EXHIBIT 10.48
WARRANT AGREEMENT
(SWITCHES)
This WARRANT AGREEMENT, dated as of March 5, 1998, between EQUALNET HOLDING
CORP., a Texas corporation (the "Company"), and ▇▇▇▇▇▇ GROUP, LLC, a Texas
limited liability company ("▇▇▇▇▇▇" and, together with any transferee of
Warrants or Warrant Shares, the "Warrant Holders(s)").
WHEREAS, ▇▇▇▇▇▇, the Company, EqualNet Corporation, Telesource, Inc., and
EqualNet Wholesale Services, Inc., have entered into a certain Note and Warrant
Purchase Agreement (the "Note Purchase Agreement") dated October 1, 1997, and
▇▇▇▇▇▇, the Company and EQ Acquisition Sub, Inc., a Delaware corporation ("Sub")
have entered into a certain Switch Agreement (the "Switch Agreement") dated
December 2, 1997; and
WHEREAS, the Company proposes to issue to ▇▇▇▇▇▇ as partial consideration
for ▇▇▇▇▇▇'▇ sale of certain switches pursuant to the Switch Agreement, common
stock purchase warrants (the "Warrants") to purchase up to 400,000 shares (the
"Warrant Shares") of the Company's common stock, par value $0.01 per share (the
"Common Stock"), each Warrant entitling the holder thereof to purchase one share
of Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein and in the Agreement set forth and for other good and valuable
consideration, the parties hereto agree as follows:
1. ISSUANCE OF WARRANTS: FORM OF WARRANT. As of the date hereof the
Company will issue and deliver the Warrants to ▇▇▇▇▇▇. The aggregate number of
Warrants to be issued and delivered shall be 400,000 (subject to any further
limitation provided herein). The Warrants shall be exercisable on or after the
date hereof. The text of each Warrant shall be substantially as set forth in
the Warrant Certificate attached as Exhibit A hereto. The Warrants shall be
executed on behalf of the Company by the manual or facsimile signature of the
present or any future Chairman of the Board, President, or Vice President of the
Company, attested by the manual or facsimile signature of the present or future
Secretary or an Assistant Secretary of the Company. A Warrant bearing the
manual or facsimile signature of individuals who were at any time the proper
officers of the Company shall bind the Company notwithstanding that such
individuals or any of them shall have ceased to hold such offices prior to the
delivery of such Warrant or did not hold such offices on the date of this
Warrant Agreement.
Warrants shall be dated as of the date of execution thereof by the Company
either upon initial issuance or upon division, exchange, substitution or
transfer.
The demand and the piggy-back registration rights set forth in Section 16
hereof may be exercised at any time during the term of the Warrants.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company hereby represents and warrants as follows:
(i) POWER AND AUTHORITY. The Company has all requisite corporate power
and authority, and has taken all corporate action necessary, to execute,
deliver and perform this Warrant Agreement, to grant, issue, and deliver
the Warrants and to authorize and reserve for issuance and, upon payment
from time to time of the Exercise Price, to issue and deliver the shares of
Common Stock or other securities issuable upon exercise of the Warrants.
This Warrant Agreement has been duly executed and delivered by the Company.
(ii) RESERVATION, ISSUANCE AND DELIVERY OF COMMON STOCK. There have
been reserved for issuance, and the Company shall at all times keep
reserved, out of the authorized and unissued shares of Common Stock, a
number of shares sufficient to provide for the exercise of the rights of
purchase represented by the Warrants, and such shares, when issued upon
receipt of payment therefor or upon a net exercise in accordance with the
terms of the Warrants and of this Warrant Agreement, will be legally and
validly issued, fully paid and non-assessable and will be free of any
preemptive rights of shareholders or any restrictions.
(b) The Warrant Holder hereby represents and warrants as follows:
(i) ACCREDITED INVESTOR. The Warrant Holder is an "accredited
investor" within the meaning of Rule 501 under Regulation D promulgated
under the Securities Act, is experienced in evaluating investments in
companies such as the Company, has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits
and risks of its investment and has the ability to bear the entire economic
risk of its investment. The Warrant Holder has made its own evaluation of
its investment in the Warrants, based upon such information as is available
to it and without reliance upon the Company or any other person or entity,
and the Warrant Holder agrees that neither the Company nor any other person
or entity has any obligation to furnish any additional information to the
Warrant Holder except as expressly set forth herein.
3. CONDITIONS TO PURCHASE. ▇▇▇▇▇▇'▇ obligations hereunder shall be subject
to satisfaction of the following conditions on or before the date hereof:
(a) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Warrant Agreement and the Warrants
and all other legal matters relating to this Warrant Agreement, the
Warrants and the transactions contemplated hereby shall be satisfactory in
all respects to ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for ▇▇▇▇▇▇, in their
reasonable judgment, and the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable
them to pass judgment upon such matters.
