EXHIBIT 10.2
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FORM OF WARRANT
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FORM OF COMMON STOCK PURCHASE WARRANT
INTERCALLNET, INC.
WARRANT TO PURCHASE __________ SHARES OF COMMON STOCK
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK UNDERLYING THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT")
AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED UNLESS (1) THEY ARE REGISTERED UNDER THE ACT OR (2) THE HOLDER HAS
DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, WHICH OPINION SHALL BE
SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT THERE IS AN AVAILABLE EXEMPTION
FROM REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THAT
REGISTRATION IS OTHERWISE NOT REQUIRED.
FOR VALUE RECEIVED, __________________ or its transferees or assigns (the
"Holder"), is entitled to purchase, subject to the provisions hereof, from
Intercallnet, Inc., a Florida corporation (the "Issuer"), ________ fully paid,
validly issued and non-assessable shares of common stock, par value $.0001 per
share (the "Common Stock"), of the Issuer (the "Shares") at a price equal to
$_____ per share subject to adjustment as provided for herein. The right to
purchase the Shares under this Warrant is exercisable, in whole or in part, at
any time and from time to time after the date of this Warrant for a period of
five (5) years and prior to 5:00 p.m., New York City time, on _________ __,
____. The Shares deliverable upon exercise of this Warrant (including any
adjusted number of Shares issuable pursuant to the provisions of this Warrant)
are hereinafter sometimes referred to as "Warrant Shares" and the exercise
price per Share in effect at any time and as adjusted from time to time is
hereinafter sometimes referred to as the "Exercise Price." This Warrant and all
warrants issued upon transfer, division or in substitution thereof are
hereinafter sometimes referred to as the "Warrants."
(a) Exercise of Warrant. This Warrant may be immediately exercised in
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whole or in part from time to time by presentation and surrender to the Issuer
at its principal office, or at the office of its principal stock transfer agent,
with the Purchase Form annexed hereto duly executed and accompanied by payment
of the Exercise Price for the number of Warrant Shares specified in such
Purchase Form. Payment shall be made by wire transfer or by certified or
official bank check. Notwithstanding the foregoing, the Holder may, in its sole
and absolute discretion, elect to pay the Exercise Price pursuant to a "cashless
exercise" procedure, by delivery of a properly executed Purchase Form, together
with such other documentation as may be reasonably required by the Issuer, to
effect an exercise of this Warrant and delivery to the Issuer by a licensed
broker acceptable to the Issuer of proceeds from the sale of the Warrant Shares
received pursuant to the exercise of this Warrant, or a margin loan sufficient
to pay the Exercise Price. As soon as practicable after the exercise of this
Warrant, and in any event within three New York Stock Exchange, Inc. trading
days, the Issuer shall issue and deliver to the Holder a certificate or
certificates representing the number of Shares issuable upon the exercise of
this Warrant (or such lesser number as shall be indicated on the Purchase Form),
registered in the name of the Holder or its designee. Such certificate(s) shall
bear a restrictive legend restricting the transferability of such shares under
the Act. If this Warrant is exercised only in part, the Issuer also shall issue
and deliver to the Holder a new Warrant, substantially in the form of this
Warrant, covering the number of Warrant Shares which then are issuable
hereunder. Upon receipt by the Issuer of this Warrant at its office, or by the
principal stock transfer
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agent of the Issuer at its office, in proper form for exercise, the Holder shall
as of that date be deemed to be the holder of record of the number of Warrant
Shares specified in the Purchase Form. The Issuer shall pay any and all
documentary stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of Warrant Shares on exercise of this Warrant.
(b) Reservation of Shares. The Issuer shall at all times reserve and keep
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available free from pre-emptive rights, out of its authorized but unissued
capital stock, for issuance on exercise of this Warrant, such number of Shares
as shall be required for issuance and delivery upon exercise of this Warrant.
All such Shares shall be duly authorized and, when issued upon such exercise,
shall be validly issued, fully paid and non-assessable and free of all pre-
emptive rights.
