Exhibit 1.4
WARRANT AGREEMENT
DATE: May ___, 2000
PARTIES: ACT Teleconferencing, Inc. American Securities Transfer & Trust, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RECITALS:
A. ACT Teleconferencing, Inc., a Colorado corporation (the "Company"),
proposes to issue 400,000 common stock purchase warrants (the "Warrants")
evidencing the right to purchase an aggregate of 400,000 authorized but
previously unissued shares of common stock, no par value, of the Company (the
"Common Stock"). The Warrants would be issued in connection with the Company's
issuance of 800,000 shares of Common Stock in connection with the Company's
offering described in its Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on March 10, 2000 and amended on May 2,
2000, May 22, 2000, and May 26, 2000 (the "Offering").
B. The Company desires American Securities Transfer & Trust, Inc. (the
"Warrant Agent") to act on its behalf, and the Warrant Agent desires so to act,
in connection with the issuance, registration, transfer, exchange, and exercise
of the Warrants.
AGREEMENT:
The Company and the Warrant Agent, each intending to be legally bound,
hereby covenant and agree under this Warrant Agreement (this "Agreement") as
follows:
ARTICLE I.
WARRANT AGENT AND CERTIFICATES
SECTION 1.1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the
Warrant Agent to act as the agent for the Company, and the Warrant Agent hereby
accepts the agency established in this Agreement and agrees to perform its
agency duties under the terms and conditions of this Agreement.
SECTION 1.2. WARRANT CERTIFICATES. The Company shall execute and deliver to
the Warrant Agent certificates which the Company has authorized to represent the
Warrants (the "Certificates"). The Certificates shall be substantially as
provided in Exhibit A to this Agreement and may have the legends, summaries, or
endorsements printed as the Company may deem appropriate or as may be required
to comply with any law or with any rule or regulation relating to listing of the
Warrants on the NASDAQ system, including the Nasdaq SmallCap or National Market,
on any stock exchange, or to conform to usage. The Certificates shall be dated
with the date of their issuance.
SECTION 1.3. EXECUTION OF WARRANT CERTIFICATES. The Certificates shall be
executed on behalf of the Company by a duly authorized officer of the Company,
either manually or by facsimile signature. The Certificates shall be manually
countersigned by the Warrant Agent and shall not be valid for any purpose unless
so countersigned. Any Certificate may be signed on behalf of the Company by the
person who at the actual date of the signing of the Certificate was the proper
officer of the Company, although at the date of issuance of the Certificate any
person has ceased to be the officer of the Company.
ARTICLE II.
EXERCISE OF WARRANTS
SECTION 2.1. EXERCISE. Any or all of the Warrants represented by each
Certificate may be exercised by the holder on or before 5:00 p.m., Denver time,
on May ___, 2005 unless extended by the Company, by surrender of the Certificate
with the Purchase Form, which is printed on the reverse of the Certificate (or a
reasonable facsimile of the Certificate), duly executed by the holder, to the
Warrant Agent at its principal office in Lakewood, Colorado, accompanied by
payment, in cash or by certified or official bank check payable to the order of
the Company, in an amount equal to the product of the number of shares of Common
Stock issuable upon exercise of the Warrant represented by the Certificate,
multiplied by the exercise price of $__________, as adjusted under the
provisions of Article III of this Agreement (the price as so adjusted is called
the "Purchase Price"). The holder shall be entitled to receive the number of
fully paid and nonassessable shares of Common Stock, as so adjusted, at the time
of the exercise.
SECTION 2.2. TIME OF EXERCISE. Each exercise of Warrants shall be deemed to
have been effective immediately before the close of business on the business day
on which the Certificate relating to the Warrants shall have been surrendered to
the Warrant Agent as provided in Section 2.1, and at the time the person or
persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon the exercise as provided in Section 2.3
shall be deemed to have become the holder(s) of record.