(b) There shall have been duly tendered to ▇▇▇▇▇▇ or upon the order of
▇▇▇▇▇▇ a certificate or certificates representing the Warrants.
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4. REGISTRATION. The Warrants shall be numbered and shall be registered
on the books of the Company (the "Warrant Register") as they are issued. The
Warrants shall be registered initially in such names and such denominations as
▇▇▇▇▇▇ has specified to the Company.
5. EXCHANGE OF WARRANT CERTIFICATES. Subject to any restriction upon
transfer set forth in this Warrant Agreement, each Warrant certificate may be
exchanged at the option of the Warrant Holder thereof for another certificate or
certificates of different denominations entitling the Warrant Holder thereof to
purchase upon surrender to the Company or its duly authorized agent a like
aggregate number of Warrant Shares as the certificate or certificates
surrendered then entitle such Warrant Holder to purchase. Any Warrant Holder
desiring to exchange a Warrant certificate or certificates shall make such
requests in writing delivered to the Company, and shall surrender, properly
endorsed, the certificate or certificates to be so exchanged. Thereupon the
Company shall execute and deliver to the person entitled thereto a new Warrant
certificate or certificates as the case may be, as so requested. Any Warrant
issued upon exchange, transfer or partial exercise of the Warrants shall be the
valid obligation of the Company, evidencing the same generic rights and entitled
to the same generic benefits under this Warrant Agreement as the Warrants
surrendered for such exchange, transfer or exercise.
6. TRANSFER OF WARRANTS. Subject to the provisions of Section 14 hereof,
the Warrants shall be transferrable only on the Warrant Register upon delivery
to the Company of the Warrant certificate or certificates duly endorsed by the
Warrant Holder or by his duly authorized attorney-in-fact or legal
representative, or accompanied by proper evidence of succession, assignment or
authority to transfer. In all cases of transfer by an attorney-in-fact, the
original power of attorney, duly approved, or an official copy thereof, duly
certified, shall be deposited with the Company. In case of transfer by
executors, administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced, and may be required
to be deposited with the Company in its discretion. Upon any registration of
transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto.
7. TERM OF WARRANTS; EXERCISE OF WARRANTS.
(a) Each Warrant entitles the Warrant Holder thereof to purchase one share
of Common Stock during the time period and subject to the conditions set forth
in the respective Warrant Certificates at an exercise price of $?.00 per share,
subject to adjustment in accordance with Section 12 hereof (the "Exercise
Price"). Each Warrant terminates on the fifth anniversary of the date on which
such Warrant becomes exercisable in accordance with its terms (the "Expiration
Date").
(b) The Exercise Price and the number of shares issuable upon exercise of
Warrants are subject to adjustment upon the occurrence of certain events,
pursuant to the provisions of Section 12 of this Warrant Agreement. Subject to
the provisions of this Warrant Agreement, each Warrant Holder shall have the
right, which may be exercised as expressed in such Warrants, to purchase from
the Company (and the Company shall issue and sell to such Warrant Holder) the
number of fully paid and nonassessable shares of Common Stocks specified in
such Warrants, upon surrender to the Company, or its duly authorize agent of
such Warrants, with the purchase form on the reverse thereof duly filled in and
signed and upon payment to the Company of the Exercise Price, as
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adjusted in accordance with the provisions of Section 12 of this Warrant
Agreement or upon a net exercise pursuant to this subsection of this Warrant
Agreement, for the number of shares in respect of which such Warrants are then
exercised. The Warrant Holder may (i) pay the Exercise Price in cash, by
certified or official bank check payable to the order of the Company, or (ii)
make an exercise of Warrants for "Net Warrant Shares." The number of Net
Warrant Shares will be determined as described by the following formula: Net
Warrant Shares = [WS x (MP-EP)]/MP. "WS" is the number of Warrant Shares
issuable upon exercise of the Warrants or portion of Warrants in question. "MP"
is the Market Price" of the Common Stock on the last trading day preceding the
date of the request to exercise the Warrants. "Market Price" shall mean the
then current market price per share of Common Stock, as determined in paragraph
12.1(e). "EP" shall mean the Exercise Price.