(c) Fractional Shares. No fractional shares or scrip representing
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fractional shares shall be issued upon the exercise of this Warrant, but the
Issuer shall issue one (1) additional share of its Common Stock in lieu of each
fraction of a share otherwise called for upon any exercise of this Warrant.
(d) Transfer of Warrant. This Warrant may be transferred in whole or in
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part only in accordance with the terms of the restrictive legend appearing on
the first page of this Warrant.
(e) Loss or Destruction of Warrant. Upon receipt by the Issuer of evidence
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reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Issuer will execute and
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deliver a new warrant of like tenor and date. Any such new Warrant executed and
delivered shall not constitute an additional contractual obligation on the part
of the Issuer, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time enforceable by anyone.
(f) Rights of the Holder. The Holder shall not, by virtue hereof, be
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entitled to any rights of a shareholder of the Issuer, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Issuer except to the extent set forth herein.
(g) Adjustment Provisions.
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(i) Adjustment for Dividends in Other Securities, Property., Etc.;
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Reclassification, Etc. In case at any time or from time to time after the date
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hereof the shareholders of the Company shall have received, or on or after the
record date fixed for the determination of eligible shareholders, shall have
become entitled to receive without payment therefor: (a) other or additional
securities or property (other than cash) by way of dividend, (b) any cash paid
or payable except out of earned surplus of the Company at the date hereof as
increased (decreased) by subsequent credits (charges) thereto (other than
credits in respect of any capital or paid-in surplus or surplus created as a
result of a revaluation of property) or (c) other or additional (or less)
securities or property (including cash) by way of stock-split, spin-off, split-
up, reclassification, combination of shares or similar corporate rearrangement,
then, and in each such case, the Holder of this Warrant, upon the exercise
thereof as provided in Section (a), shall be entitled to receive the amount of
securities and property (including cash in the cases referred to in clauses (b)
and (c)
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above) which such Holder would hold on the date of such exercise if on the Base
Date it had been the holder of record of the number of shares of Common Stock
subscribed for upon such exercise and had thereafter, during the period from the
date hereof to and including the date of such exercise, retained such shares
and/or all other additional (or less) securities and property (including cash in
the cases referred to in clauses (b) and (c) above) receivable by it as
aforesaid during such period, giving effect to all adjustments called for during
such period by Section (g)(ii).
(ii) Adjustment for Reorganization., Consolidation, Merger, Etc. In
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case of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable on the exercise of this Warrant)
after the date hereof or in case after such date the Company (or any such other
corporation) shall consolidate with or merge into another corporation or convey
all or substantially all of its assets to another corporation, then, and in each
such case, the Holder of this Warrant upon the exercise thereof as provided in
Section (a) at any time after the consummation of such reorganization,
consolidation, merger or conveyance, shall be entitled to receive, in lieu of
the securities and property receivable upon the exercise of this Warrant prior
to such consummation, the securities or property to which such Holder would have
been entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in
Section(g)(i); in each such case, the terms of this Warrant shall be applicable
to the securities or property receivable upon the exercise of this Warrant after
such consummation.
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(iii) Adjustment to Exercise Price. (A) If the Company, prior to the
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exercise of this Warrant and at any time or from time to time, shall issue, sell
or enter into any agreement to issue or sell, any shares of its capital stock
for no consideration or for a consideration per share less than the Exercise
Price (except any issuance to an employee of the Company pursuant to any
existing stock option plan or employee benefit plan), as in effect immediately
prior to each such issuance, then such Exercise Price, as in effect immediately
prior to each such issuance, shall forthwith be lowered to a price equal to the
quotient obtained by dividing: (i) an amount equal to the sum of (y) the total
number of shares of the equity capital of the Company outstanding on a fully
diluted basis (including the number of shares of such class or series of the
capital stock of the Company into which this Warrant shall be exercisable at
anytime and from time to time) immediately prior to such issuance, multiplied by
the Exercise Price in effect immediately prior to such issuance, and (z) the
consideration received by the Company upon such issuance; by (ii) the total
number of shares of the equity capital of the Company outstanding on a fully
diluted basis immediately after the issuance of such equity capital.