SECTION 2.3. COMMON STOCK ISSUANCE; NO FRACTIONAL SHARES. As soon as
practicable after the exercise of any Warrant or within ten (10) days after
receipt by the Company of the notice of exercise under Section 2.1, the Company
at its expense (including the payment by it of any applicable issue taxes) will
cause to be issued in the name of and delivered to the holder or as the holder
(upon payment by the holder of any applicable transfer taxes) may direct,
(a) a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which the holder shall be entitled
upon the exercise plus, instead of any fractional share to which the holder
would otherwise be entitled, an amount in cash equal to the fraction
multiplied by the then current value of a share of Common Stock. The
current value to be determined as follows:
(i) if the Common Stock shall be listed or admitted to unlisted
trading privileges on any single national securities exchange, then
the current value shall be computed on the basis of the last reported
sale price of the Common Stock on the
-2-
exchange on the last business day before the date of the exercise of
the Warrant upon which a sale shall have been effected;
(ii) if the Common Stock shall not be so listed or admitted to
unlisted trading privileges and bid and asked prices therefor in the
over-the-counter market shall be reported by NASDAQ, including the
Nasdaq SmallCap or National Market, then the current value shall be
computed on the basis of the last reported sale valuation method or,
if the method is not then used by NASDAQ, the average of the closing
bid and asked prices on the last business day before the date of the
exercise of the Warrant as so reported;
(iii) if the Common Stock shall be listed or admitted to unlisted
trading privileges on more than one national securities exchange or
one or more national securities exchanges and in the over-the-counter
market, then the current value shall be deemed to be the higher number
calculated, if different as a result of calculation under the
applicable method(s) described above in this Section; or
(iv) if the Common Stock shall not be so listed or admitted to
unlisted trading privileges and the bid and asked prices shall not be
so reported, then the current value shall be computed on the basis of
the book value of Common Stock as of the close of business on the last
day of the month immediately preceding the date upon which the Warrant
was exercised as determined by the Company; and
(b) in case the exercise includes only part of the Warrants
represented by any Certificate, a new Certificate or Certificates of like
tenor, calling in the aggregate on the face or faces of the Certificates
for the number of shares of Common Stock equal (without giving effect to
any adjustment therein) to the number of the shares called for on the face
of the Certificate minus the number of the shares designated by the holder
for the exercise as provided in Section 2.1. Warrants represented by a
properly assigned Certificate may be exercised by a new holder without
first having a new Certificate issued.
SECTION 2.4. EXTENSION OF EXERCISE PERIOD; CHANGE OF EXERCISE PRICE. The
Company may, upon notice given to the Warrant Agent, and without the consent of
the holders of the Certificates, (a) reduce the Purchase Price during all or any
portion of the originally stated exercise period or (b) extend the period over
which the Warrants are exercisable beyond May ___, 2005 and increase or decrease
the Purchase Price for any period the Warrant exercise period is extended. If
there is an extension of the exercise period or a change in the Purchase Price,
the Company must provide the Warrant Agent and the Warrant holders of record
notice of the extension of the exercise period, specifying the time to which the
exercise period is extended or specifying the new Purchase Price and the periods
for which the new Purchase Price is in effect, within a reasonable time before
the date the extension or new Purchase Price is to take effect. The reasonable
time shall be commercially reasonable and consistent with applicable securities
laws and regulations.
-3-
ARTICLE III.
ANTIDILUTION PROVISIONS
SECTION 3.1. PURCHASE PRICE ADJUSTMENT.
(a) The Purchase Price will be adjusted if:
(i) the Company pays any dividends on any class of stock of the
Company payable in Common Stock or securities convertible into Common
Stock;
(ii) the Company subdivides its then outstanding shares of Common
Stock into a greater number of shares; or
(iii) the Company combines outstanding shares of Common Stock, by
reclassification or otherwise;
then, the Purchase Price in effect immediately before the event (until
adjusted again under this Agreement) shall be adjusted immediately after
the event to a price (calculated to the nearest full cent) determined by
dividing (A) the number of shares of Common Stock outstanding
immediately before the event, multiplied by the then existing Purchase
Price, by (B) the total number of shares of Common Stock outstanding
immediately after the event (including the maximum number of shares of
Common Stock issuable in respect of any securities convertible into
Common Stock). The resulting quotient shall be the adjusted Purchase
Price per share.
(b) No adjustment of the Purchase Price shall be made if the amount
of the adjustments shall be less than $.05 per share. However, any
adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time and together with the next
subsequent adjustment which, together with any adjustment(s) carried
forward, shall amount to not less than $.05 per share.
SECTION 3.2. SHARE ADJUSTMENT. Upon each adjustment of the Purchase Price
pursuant to Section 3.1 above, the registered holder of each Warrant shall
(until another adjustment) be entitled to purchase at the adjusted Purchase
Price the number of shares, calculated to the nearest full share, obtained by
multiplying the number of shares specified in the Warrant (as adjusted as a
result of all adjustments in the Purchase Price in effect before the adjustment)
by the Purchase Price in effect before the adjustment and dividing the product
so obtained by the adjusted Purchase Price.