Upon such surrender of Warrants and payments of the Exercise Price with
cash or securities, or upon a net exercise as aforesaid, the Company at its
expense shall issue and cause to be delivered with all reasonable dispatch to or
upon the written order of the Warrant Holder and in such name or names as the
Warrant Holder may designate, a certificate or certificates for the number of
full shares of Common Stock so purchased upon the exercise of such Warrants,
together with cash, as provided in Section 12 of this Warrant Agreement in
respect of any fraction of a share of such stock otherwise issuable upon such
surrender. Such certificate or certificates shall be deemed to have been
issued, and any person so designated to be named therein shall be deemed to have
become a holder of record of such shares, as of the date of the surrender of
such Warrants and payment of the Exercise Price or receipt of shares by net
exercise as aforesaid. The rights of purchase represented by the Warrants shall
be exercisable, at the election of the Warrant Holders thereof, either in full
or from time to time in part and, in the event that any Warrant is exercised in
respect of less than all of the shares purchasable on such exercise at any time
prior to the Expiration Date, a new certificate evidencing the remaining Warrant
or Warrants will be issued.
8. COMPLIANCE WITH GOVERNMENT REGULATIONS. The Company covenants that if
any share of Common Stock required to be reserved for purposes of exercise or
conversion of Warrants require, under any federal or state law or applicable
governing rule or regulation of any national securities exchange, registration
with or approval of any governmental authority, or listing on any such national
securities exchange, before such shares may be issued upon exercise the Company
will use its commercially reasonable efforts to cause such shares to be duly
registered approved or listed on the relevant national securities exchange as
the case may be.
9. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes, if
any, attributable to the initial issuance of Warrant Shares upon the exercise of
Warrants and any securities issued pursuant to Section 12 hereof; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue or delivery of
any Warrants or certificates for Warrant Shares and any securities issued
pursuant to Section 12 hereof in a name other than that of the Warrant Holder of
such Warrants.
10. MUTILATED OR MISSING WARRANTS. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and in substitution for the Warrant lost, stolen, or destroyed, a new
Warrant of like tenor and representing an equivalent right or interest.
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11. RESERVATION OF WARRANT SHARES; PURCHASE AND CANCELLATION OF WARRANTS.
The Company shall at all times reserve, out of the authorized and unissued
shares of Common Stock, a number of shares sufficient to provide for the
exercise of the rights of purchase represented by the Warrants, and the transfer
agent for the Common Stock ("Transfer Agent") and every subsequent transfer
agent for any shares of the Company's capital stock issuable upon the exercise
of any of the rights of purchase aforesaid are hereby irrevocably authorized and
directed at all times until the Expiration Date to reserve such number of
authorized and unissued shares as shall be requisite for such purpose. The
Company will keep a copy of this Warrant Agreement on file with the Transfer
Agent and with every subsequent transfer agent for any shares of the Company's
capital stock issuable upon the exercise of the rights of purchase represented
by the Warrants. The Company will supply the Transfer Agent and any such
subsequent transfer agent with duly executed stock certificates for such purpose
and will itself provide or otherwise make available any cash which may be
issuable as provided by Section 13 of this Warrant Agreement. The Company will
furnish to the Transfer Agent and any such subsequent transfer agent a copy of
all notices of adjustments, and certificates related thereto, transmitted to
each Warrant Holder pursuant to Section 12.3 hereof. All warrants surrendered in
the exercise of the rights thereby evidenced shall be canceled, and such
canceled Warrants shall constitute sufficient evidence of the number of shares
of stock which have been issued upon the exercise of such Warrants (subject to
adjustment as herein provided). No shares of stock shall be subject to
reservation in respect of the Warrants subsequent to the Expiration Date except
to the extent necessary to comply with the terms of this Warrant Agreement.
12. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The number
and kind of securities purchasable upon the exercise of each Warrant and the
Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as hereafter defined.
12.1 MECHANICAL ADJUSTMENTS. The number of Warrant Shares purchasable
upon the exercise of each Warrant and the Warrant Price shall be subject to
adjustment as follows:
(a) In case the Company shall (i) pay a dividend to holders of
Common Stock in shares of Common Stock or make a distribution to holders of
Common Stock in shares of Common Stock (ii) subdivide its outstanding shares of
Common Stock into a larger number of shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock or (iv) issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in connection
with a consolidation or merger in which the Company is the surviving
corporation), the number of Warrant Shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the Warrant Holder
shall be entitled to receive the kind and number of Warrant Shares or other
securities of the Company which he would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrants been exercised immediately prior to the happening of such event or any
record date with respect thereto regardless of whether the Warrants are
exercisable at the time of the happening to such event or at the time of any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
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(b) In case the Company shall issue rights, options, or warrants to holders
of its outstanding Common Stock, without any charge to such holders, entitling
them to subscribe for or purchase shares of Common Stock at a price per share
which is lower at the record date mentioned below than the Exercise Price, then
(i) the Exercise in effect immediately prior to such issuance shall immediately
be reduced to the price that is equivalent to such consideration received by the
Company upon such issuance and (ii) the number of Warrant Shares thereafter
purchasable upon the exercise of each Warrant shall be increased in direct
proportion to the increase in the number of shares of Common Stock outstanding
on a fully diluted basis immediately prior to such issuance; provided that if
such shares of Common Stock, options or other convertible securities (other than
Excluded Stock (as defined in the Note Purchase Agreement)) are issued for
consideration per share less than the Exercise Price at the date of such issue
or sale, the number of shares of Common Stock that immediately prior to such
issuance the Warrant Holder shall have been entitled to purchase pursuant to
this Warrant shall be increased to the greater of (i) that number of shares of
Common Stock that immediately prior to such issuance the Warrant Holder shall
have been entitled to purchase pursuant to this Warrant multiplied by a
fraction, the numerator of which is the Exercise Price and the denominator of
which is such consideration per share, and (ii) the number of shares of Common
Stock otherwise calculated under this Section 12.1. Such adjustment shall be
made whenever such rights, options or warrants are issued, and shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights, options, or warrants provided that
this Section 12.1(b) shall expire and be of no force and effect on or after
April 1, 1998.