(B) For the purposes of any adjustment of an Exercise Price
pursuant to subsection (A) above, the following provisions shall be applicable:
(i) In the case of issuance of shares for cash in a
public offering or private placement, the consideration received by the Company
for such issuance shall be deemed to be the amount of cash paid therefor;
(ii) In the case of the issuance of shares for a
consideration in whole or in part other than cash, the non-cash consideration
received by the Company
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for such issuance shall be deemed to be the fair market value thereof (as
determined by the Board of Directors of the Company, in good faith); and
(iii) In the case of the issuance of options to purchase or
rights to subscribe for shares of the capital stock, securities by their terms
convertible into or exchangeable for shares of capital stock, or options to
purchase or rights to subscribe for such convertible or exchangeable securities:
(1) the aggregate maximum number of shares of capital
stock deliverable upon exercise of such options to purchase or rights to
subscribe for shares of capital stock shall be deemed to have been issued at the
time such options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in subsections (i) and (ii)
above), if any, received by the Company upon the issuance of such options or
rights plus the minimum purchase price provided in such options or rights for
the shares of capital stock covered thereby;
(2) the aggregate maximum number of shares of capital
stock deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities or upon the exercise of options to purchase or rights to
subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been issued at the time
such securities, options, or rights were issued and for a consideration equal to
the consideration received by the Company for any such securities and related
options or rights, plus the additional consideration, if any, to be received by
the Company upon the conversion or exchange of such securities or the
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exercise of any related options or rights (the consideration in each case to be
determined in the manner provided in subsections (i) and (ii) above);
(3) on any change in the number of shares or exercise
price of shares of capital stock deliverable upon exercise of any such options
or rights or conversions of or exchanges for such securities, other than a
change resulting from the anti-dilution provisions thereof, the Exercise Price
shall forthwith be readjusted to such Exercise Price as would have been obtained
had the adjustment made upon the issuance of such options, rights or securities
(to the extent not converted prior to such change), or options or rights related
to such securities (to the extent not converted prior to such change), been made
upon the basis of such change;
(4) on the expiration of any such options or rights,
the termination of any such rights to convert or exchange or the expiration of
any options or rights related to such convertible or exchangeable securities,
the Exercise Price shall forthwith be readjusted to such Exercise Price as would
have been obtained had the adjustment made upon the issuance of such options,
rights, securities or options or rights related to such securities been made
upon the basis of the issuance of only the number of shares of capital stock
actually issued upon the exercise of such options or rights, upon the conversion
or exchange of such securities, or upon the exercise of the options or rights
related to such securities and subsequent conversion or exchange thereof which
in each case had not expired or terminated; and
(5) No further adjustment of the Exercise Price
adjusted upon the issuance of any such options, rights, convertible securities
or
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exchangeable securities shall be made as a result of the actual issuance of
shares of capital stock on the exercise of any such rights or options or any
conversion or exchange of any such securities.
(iv) Impairment. The Company will not, by amendment of its
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charter documents or through reorganization, consolidation, merger, dissolution,
issue or sale of securities, sale of assets or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of the
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder of this Warrant against
dilution or other impairment. Without limiting the generality of the foregoing,
while any Warrant is outstanding and without the prior written consent of the
Holder hereof, the Company (a) will not permit the par value, if any, of the
shares of stock receivable upon the exercise of this Warrant to be above the
amount payable therefor upon such exercise, (b) will take all such action as may
be necessary or appropriate in order that the Company may validly and legally
issue or sell fully-paid and non-assessable stock upon the exercise of all
Warrants at the time outstanding, and (c) will take no action after the date
hereof to amend its charter documents which would change to the detriment of the
holders of Common Stock the dividend or voting rights of the Company's Common
Stock (as constituted on the date hereof).
(v) Certificate as to Adjustments. In each case of an
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adjustment in the number of shares of Common Stock (or other securities or
property) receivable on the exercise of the Warrant, the Company at its expense
will promptly
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compute such adjustment in accordance with the terms of the Warrant and prepare
a certificate setting forth such adjustment and showing in detail the facts upon
which such adjustment is based. The Company will forthwith mail a copy of each
such certificate to each holder of the Warrant.