SECTION 3.3. ADJUSTMENT NOTICE. Upon any adjustment of the Purchase Price
and an increase or decrease in the number of shares of Common Stock purchasable
upon the exercise of the Warrants, then the Company shall within ten (10) days
after the effective date of the adjustment give written notice of the
adjustment, by first class mail, postage prepaid, addressed to each registered
Warrant holder at the address of the Warrant holder as shown on the books of the
Company. The notice shall state the adjusted Purchase Price and the increased or
decreased
-4-
number of shares purchasable upon the exercise of the Warrants, providing
reasonable detail of the method of calculation and the facts upon which the
calculation is based.
SECTION 3.4. REORGANIZATION, RECLASSIFICATION, MERGER, ETC. If at any time
while any Warrant is outstanding, there is any capital reorganization or
reclassification of the capital stock of the Company (other than the issuance of
any shares of Common Stock in subdivision of outstanding shares of Common Stock
by reclassification or otherwise and other than a combination of shares provided
for in Section 3.1 of this Agreement); any consolidation or merger of the
Company with another corporation; or any sale, conveyance, lease, or other
transfer by the Company of all or substantially all of its property to any other
corporation, the holder of any Warrant, during the remainder of the period the
Warrant is exercisable, shall be entitled to receive, upon payment of the
Purchase Price, the number of shares of stock or other securities or property of
the Company, or of the successor corporation resulting from the consolidation or
merger, or of the corporation to which the property of the Company has been
sold, conveyed, leased, or otherwise transferred to which the Common Stock (and
any other securities and property) of the Company would have been entitled upon
the capital reorganization, reclassification of capital stock, consolidation,
merger, sale, conveyance, lease, or other transfer if the Warrant had been
exercised immediately before the capital reorganization, reclassification of
capital stock, consolidation, merger, sale, conveyance, lease, or other
transfer. An appropriate adjustment (as determined by the board of directors of
the Company) shall be made consistent with the provisions in this Agreement
regarding the rights and interests of the Warrant holders (including the
adjustment of the Purchase Price and the number of shares issuable upon the
exercise of the Warrants) as near as may be reasonably practicable, in relation
to any shares or other property deliverable upon the exercise of the Warrants as
if the Warrants had been exercised immediately before the capital
reorganization, reclassification of capital stock, consolidation, merger, sale,
conveyance, lease, or other transfer and the Warrant holders had carried out the
terms of the exchange as provided for by the capital reorganization,
reclassification, consolidation, or merger. The Company shall not effect any
capital reorganization, consolidation, merger, or transfer unless, upon or
before the consummation, the successor corporation or the corporation to which
the property of the Company has been sold, conveyed, leased, or otherwise
transferred shall assume by written instrument the obligation to deliver to the
holder of each Warrant the shares of stock, securities, cash, or property
consistent the foregoing provisions.
SECTION 3.5. PRIOR NOTICE. If at any time:
(a) the Company pays any dividend upon its Common Stock payable in
stock or make any distribution (other than cash dividends) to the holders
of its Common Stock;
(b) the Company offers for subscription pro rata to the holders of
its Common Stock any additional shares of stock of any class or any other
rights;
(c) there is any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the Company
with, or sale, conveyance, lease, or other transfer of all or substantially
all of its assets to, another corporation; or
-5-
(d) there is a voluntary or involuntary dissolution, liquidation, or
winding up of the Company;
then the Company shall give prior written notice, by first class mail, postage
prepaid, addressed to each registered Warrant holder at the address of the
Warrant holder as shown on the books of the Company, of the date on which (x)
the books of the Company shall close or a record shall be taken for the stock
dividend, distribution, or subscription rights or (y) the reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up shall take place. The notice shall also specify the date as of which
the holders of the Common Stock of record shall participate in the dividend,
distribution, or subscription rights or shall be entitled to exchange their
Common Stock for securities or other property deliverable upon the
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding up. The written notice shall be given at least twenty
(20) days before the event and not less than twenty (20) days before the record
date or the date on which the Company's transfer books are closed.
SECTION 3.6. COMPANY OBLIGATIONS. The Company will not, by amendment of its
articles 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 performance of any of
the terms of this Agreement or the Certificates, but will at all times in good
faith assist in the carrying out of all the terms. Without limiting the
generality of the foregoing, the Company (a) will take all action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of the stock upon the exercise of all
Warrants from time to time outstanding, and (b) will not (i) transfer all or
substantially all of its properties and assets to any other person or entity, or
(ii) consolidate with or merge into any other entity where the Company is not
the continuing or surviving entity, or (iii) permit any other entity to
consolidate with or merge into the Company where the Company is the continuing
or surviving entity but, in connection with the consolidation or merger, the
Common Stock then issuable upon the exercise of the Warrants shall be changed
into or exchanged for shares or other securities or property of any other entity
unless the other entity acquiring the properties and assets, continuing or
surviving after the consolidation or merger, or issuing or distributing the
shares or other securities or property shall expressly assume in writing and be
bound by all the terms of this Agreement and the Certificates.