(c) In case the Company shall distribute to holders of its shares of Common
Stock evidences of its indebtedness or assets (including cash dividends or other
cash distributions) or rights, options, or warrants, or convertible or
exchangeable securities containing the right to subscribe for or purchase shares
of Common Stock (excluding those referred to in paragraph (b) above), then in
each case the number of Warrant Shares thereafter purchasable upon the exercise
of each Warrant shall be determined by multiplying the number of Warrant Shares
theretofore purchasable upon the exercise of each Warrant by a fraction, of
which the numerator shall be the then current market price per share of Common
Stock (as determined in accordance within paragraph (e) below on the date of
such distribution, and of which the denominator shall be the then current market
price per share of Common Stock, less the then fair value (as determined in good
faith by the Board of Directors of the Company) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights,
options, or warrants, or of such convertible or exchangeable securities
applicable to one share of Common Stock. Such adjustment shall be made whenever
any such distributions made, and shall become effective on the date of
distribution retroactive to the record date for the determination of
stockholders entitled to receive such distribution.
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In the event of distribution by the Company to holders of its shares of
Common Stock of stock of a subsidiary or securities convertible into or
exercisable for such stock, then in lieu of an adjustment in the number of
Warrant Shares purchasable upon the exercise of each Warrant, the Warrant
Holder, upon the exercise thereof at any time after such distribution, shall be
entitled to receive from the Company, such subsidiary, or both, as the Company
shall determine, the stock or other securities to which such Warrant Holder
would have been entitled if such Warrant Holder had exercised such Warrant
immediately prior thereto regardless of whether the Warrants are exercisable at
such time, all subject to further adjustment as provided in this subsection
12.1; provided, however, that no adjustment in respect of dividends or interest
on such stock or other securities shall be made during the term of a Warrant or
report the exercise of a Warrant; provided further, that this Section 12.1(c)
shall expire and be of no force and effect on or after April 1, 1998.
(d) In case the Company shall sell and issue shares of Common Stock (other
than pursuant to rights, options, warrants, or convertible securities initially
issued before the date of this Agreement) or rights, options, warrants, or
convertible securities containing the right to subscribe for or purchase shares
of Common Stock (excluding shares, rights options, warrants, or convertible
securities issued in any of the transactions described in paragraphs (a), (b) or
(c) above) at a price per share of Common Stock (determined, in the case of such
rights, options, warrants or convertible securities, by dividing (w) the total
of the amount received or receivable by the Company (determined as provided
below) in consideration of the sale and issuance of such rights, options,
warrants, or convertible securities, by (x) the total number of shares of Common
Stock covered by such rights, options, warrants, or convertible securities)
lower than the Exercise Price in effect immediately prior to such sale and
issuance then (i) the Exercise in effect immediately prior to such issuance
shall immediately be reduced to the price that is equivalent to such
consideration received by the Company upon such issuance (ii) the number of
Warrant Shares thereafter purchasable upon the exercise of the Warnings shall be
increased in direct proportion to the increase in the number of shares of Common
Stock outstanding on a fully diluted basis immediately prior to such issuance;
provided that if such shares of Common Stock, options or other convertible
securities (other than Excluded Stock) are issued for consideration of per share
less than the Exercise Price at the date of such issue or sale, the number of
shares of Common Stock that immediately prior to such issuance the Warrant
Holder shall have been entitled to purchase pursuant to this Warrant shall be
increased to the greater of (i) that number of shares of Common Stock that
immediately prior to such issuance the Warrant Holder shall have been entitled
to purchase pursuant to this Warrant multiplied by a fraction, the numerator of
which is the Exercise Price and the denominator of which is such consideration
per share, and (ii) the number of shares of Common Stock otherwise calculated
under this Section 12.1. Such adjustment shall be made successively whenever
such as issuance is made provided that this Section 12.1(d) shall expire and be
of no force and effect on or after April 1, 1998. For the purposes of such
adjustments, the consideration received or receivable by the Company for rights,
options, warrants, or convertible securities shall be deemed to
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be the consideration received by the Company for such rights, options, warrants,
or convertible securities, plus the consideration or premiums stated in such
rights, options, warrants, or convertible securities to be paid for the shares
of Common Stock covered thereby. In case the Company shall sell and issue
shares of Common Stock, or rights, options, warrants, or convertible securities
containing the right to subscribe for or purchase shares of Common Stock, for a
consideration consisting, in whole or in part, of property other than cash or
its equivalent then in determining the "price per share of Common Stock" and the
"consideration received or receivable by the Company" for purposes of the first
sentence of this paragraph (d) the Board of Directors shall determine, in its
discretion, the fair value of said property.