(vi) Notices of Record Date, Etc.
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In case:
(a) the Company shall take a record of the holders of its
Common Stock (or other securities at the time receivable upon the exercise of
the Warrant) for the purpose of entitling them to receive any dividend (other
than a cash dividend) or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities, or to receive any other right; or
(b) of any capital reorganization of the Company (other
than a stock split or reverse stock split), any reclassification of the capital
stock of the Company, any consolidation or merger of the Company with or into
another corporation (other than a merger for purposes of change of domicile) or
any conveyance of all or substantially all of the assets of the Company to
another corporation; or
(c) of any voluntary or involuntary dissolution,
liquidation or winding-up of the Company, then, and in each such case, the
Company shall mail or cause to be mailed to each holder of the Warrant at the
time outstanding a notice specifying, as the case may be, (i) the date on which
a record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(ii) the date on which such reorganization,
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reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, is to be fixed, as to which
the holders of record of Common Stock (or such other securities at the time
receivable upon the exercise of the Warrant) shall be entitled to exchange their
shares for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up. Such notice shall be mailed at least twenty (20) days prior to the
date therein specified and the Warrant may be exercised prior to said date
during the term of the Warrant no later than five (5) days prior to said date.
(h) Applicable Law. This Warrant is issued under and shall for all purposes
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be governed by and construed in accordance with the laws of the State of
Florida.
(i) Assignment. This Warrant may be assigned by the Holder to any third
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party upon the execution and delivery to the Company of the Assignment Form
annexed hereto, subject to any restrictions imposed by applicable securities
laws.
(j) Notice. Notices and other communications to be given to the Holder of
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the Warrant evidenced by this certificate shall be deemed to have been
sufficiently given, if delivered or mailed, addressed in the name and at the
address of such owner appearing on the records of the Company, and if mailed,
sent registered or certified mail, postage prepaid. Notices or other
communications to the Company shall be deemed to have been sufficiently given if
delivered by hand or mailed, by registered or certified mail, postage prepaid,
to the Company at ▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
President, or at such other address as the Company shall have designated by
written notice
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to such registered owner as herein provided. Notice by mail shall be deemed
given when deposited in the United States mail as herein provided.
(k) Registration Rights Agreement; Shareholders' Agreement. The shares of
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Common Stock issuable and issued upon exercise of this Warrant shall be entitled
to certain registration rights, and other rights and obligations, in accordance
with the provisions of that certain Registration Rights Agreement and that
certain Shareholders' Agreement, each dated as of February 28, 2002.
(l) Redemption of Warrant. Notwithstanding anything contained herein to the
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contrary, the Warrant cannot be redeemed by the Company under any circumstances,
without the prior written consent of the Holder.
(m) Survival. Any obligation of the Issuer under this Warrant, the
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complete performance of which may require performance beyond the term of this
Warrant, shall survive the expiration of such term.
(n) Amendments and Waivers. The respective rights and obligations of the
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Issuer and the Holder may be modified or waived only by a writing executed by
the party against whom the amendment or waiver is to be enforced.
IN WITNESS WHEREOF, the Issuer has caused this Warrant to be duly executed
and delivered as of ___________ __, _____.
INTERCALLNET, INC.
By:______________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
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PURCHASE FORM
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The undersigned hereby irrevocably elects to exercise the within Warrant as
to ___________ shares of Common Stock and hereby makes payment of $____________
in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF COMMON STOCK
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Name: _______________________________________________
(Please typewrite or print in block letters)
Address: __________________________________________
__________________________________________
Signature:__________________________
ASSIGNMENT FORM
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FOR VALUE RECEIVED, __________________________ hereby sells, assigns and
transfers unto
Name: __________________________________
Address: __________________________________
__________________________________
the right to purchase Common Shares represented by this Warrant to the extent of
_______ shares of Common Stock as to which such right is exercisable and does
hereby irrevocably constitute and appoint _____________ Attorney, to transfer
the same on the books of the Issuer with full power of substitution in the
premises.
Dated: ________, 2002
Signature: _________________________
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