SECTION 3.7. RESERVATION OF COMMON STOCK. The Company will at all times
reserve and keep available, solely for issuance and delivery upon the exercise
of the Warrants, all shares of Common Stock issuable upon the exercise of the
Warrants. All the shares shall be authorized and validly issued, fully paid, and
nonassessable. The Company, at its expense, will list on the NASDAQ system,
including the Nasdaq SmallCap or National Market and on each national securities
exchange on which any Common Stock may at any time be listed, subject to
official notice of issuance, and will maintain the listing of the shares of
Common Stock issuable upon the exercise of the Warrants.
SECTION 3.8. REGISTRATION OR EXEMPTION. At all times the Warrants are
exercisable, the Company will use its best efforts, although there can be no
assurance that the Company will be able to do so, (a) to maintain an effective
registration statement under the Securities Act of 1933,
-6-
as amended (the "Act"), covering Common Stock issuable upon exercise of the
Warrants, (b) to amend or supplement the prospectus contained in the
registration statement to the extent necessary to comply with applicable law,
(c) to qualify for exemption from the registration requirements of the Act
the Common Stock issuable upon exercise of the Warrants, and (d) to maintain
exemptions or qualifications in those jurisdictions in which the original
registration statement relating to the Warrants was initially qualified. The
Warrant Agent shall have no responsibility for the maintenance of the
exemptions or qualifications or for liabilities arising from the exercise or
attempted exercise of Warrants in jurisdictions where exemptions or
qualifications have not been maintained or are otherwise unavailable.
ARTICLE IV.
RIGHTS OF WARRANT HOLDERS
SECTION 4.1. NO RIGHTS AS SHAREHOLDERS. The Certificates shall be issued in
registered form only. No Certificate shall entitle the holder to any of the
rights of a holder of shares of Common Stock of the Company, including, without
limitation, the right to vote, to receive dividends and other distributions, or
to receive any notice of, or to attend meetings of holders of Common Stock or
any other proceedings of the Company.
SECTION 4.2. LOSS, THEFT, DESTRUCTION, OR MUTILATION OF WARRANT
CERTIFICATES. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to the Warrant Agent of the loss, theft, destruction, or mutilation
of any Certificate, and (a) in the case of any loss, theft, or destruction, upon
delivery to the Warrant Agent of an indemnity bond in form and amount, and
issued by a bonding company, reasonably satisfactory to the Company, or (b) in
the case of any mutilation, upon surrender to and cancellation by the Warrant
Agent of the Certificate, the Company at its expense will execute and cause the
Warrant Agent to countersign and deliver a new Certificate of like tenor.
SECTION 4.3. TRANSFER AGENT; CANCELLATION OF WARRANT CERTIFICATES;
UNEXERCISED WARRANTS. American Securities Transfer & Trust, Inc. (and any
successor), as transfer agent (the "Transfer Agent"), is hereby irrevocably
authorized and directed at all times to reserve the number of authorized and
unissued shares of Common Stock as shall be sufficient to permit the exercise in
full of all Warrants from time to time outstanding. The Company will keep a copy
of this Agreement on file with the Transfer Agent. The Warrant Agent, and any
successor, is hereby irrevocably authorized to requisition from the Transfer
Agent certificates for shares of Common Stock required for exercise of Warrants.
The Company will supply the Transfer Agent with duly executed certificates for
shares of Common Stock and will make available any cash required in settlement
of fractional share interests. All Certificates surrendered upon the exercise or
redemption of Warrants shall be cancelled by the Warrant Agent and shall be
delivered to the Company. The cancelled Certificates, with the Purchase Form on
the reverse duly filled in and signed, shall constitute conclusive evidence of
the numbers of shares of Common Stock which were issued upon exercises of
Warrants. After the last day on which the Warrants are exercisable (provided in
Section 2.1 above), the Warrant Agent shall promptly certify to the Company the
aggregate number of Warrants then outstanding and unexercised. No shares of
Common Stock
-7-
shall be reserved for Warrants not exercised before the time and date
identified in Section 2.1 above, the last time and date at which Warrants may
be exercised.
ARTICLE V.