(e) For the purpose of any computation under paragraph (b), (c), and (d) of
this Section, the current market price per share of Common Stock at any date
shall be the average of the daily closing prices of the Company's Common Stock,
for five consecutive trading days ending one trading day before the date of such
computation. The closing price for each day shall be the last such reported
sales price regular way or, in case no such reported sale takes place on such
day, the average of the closing bid and asked prices regular way for such day,
in each case on the principal national securities exchange on which the shares
of Common Stock are listed or admitted to trading or, if not listed or admitted
to trading, the average of the closing bid and asked prices of the Common Stock
in the over-the-counter market as reported by NASDAQ or any comparable system.
In the absence of one or more such quotations, the Board of Directors of the
Company shall determine the current market price in good faith, on the basis of
such quotations as it considers appropriate. Notwithstanding the foregoing, for
the purpose of any calculation under paragraph (d) above (A) with respect to any
issuance of options under the Company's employee or director compensation stock
option plans as in effect or as adopted by the Board of Directors of the Company
on the date hereof, the term "current market price", in such instances, shall
mean the fair market price on the date of the issuance of any such option
determined in accordance with the Company's employee compensation stock option
plans as in effect or adopted by the Board of Directors of the Company on the
date hereof, and (B) with respect to any issuances of Common Stock (or rights,
options, warrants or convertible securities containing the right to subscribe
for or purchase shares of Common Stock) in connection with bona fide corporate
transactions (other than issuances in such transactions for cash or similar
consideration), the term "fair market price" shall mean the fair market price
per share as determined in arm's-length negotiations by the Company and such
other parties (other than affiliates or subsidiaries of the Company) to such
transactions as reflected in the definitive documentation with respect thereto,
unless such determination is not reasonably related to the closing market price
on the date of such determination.
(f) In any case in which this Section 12.1 shall require that any
adjustment in the number of Warrant Shares be made effective as of immediately
after a record date for a specified event, the Company may elect to defer until
the occurrence of the event the issuing to the holder of any Warrant exercised
after that record date the shares of Common Stock and other securities of the
Company, if any,
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issuable upon the exercise of any Warrant over and above the shares of Common
Stock and other securities of the Company, if any, issuable upon the exercise of
any Warrant prior to such adjustment; provided, however, that the Company shall
deliver to such Warrant Holder a due ▇▇▇▇ or other appropriate instrument
evidencing the holder's right to receive such additional shares or securities
upon the occurrence of the event requiring such adjustment.
(g) No adjustment in the number of Warrant Shares purchasable hereunder
shall be required unless such adjustment would require an increase or decrease
or at least one percent (1%) in the number of Warrant Shares purchasable upon
the exercise of each Warrant; provided, however, that any adjustments which by
reason of this paragraph (g) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
shall be made to the nearest one-thousandth of a share.
(h) Whenever the number of Warrant Shares purchasable upon the exercise
of each Warrant is adjusted, as herein provided, the Warrant Price payable upon
the exercise of each Warrant shall be adjusted by multiplying such Warrant 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 such Warrant
immediately prior to such adjustment, and of which the denominator shall be the
number of Warrant Shares purchasable immediately.
(i) No adjustment in the number of Warrant Shares purchasable upon the
exercise of each Warrant need be made under paragraphs (b), (c) and (d) if the
Company issues or distributes to each Warrant Holder the rights, options,
warrants, or convertible or exchangeable securities, or evidences of
indebtedness or assets referred to in those paragraphs which each Warrant Holder
would have been entitled to receive had the Warrants been exercised prior to the
happening of such event of the record date with respect thereto regardless of
whether the Warrants are exercisable at the time of the happening of such event
or at the time of any record date with respect thereto. No adjustment need be
made for a change in the par value of the Warrant Shares.
