 among the Company and the Purchasers named therein,
and Company agrees that upon any registration thereof under such Amended and
Restated Registration Rights Agreement, it shall offer  Holder the right to register  this Warrant and  the 
Shares for which this Warrant is exercisable or convertible Shares
pursuant to this Warrant under any such registration statement  pursuant to which the described Purchasers’
securities covered thereby are registeredthe Amended and Restated Registration
Rights Agreement dated as of February 7, 2008 among the Company and the
Purchasers named therein.


 


ARTICLE 4.           MISCELLANEOUS.


 


4.1           Term.  This Warrant is exercisable, in whole or in
part, at any time and from time to time on or before the Expiration Date set
forth above.


 


4.2           Legends.  This Warrant and the Shares (and the
securities issuable, directly or indirectly, upon conversion of the Shares, if
any) shall be imprinted with a legend in substantially the following form:


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR IN ACCORDANCE WITH APPLICABLE LAW.


 


4.3           Compliance with Securities Laws on
Transfer.  This Warrant and the
Shares issuable upon exercise this Warrant (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee.


 


4.4           Transfer Procedure.  Subject to the provisions of Section 4.3,
Holder may transfer all or part of this Warrant or the Shares issuable upon
exercise of this Warrant (or the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) by giving the Company notice of the
portion of the Warrant being transferred setting forth the name, address and
taxpayer identification number of the transferee and surrendering this Warrant
to the Company for reissuance to the transferee(s) (and Holder, if
applicable), provided that no such notice shall be required for a transfer to
an affiliate of Holder.


 


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4.5           Notices.  All notices and other communications from the
Company to the Holder, or vice versa, shall be deemed delivered and effective
when given personally or mailed by first-class registered or certified mail,
postage prepaid, at such address as may have been furnished to the Company or
the Holder, as the case may be, in writing by the Company or such Holder from
time to time.


 


4.6           Waiver.  This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought.


 


4.7           Attorneys’ Fees.  In the event of any dispute between the
parties concerning the terms and provisions of this Warrant, the party
prevailing in such dispute shall be entitled to collect from the other party
all costs incurred in such dispute, including reasonable attorneys’ fees.


 


4.8           Governing Law.  This Warrant shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to its principles regarding conflicts of law.


 


	
   

  	
   

  	
  FOCUS ENHANCEMENTS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Brett Moyer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Brett Moyer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: President & CEO

  



 


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APPENDIX
1


 


NOTICE
OF EXERCISE


 


1.             The undersigned hereby elects to
purchase
                            
shares of the Common Stock of FOCUS ENHANCEMENTS, INC.  pursuant
to the terms of the attached Warrant, and tenders herewith payment of the
purchase price of such shares in full.


 


1.             The undersigned hereby elects to
convert the attached Warrant into Shares in the manner specified in the
Warrant.  This conversion is exercised
with respect to                             
of the Shares covered by the Warrant.


 


[Strike
paragraph that does not apply.]


 


2.             Please issue a certificate or
certificates representing said shares in the name of the undersigned or in such
other name as is specified below:


 


Heritage
Commerce Corp.


 


Or
Registered Assignee


 


3.             The undersigned represents it is
acquiring the shares solely for its own account and not as a nominee for any
other party and not with a view toward the resale or distribution thereof
except in compliance with applicable securities laws.


 


	
  HERITAGE COMMERCE CORP. or Registered 

  Assignee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Signature)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Date)

  	
   

  	
   

  



 


 


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