TRANSFER AND EXCHANGE OF WARRANT CERTIFICATES
SECTION 5.1. WARRANT REGISTER; TRANSFER OR EXCHANGE OF WARRANT
CERTIFICATES. The Warrant Agent shall keep at its principal office a register
(the "Warrant Register") in which, under the reasonable regulations as the
Company may prescribe, provisions shall be made for the registration of
transfers and exchanges of Certificates. Upon surrender for transfer or exchange
of any Certificates, properly endorsed, to the Warrant Agent, the Warrant Agent
at the Company's expense will issue and deliver to or upon the order of the
holder a new Certificate or Certificates of like tenor, in the name of the
holder or as the holder (upon payment by the holder of any applicable transfer
taxes) may direct, calling in the aggregate on the face or faces of the
Certificate for the number of shares of Common Stock called for on the face of
the Certificate so surrendered. Any Certificate surrendered for transfer or
exchange shall be cancelled by the Warrant Agent and shall be delivered to the
Company.
SECTION 5.2. IDENTITY OF WARRANT HOLDERS. Until a Certificate is
transferred in the Warrant Register, the Company and the Warrant Agent may treat
the person in whose name the Certificate is registered as the absolute owner and
of the Warrants represented by the Certificate for all purposes, despite any
notice to the contrary, except that, if and when any Certificate is properly
assigned in blank, the Company and the Warrant Agent may (but shall not be
obligated to) treat the bearer as the absolute owner of the Certificate and of
the Warrants represented by the Certificate for all purposes, despite any notice
to the contrary.
ARTICLE VI.
WARRANT AGENT
SECTION 6.1. TAXES. The Company will promptly pay to the Warrant Agent, or
make provision satisfactory to the Warrant Agent for the payment of, all taxes
and charges that may be imposed by the United States or any State upon the
Company or the Warrant Agent upon the transfer or delivery of shares of Common
Stock upon the exercise of Warrants. However, the Company shall not be obligated
to pay any tax imposed in connection with any transfer involved in the delivery
of a certificate for shares of Common Stock in any name other than that of the
registered holder of the Certificate surrendered in connection with the purchase
of the Certificate.
SECTION 6.2. WARRANT AGENT REPLACEMENT.
(a) The Warrant Agent may resign its duties and be discharged from
all further duties and liabilities under this Agreement after giving thirty
(30) days notice in writing to the Company. Shorter notice may be given if
the Company agrees in writing. The Company may discharge the Warrant Agent
at any time with or without reason, effective upon thirty (30) days written
notice to the Warrant Agent or a shorter period if the Warrant Agent agrees
in writing. If the office of Warrant Agent becomes vacant by resignation,
discharge, incapacity to act, or otherwise, the Company shall appoint in
writing a new
-8-
Warrant Agent, which maintains an office in Colorado. If the Company
fails to make the appointment within a period of thirty (30) days after
it has been notified in writing of the resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the holder of a
Certificate, then the holder of any Certificate may apply to any court
of competent jurisdiction for the appointment of a new Warrant Agent.
Any new Warrant Agent, whether appointed by the Company or by a court,
shall be a corporation organized and doing business under the laws of
the United States or one of its states, of good standing, and maintains
an office in Colorado, which is authorized under the laws to exercise
corporate trust powers and is under the supervision or examination by
federal or state authority. Any new Warrant Agent appointed under this
Agreement shall execute, acknowledge, and deliver to the Company an
instrument accepting the appointment under this Agreement. The new
Warrant Agent without any further act or deed shall become vested with
all the rights, powers, duties, and responsibilities of the Warrant
Agent under this Agreement as if it had been named as the previous
Warrant Agent. However, if for any reason it becomes necessary or
expedient to have the former Warrant Agent execute and deliver any
further assurance, conveyance, act or deed, the same shall be done and
shall be legally and validly executed and delivered by the former
Warrant Agent. Not later than the effective date of any appointment, the
Company shall file notice with the former Warrant Agent. The Company
shall promptly give notice of any appointment to the holders of the
Certificates by mail to their addresses as shown in the Warrant
Register. Failure to file or give the notice, or any defect in the
notice, shall not affect the legality or validity of the appointment of
the successor Warrant Agent.