(j) For the purpose of this Section 12.1, the terms "shares of Common
Stock" shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassifications of such shares consisting
solely of changes in par value, or from par value to no par value, or from no
par value to par value. In the event that at any time, as a result of an
adjustment made pursuant to paragraph (a) above, the Warrant Holders shall
become entitled to purchase any securities of the Company other than shares of
Common Stock, thereafter the number of such other securities so purchasable upon
exercise of each Warrant and the Exercise Price of such securities shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Warrant Shares
contained in paragraphs (a) through (i), inclusive, above and the provisions
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of Section 7 and Section 12.2 through 12.5, inclusive, with respect to the
Warrant Shares, shall apply on like terms to any such other securities.
(k) Upon the expiration of any rights, options, warrants, or conversion or
exchange privileges, if any thereof shall not have been exercised, the Warrant
Price and the number of shares of Common Stock purchasable upon the exercise of
each warrant shall, upon such expiration, be readjusted and shall thereafter be
such as it would have been had it been originally adjusted (or had the original
adjustment not been required, as the case may be) as if (A) the only shares of
Common Stock so issued were the shares of Common Stock, if any, actually issued
or sold upon the exercise of such rights, options, warrants, or conversion or
exchange rights and (B) such shares of Common Stock, if any, were issued or sold
for the consideration actually received by the Company upon such exercise plus
the aggregate consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants, or conversion or
exchange rights whether or not exercised; provided, however, that no such
readjustment shall have the effect of increasing the Warrant Price or decreasing
the number of Warrant Shares by an amount in excess of the amount of the
adjustment initially made with respect to the issuance, sale or grant of such
rights, options, warrants, or conversion or exchange rights.
(l) In addition to the adjustments set forth above, the Exercise Price
shall be immediately reduced and the number of Warrant Shares shall be
immediately increased, in each case, on a pari passu basis with the conversion,
exercise, or strike price of any other derivative securities of the Company
whether now outstanding or hereafter issued.
12.1 VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option,
at any time during the term of the Warrants, reduce the then current Exercise
Price to any amount determined appropriate by the Board of Directors of the
Company.
12.3. NOTICE OF ADJUSTMENT. When the number of Warrant Shares purchasable
upon the exercise of each Warrant or the Exercise Price of such Warrant Shares
is adjusted, as herein provided, the Company shall promptly mail by first class,
postage prepaid to each Warrant Holder notice of such adjustment or adjustments
and a certificate of a firm of independent public accountants selected by the
Board of Directors of the Company (who may be the regular accountants employed
by the Company) setting forth the number of Warrant Shares purchasable upon the
exercise of each Warrant and the Exercise Price of such Warrant Shares after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
Such certificate, absent manifest error, shall be conclusive evidence of the
correctness of such adjustment.
12.4 PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In
case of any consolidation of the Company with or merger of the Company into
another person or in case of any sale, transfer, or lease to another person of
all of or substantially all
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the assets of the Company, the Company or such successor or purchaser, as
the case may be, shall execute with each Warrant Holder an agreement that
each Warrant Holder shall have the right thereafter upon payment of the
Exercise Price in effect immediately prior to such action to purchase upon
exercise of each Warrant the kind and amount of shares and other securities
and property which the Warrant Holder would have owned or have been
entitled to receive after the happening of such consolidation, merger,
sale, transfer, or lease had such Warrant been exercised immediately prior
to such action regardless of whether the Warrants are exercisable at the
time of such action. Such agreement shall provide for adjustments, which
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 12. The provisions of this Section 12.4 shall
similarly apply to successive consolidations, mergers, sales, transfers, or
leases.
12.5. STATEMENT ON WARRANTS. Even though Warrants heretofore or
hereafter issued may continue to express the same price and number and kind
of shares as are stated in the Warrants initially issuable pursuant to this
Warrant Agreement, the parties understand and agree that such Warrants will
represent rights consistent with any adjustments in the Exercise Price or
the number or kind of shares purchasable upon the exercise of the Warrants.
13. FRACTIONAL INTERESTS. The Company shall not be required to issue
fractional Warrant Shares on the exercise of Warrants. If more than one Warrant
shall be presented for exercise in full at the same time by the same Warrant
Holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 13,
be issuable on the exercise of any Warrant (or specified portion, thereof), the
Company shall pay an amount in cash equal to the closing price for one share of
the Common Stock on the trading day immediately preceding the date the Warrant
is present for exercise, multiplied by such fraction.
14. REGISTRATION UNDER THE SECURITIES ACT OF 1933. ▇▇▇▇▇▇ represents and
warrants to the Company that it will not dispose of the Warrant or Warrant
Shares except pursuant to (i) an effective registration statement, or (ii) an
applicable exemption from registration under the Securities Act of 1933 (the
"Act"). In connection with any sale by ▇▇▇▇▇▇ pursuant to clause (ii) of the
preceding sentence, it shall furnish to the Company an opinion of counsel
reasonably satisfactory to the Company to the effect that such exemption from
registration is available in connection with such sale.
15. CERTIFICATE TO BEAR LEGENDS. The Warrants shall be subject to a
stop-transfer order and the certificate or certificates therefor shall bear the
following legend by which each Warrant Holder shall be bound.
"THE WARRANTS REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY OTHER STATE. THE
WARRANTS REPRESENTED HEREBY AND THE
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SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE TRANSFERRED, EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, OR (ii) AN APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT. ANY SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE
ACCOMPANIED BY AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
TO THE EFFECT THAT SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN
CONNECTION WITH SUCH SALE."
The Warrant Shares or other securities issued upon exercise of the Warrants
shall, unless issued pursuant to an effective registration statement, be subject
to a stop-transfer order and the certificate or certificates evidencing any such
Warrant Shares or securities shall bear the following legend by which the
Warrant Holder thereof shall be bound.
"THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE TRANSFERRED, EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, OR (ii) AN APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT. ANY SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE
ACCOMPANIED BY AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
TO THE EFFECT THAT SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN
CONNECTION WITH SUCH SALE."
16. REGISTRATION RIGHTS. The Warrant Shares shall be covered by and
subject to the registration rights set forth in Section 4.1.11 of the Note
Purchase Agreement.
17. NO RIGHTS AS STOCKHOLDERS: NOTICE TO WARRANT HOLDERS. Nothing
contained in this Warrant Agreement or in any of the Warrants shall be construed
as conferring upon the Warrant Holders or their transferees the right to vote or
to receive dividends or to consent or to receive notice as stockholders in
respect of any meeting of stockholders for the election of directors of the
Company or any other matter, or any rights whatsoever as stockholders of the
Company. If, however, at any time prior to the expiration of the Warrants and
prior to their exercise, any of the following events shall occur:
(a) the Company shall declare any dividend payable in any securities
upon its shares of Common Stock or make any distribution (other than a cash
dividend) to the holders of its shares of Common Stock; or
(b) the Company shall offer to the holders of its shares of Common
Stock any additional shares of Common Stock or securities convertible into
or exchangeable for the shares of Common Stock or any right to subscribe to
or purchase any thereof; or
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(c) a dissolution, liquidation, or winding up of the Company (other
than in connection with a consolidation, merger, sale, transfer, or lease
of all or substantially all of its property, assets, and business as an
entirety) shall be proposed.
then in any one or more of said events the Company shall give notice in writing
of such event to the Warrant Holders as provided in Section 20 hereof, with such
notice to be completed at least 15 days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, or subscription rights,
or for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. Failure to
provide or receive such notice or any defect therein or in the mailing thereof
shall not affect the validity of any action taken in connection with such
dividend, distribution, or subscription rights, or such proposed dissolution,
liquidation, or winding up.
18. EXPENSES. The Company shall pay all legal and other reasonable
out-of-pocket expenses of the Warrant Holders and of their counsel (up to a
maximum of $25,000). The Company agrees to reimburse ▇▇▇▇▇▇ upon demand for its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, review, negotiation, execution, and delivery of this Warrant
Agreement and all other related documents.
19. RIGHT TO INFORMATION. The Company, in accordance with Section 16(c)
above, will provide to all Warrant Holders and to all holders of Warrant Shares,
on a timely basis, copies of all documents and reports delivered to its
shareholders.
20. NOTICES. Any notice pursuant to this Warrant Agreement to be given or
made by the holder of any Warrant or Warrant Shares to or on the Company shall
be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows:
EqualNet Holding Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Notices or demands authorized by this Warrant Agreement to be given or made to
or on the Warrant Holder of any Warrant or Warrant Shares shall be sufficiently
given or made (except as otherwise provided in this Warrant Agreement) if sent
by registered mail, return receipt requested, postage prepaid, addressed to such
Warrant Holder at the address of such Warrant Holder as shown on the Warrant
Register or the Common Stock Register, as the case may be.
21. GOVERNING LAW. THIS WARRANT AGREEMENT, THE WARRANTS AND ALL RELATED
DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER AND SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. ANY DISPUTE HEREUNDER OR UNDER THE
WARRANTS OR RELATED DOCUMENTS SHALL BE DETERMINED EXCLUSIVELY IN ACCORDANCE WITH
SECTION 8.7 OF THE NOTE PURCHASE AGREEMENT.
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22. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Holders may
from time to time supplement or amend this Warrant Agreement in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Holder may deem necessary or desirable and which shall
not be inconsistent with the provisions of the Warrants and which shall not
adversely affect the interests of the Warrant Holders. Any amendment to this
Warrant Agreement may be effected with the consent of Warrant Holders of at
least a majority of the total then outstanding Warrants (for this purpose
Warrant Shares shall be deemed to be Warrants in the proportion that Warrant
Shares are then issuable upon the exercise of Warrants); provided that any
amendment which shall have the effect of materially adversely affecting the
interests of any Warrant Holder shall not be effective with respect to such
Warrant Holder if such Warrant Holder shall not have consented thereto.