(b) Any company resulting from any merger, conversion, or
consolidation to which the Warrant Agent shall be a party, shall be the
successor Warrant Agent under this Agreement without any further act;
provided that if the company would not be eligible for appointment as a
successor Warrant Agent under the provisions of paragraph (a) of this
Section 6.2 the Company shall appoint a new Warrant Agent consistent with
this Section. Any successor Warrant Agent may adopt the prior
countersignature of any predecessor Warrant Agent and deliver Certificates
countersigned and not delivered by the predecessor Warrant Agent or may
countersign Certificates either in the name of any predecessor Warrant
Agent or the name of the successor Warrant Agent.
SECTION 6.3. WARRANT AGENT REMUNERATION. The Company will pay the Warrant
Agent reasonable remuneration for its services as Warrant Agent under this
Agreement and will reimburse the Warrant Agent upon reasonable demand for all
expenditures that the Warrant Agent may reasonably incur in the execution of its
duties under this Agreement.
SECTION 6.4. WARRANT AGENT LIMITATION OF LIABILITIES.
(a) Whenever, in the performance of its duties under this Agreement,
the Warrant Agent determines it is necessary or desirable that any matter
be proved or established, or that any instructions regarding the
performance of its duties under this Agreement be given, before taking any
action under this Agreement, the matter (unless other evidence is
specifically prescribed) may be deemed to be conclusively proved and
-9-
established, or the instructions may be given, by a certificate or
instrument signed by an officer of the Company and delivered to the Warrant
Agent; and the certificate or instrument shall be full authorization to the
Warrant Agent for any action taken in good faith by it under the provisions
of this Agreement in reliance upon the certificate or instrument. However,
in its discretion the Warrant Agent may instead accept other evidence of
the matter or may require further or additional evidence as it may deem
reasonable.
(b) The Warrant Agent shall be liable under this Agreement only for
its own negligence or willful misconduct. The Warrant Agent shall act under
this Agreement solely as agent, and its duties shall be determined solely
by the provisions of this Agreement. The Company agrees to indemnify the
Warrant Agent and save it harmless against any and all liabilities,
including judgments, costs, and counsel fees, for anything done or omitted
by the Warrant Agent in the execution of this Agreement except as a result
of the Warrant Agent's negligence or willful misconduct.
(c) The Warrant Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Certificates (except its countersignature) or be required to verify the
same, but all the statements and recitals are and shall be deemed to have
been made by the Company only.
(d) The Warrant Agent shall not be under any responsibility regarding
the validity or execution of any Certificate (except its countersignature);
nor shall it be responsible for any breach by the Company of any covenant
or condition contained in this Agreement or in any Certificate; nor shall
it be responsible for the making of any adjustment in the Purchase Price,
or number of shares issuable upon exercise of the Certificates or
responsible for the manner, method, or amount of any adjustment or the
facts that would require any adjustment; nor shall it by any act under this
Agreement be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued
under this Agreement or any Certificate or as to whether any shares of
Common Stock or other securities are or will be validly authorized and
issued and fully paid and nonassessable.
SECTION 6.5. AMENDMENT AND MODIFICATION. The Warrant Agent may, without the
consent or concurrence of the holders of the Certificates, join with the Company
in making any changes or corrections in this Agreement that they shall have been
advised by their counsel (a) are required to cure any ambiguity or to correct
any defective or inconsistent provision or clerical omission or mistake or
manifest error contained in this Agreement, (b) add to the obligations of the
Company in this Agreement or surrender any right or power reserved to or
conferred upon the Company in this Agreement, or (c) do not or will not
adversely affect, alter, or change the rights, privileges, or immunities of the
holders of Certificates not provided for under this Agreement; provided,
however, that any term of this Agreement or any Certificate may be changed,
waived, discharged, or terminated by an instrument in writing signed by each
party against which enforcement of the change, waiver, discharge, or termination
is sought, or by which the same is to be performed or observed.
-10-
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. SUCCESSORS AND ASSIGNS. All the covenants and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties.
SECTION 7.2. FURTHER ASSURANCES. The parties will perform, exercise,
acknowledge, and deliver or cause to be performed, executed, acknowledged, and
delivered all further and other acts, instruments, and assurances as may
reasonably be required by the parties to carrying out or perform the obligations
under this Agreement.
SECTION 7.3. NOTICES. Any notice or demand authorized by this Agreement to
be given by the Warrant Agent or the holder of any Certificate to the Company
shall be sufficiently given or made if sent by first class or registered mail,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent) as follows:
ACT TELECONFERENCING, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Any notice or demand authorized by this Agreement to be given by the holder
of any Certificate or by the Company to the Warrant Agent shall be sufficiently
given or made if sent by first class or registered mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
American Securities Transfer & Trust, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SECTION 7.4. GOVERNING LAW. This Agreement and the Certificates are being
delivered in the State of Colorado and shall be construed and enforced
consistent with and governed by the laws of the State.
SECTION 7.5. NO BENEFITS CONFERRED. Nothing in this Agreement expressed or
implied is intended or shall be construed to confer upon any person or
corporation other than the Company, the Warrant Agent, and the holders of the
Certificates including any right, remedy, or claim under this Agreement.
-11-
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as
of the day and year first above written.
ACT TELECONFERENCING, INC.
By
----------------------------------------
Its
---------------------------------------
AMERICAN SECURITIES TRANSFER & TRUST, INC.
By
----------------------------------------
Its
---------------------------------------
-12-
EXHIBIT A
THIS WARRANT CERTIFICATE MAY BE TRANSFERRED SEPARATELY FROM THE COMMON STOCK
CERTIFICATE WITH WHICH IT IS INITIALLY ISSUED
EXERCISABLE ON OR BEFORE, AND VOID AFTER,
5:00 P.M. DENVER TIME, May ___, 2005
No. W - ________ Certificate for ________ Warrants
-----------------------------
-----------------------------
WARRANTS TO PURCHASE COMMON STOCK OF
ACT TELECONFERENCING, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF COLORADO
THIS CERTIFIES that ___________________________________________ or assigns,
is the owner of the number of Warrants provided above, each of which represents
the right to purchase from ACT TELECONFERENCING, INC., a Colorado corporation
(the "Company"), at any time on or before 5:00 p.m., Denver time, May ___,
2005,
upon compliance with and under the conditions in this Certificate and in the
Warrant Agreement, one share (that may be adjusted as referred to below) of the
Common Stock of the Company (the "Shares"), by surrendering this Warrant
Certificate (this "Certificate"), with the Purchase Form on the reverse side
duly executed, at the principal office of American Securities Transfer & Trust,
Inc., or its successor, as warrant agent (the "Warrant Agent"), and by paying in
full, in cash or by certified or official bank check payable to the order of the
Company, the purchase price of $________ per share.
Upon any exercise of less than all the Warrants evidenced by this
Certificate, there shall be issued to the holder a new Certificate for the
Warrants as to which this Certificate was not exercised.
Upon the surrender for transfer or exchange of this Certificate, properly
endorsed, to the Warrant Agent, the Warrant Agent at the Company's expense will
issue and deliver to the order of the holder of this Certificate a new
Certificate(s) of like tenor, in the name of the holder or as the holder (upon
payment by the holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face of this Certificate.
The Certificates are issued only as registered Warrant Certificates. Until
this Certificate is transferred in the Warrant Register, the Company and the
Warrant Agent may treat the person in whose name this Certificate is registered
as the absolute owner of this Certificate and of the Warrants represented by
this Certificate for all purposes, despite any notice to the contrary.
This Certificate is issued under the Warrant Agreement dated as of May ___,
2000, between the Company and the Warrant Agent and is governed under the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions the registered holder of this Certificate consents by acceptance of
this Certificate. Copies of the Warrant Agreement are on file at the principal
office of the Warrant Agent in Denver, Colorado, and may be obtained by writing
to the Warrant Agent.
The number of Shares receivable upon the exercise of the Warrants
represented by this Certificate and the purchase price per share may be adjusted
upon the occurrence of events specified in the Warrant Agreement (which
provisions are contained in Article III of the Warrant Agreement and are hereby
incorporated by reference).
A-1
No fractional Shares of the Company's Common Stock will be issued upon the
exercise of Warrants. As to any final fraction of a share which a holder of
Warrants exercised in the same transaction would otherwise be entitled to
purchase on the exercise, the Company shall pay a cash adjustment instead of the
issuance of any fractional Share.
This Certificate shall not entitle the holder of this Certificate to any of
the rights of a holder of Common Stock of the Company, including, without
limitation, the right to vote, to receive dividends and other distributions, to
exercise any preemptive right, or to receive any notice of, or to attend
meetings of holders of Common Stock or any other proceedings of the Company.
This Certificate shall be void and the Warrants and any rights represented
by this Certificate shall cease unless exercised on or before 5:00 P.M. Denver
time on May ___, 2005, unless extended by the Company.
This Certificate shall not be valid for any purpose until it shall have
been countersigned by the Warrant Agent.
WITNESS the facsimile signatures of the Company's duly authorized officers.
Dated: ACT TELECONFERENCING, INC.