23. SURVIVAL OF COVENANTS. All covenants and agreements made herein
shall survive the execution and delivery of this Warrant Agreement and the
Warrants and shall remain in force and effect until the Expiration Date of all
Warrants.
24. SUCCESSORS. All representations and warranties of the Company and
all covenants and agreements of this Warrant Agreement by or for the benefit of
the Company or the Warrant Holders shall bind and inure to the benefit of their
respective successors and assigns hereunder.
25. BENEFITS OF THIS WARRANT AGREEMENT. Nothing in this Warrant
Agreement shall be construed to give to any person or corporation other than the
Company and the Warrant Holders, any legal or equitable right, remedy, or claim
under this Warrant Agreement, but this Warrant Agreement shall be for the sole
and exclusive benefit of the Company and the holders of the Warrants and Warrant
Shares.
26. CAPTIONS. The captions of the sections and subsections of this
Warrant Agreement have been inserted for convenience and shall have no
substantive effect.
27. COUNTERPARTS. This Warrant Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but such counterparts together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed on the day, month and year first above written.
EQUALNET HOLDING CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Chief Operating Officer
------------------------------
▇▇▇▇▇▇ GROUP LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
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EXHIBIT A
TO
WARRANT AGREEMENT
FORM OF
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY OTHER STATE. THE WARRANTS
REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE
TRANSFERRED, EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, OR (ii) AN APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT. ANY SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST
BE ACCOMPANIED BY AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
TO THE EFFECT THAT SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION
WITH SUCH SALE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS AND COMMON STOCK UNDERLYING SUCH
WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE
WARRANT AGREEMENT REFERRED TO HEREIN.
No. 400,000 Warrants
________________
VOID AFTER 5:00 P.M. NEW YORK, TIME
ON MARCH 4, 2003
EQUALNET HOLDING CORP.
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received ▇▇▇▇▇▇ GROUP, LLC the registered
holder hereof or registered assigns (the "Warrant Holder"), is the owner of the
number of the Warrants set forth above, each of which entitles the owner thereof
to purchase at any time from 9:00 A.M., New York time, on March 5, 1998 until
5:00 P.M., New York time on March 4, 2003 one fully paid and nonassessable share
of the common stock (subject to adjustment), par value $0.01 per share (the
"Common Stock"), of EQUALNET HOLDING CORP., a Texas corporation (the "Company"),
at the exercise price of $1.00 per share, subject to adjustment and limitation
as described in the Warrant Agreement referred to below (the "Exercise Price").
The Warrant Holder may pay the Exercise Price in cash, or by certified or
official bank check or make a net exercise for Net Warrant Shares as described
in the Warrant Agreement.
This Warrant Certificate is subject to, and entitled to the benefits of,
all of the terms, provisions and conditions of an agreement dated March 5, 1998
(the "Warrant Agreement") between the Company and ▇▇▇▇▇▇ Group, LLC, which
Warrant Agreement is hereby incorporated herein by
-1-
reference and made a part hereof and to which Warrant Agreement reference is
hereby made for a full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Company and the Warrant
Holders of the Warrant Certificates. Copies of the Warrant Agreement are on file
at the principal office of the Company.
The Warrant Holder hereof may be treated by the Company and all other
persons dealing with this Warrant Certificate as the absolute owner hereof for
any purpose and as the person entitled to exercise the rights represented hereby
or to the transfer hereof on the books of the Company, any notice to the
contrary notwithstanding, and until such transfer on such books, the Company may
treat the Warrant Holder hereof as the owner for all purposes.
The Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the Warrant Holder to purchase a like aggregate
number of shares of Common Stock as the Warrants evidenced by the Warrant
Certificate or Warrant Certificates surrendered entitled to such Warrant Holder
to purchase. If this Warrant Certificate shall be exercised in part, the Warrant
Holder shall be entitled to receive upon surrender hereof, another Warrant
Certificate or Warrant Certificates for the number of whole Warrants not
exercised.
No fractional shares of Common Stock will be issued upon the exercise of
any Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Warrant Agreement.
Neither the Warrants nor the Warrant Certificate entitles any Warrant
Holder hereof to any of the rights of a stockholder of the Company.
THIS WARRANT SHALL BE DEEMED TO BE CONTRACT MADE UNDER AND SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
-2-
IN WITNESS WHEREOF, the Company has caused the signature of its President
and Secretary to be printed hereon.
EQUALNET HOLDING CORP.
By:
--------------------------
President
ATTEST:
By:
--------------------------
Secretary
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