----------------------------
By
----------------------------------
Its
---------------------------------
Attested to:
---------------------------------------
Secretary
COUNTERSIGNED AND REGISTERED:
AMERICAN SECURITIES TRANSFER &
TRUST, INC., as Warrant Agent
By
-------------------------------------
Authorized Signature
A-2
[REVERSE OF WARRANT CERTIFICATE]
The articles of incorporation of the corporation grant to the board of
directors the power to establish more than one class or series of shares and to
fix the relative rights and preferences of any such different class or series.
The corporation will furnish to any shareholder upon request and without charge
a full statement of the designations, preferences, limitations, and relative
rights of the shares of each class or series authorized to be issued, so far as
they have been determined, and the authority of the board to determine the
relative rights and preferences of subsequent classes or series.
THE HOLDER OF THIS WARRANT CERTIFICATE WILL BE ABLE TO EXERCISE THE
WARRANTS ONLY IF A CURRENT PROSPECTUS RELATING TO THE SHARES UNDERLYING THE
WARRANTS IS THEN IN EFFECT AND ONLY IF THE SHARES ARE QUALIFIED FOR SALE OR
EXEMPT FROM QUALIFICATION UNDER THE APPLICABLE SECURITIES LAWS OF THE STATES IN
WHICH THE HOLDER OF THIS WARRANT CERTIFICATE RESIDES. ALTHOUGH THE COMPANY WILL
USE ITS BEST EFFORTS TO MAINTAIN THE EFFECTIVENESS OF A CURRENT PROSPECTUS
COVERING THE SHARES UNDERLYING THE WARRANTS, THERE CAN BE NO ASSURANCE THAT THE
COMPANY WILL BE ABLE TO DO SO, OR TO GET ANY REQUIRED AMENDMENTS DECLARED
EFFECTIVE BY FEDERAL OR STATE AUTHORITIES IN A TIMELY MANNER. THE COMPANY WILL
BE UNABLE TO ISSUE SHARES TO THOSE PERSONS DESIRING TO EXERCISE THEIR WARRANTS
IF A CURRENT PROSPECTUS COVERING THE SHARES ISSUABLE UPON THE EXERCISE OF THE
WARRANTS IS NOT KEPT EFFECTIVE OR IF SUCH SHARES ARE NOT QUALIFIED NOR EXEMPT
FROM QUALIFICATION IN THE STATES IN WHICH THE HOLDERS OF THE WARRANTS RESIDE.
A-3
TO: ACT TELECONFERENCING, INC.
c/o American Securities Transfer & Trust, Inc.
Warrant Agent
PURCHASE FORM
(TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE WARRANT CERTIFICATES)
The undersigned hereby irrevocably elects to exercise _____________* of the
Warrants represented by the Warrant Certificate, purchase for cash the Shares
issuable upon the exercise of the Warrants, makes payment of $__________ , and
requests that certificates for such Shares shall be issued in the name of
_________________________.
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
REGISTERED HOLDER OF CERTIFICATE
-------------------------
-------------------------
-----------------------------------------
(Print Name)
-----------------------------------------
(Address)
-----------------------------------------
Dated: Signature(s)
----------------------- ----------------------------
----------------------------
------------------------
* Insert here the number of Warrants evidenced on the face of this Warrant
Certificate (or, in the case of a partial exercise, the portion being
exercised), in either case without making any adjustment for additional Common
Stock or any other securities or property or cash which, pursuant to the
adjustment provisions referred to in this Warrant Certificate, may be
deliverable upon exercise.
A-4
ASSIGNMENT FORM
(TO BE EXECUTED BY THE REGISTERED HOLDER TO TRANSFER WARRANT CERTIFICATES)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
____________________** of the Warrants represented by this Warrant Certificate
unto __________________________________________.
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
------------------------------
-----------------------------------------
(Print Name)
-----------------------------------------
(Address)
-----------------------------------------
and does hereby irrevocably constitute and appoint______________________________
attorney to transfer this Warrant Certificate on the records of the Company with
full power of substitution in the premises.
Dated: Signature(s)
----------------------- ----------------------------
----------------------------
Signature(s)
Guaranteed:
------------------------------
------------------------
** Insert here the number of Warrants evidenced on the face of this Warrant
Certificate (or, in the case of a partial assignment, the portion being
assigned), in either case without making any adjustment for additional Common
Stock or any other securities or property or cash which, pursuant to the
adjustment provisions referred to in this Warrant Certificate, may be
deliverable upon exercise.
NOTICE
THE SIGNATURE(S) TO THE PURCHASE FORM OR THE ASSIGNMENT FORM MUST
CORRESPOND TO THE NAME(S) AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE
IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
A-5