THIS COMMON STOCK PURCHASE WARRANT (THE "WARRANT") AND ANY SHARES
ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, IN
RELIANCE ON CERTAIN EXEMPTIONS PROVIDED THEREUNDER, OR UNDER THE
GEORGIA SECURITIES ACT OF 1973, AS AMENDED, IN RELIANCE UPON
CERTAIN EXEMPTIONS PROVIDED THEREUNDER, INCLUDING SECTION
10-5-9(13) OF THAT ACT. THE WARRANT AND ANY SHARES ACQUIRED UPON
THE EXERCISE OF THIS WARRANT HAVE ALSO NOT BEEN REGISTERED UNDER
ANY OTHER FEDERAL OR STATE SECURITIES LAW. THIS WARRANT AND ANY
SHARES ACQUIRED UPON EXERCISE OF THIS WARRANT ARE BEING ACQUIRED
FOR INVESTMENT, AND NEITHER THIS WARRANT NOR ANY OF SUCH SHARES
MAY BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT THERETO UNDER THE SECURITIES
ACT OF 1933, THE GEORGIA SECURITIES ACT OF 1973 AND ANY OTHER
APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION
IS AVAILABLE UNDER SAID ACTS. NEITHER THIS WARRANT NOR ANY OF
SUCH SHARES MAY BE TRANSFERRED EXCEPT UPON THE CONDITIONS
SPECIFIED IN THIS WARRANT, AND NO TRANSFER OF THIS WARRANT OR ANY
OF SUCH SHARES SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH
CONDITIONS SHALL HAVE BEEN COMPLIED WITH.
VOID AFTER 5:00 P.M., E.D.T., ON JANUARY 16, 2002.
VIEWCALL AMERICA, INC.
1,062,500 Shares of Common Stock
PURCHASE ▇▇▇▇▇▇▇
▇▇. ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., a Georgia corporation (the
"Company"), hereby agrees that, for value received, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, an individual resident of the State of New York (the
"Holder"), is entitled, subject to the terms and conditions set
forth below, to purchase from the Company up to 1,062,500 fully
paid and nonassessable shares (the "Shares") of the common stock,
par value $.01 per share (the "Common Stock"), of the Company, at
a purchase price per Share of $0.70 (the "Purchase Price"),
subject to certain adjustments contained in Section 3 herein, and
prior to the Expiration Date (as defined below). This Warrant
shall expire and be of no further force or effect at the earlier
of the time when it has been exercised with respect to all Shares
which the Holder is or may become entitled to purchase hereunder
or on January 16, 2002 (the "Expiration Date"). The number and
character of the Shares and the Purchase Price are subject to
adjustment as herein provided.
1. EXECUTION; REGISTRATION. This Warrant is executed on
behalf of the Company by its President and attested by its
Secretary under its corporate seal. The Company shall keep or
cause to be kept a register of the Holder of this Warrant (the
"Warrant Register"). Prior to due presentment of this Warrant
for transfer in accordance with Section 7 hereof, the Company
shall treat the Holder in whose name or names this Warrant is
registered as the absolute owner or owners hereof for all
purposes.
2. EXERCISE. This Warrant may be exercised, in whole or
in part, from time to time by the Holder by delivering this
Warrant, together with an Election to Purchase in the form
attached hereto properly completed and duly executed by or on
behalf of the Holder, to the Company or such person as the
Company may have appointed as warrant agent, at its principal
office (or at the office of such agent), accompanied by payment
in cash or by certified or bank check, payable to the order of
the Company, in an aggregate amount equal to the Purchase Price
as then adjusted multiplied by the number of Shares as to which
this Warrant is then exercised. The Company shall cancel this
Warrant on any such exercise and, if such exercise is partial,
shall issue and deliver to the Holder a new Warrant, of like
tender, with respect to the Shares as to which this Warrant has
not then been exercised.
The Company will, or will direct its transfer agent to,
issue, as soon as practicable after any exercise of this Warrant,
and in any event within 15 days thereafter, at the Company's
expense (including the payment by it of any applicable issue
taxes), in the name of and deliver to the Holder, or as the
Holder may direct (on payment by the Holder of any applicable
transfer taxes and compliance with Section 7 hereof), a
certificate or certificates for the number of fully paid and
nonassessable Shares as to which this Warrant is so exercised,
plus, in lieu of any fractional shares to which the Holder would
otherwise be entitled, cash equal to such fraction multiplied by
the greater of (i) the then fair market value of such shares or
(ii) the Purchase Price as then adjusted.
Any Shares as to which this Warrant is exercised shall be
deemed issued on and as of the date of such exercise and the
Holder or the person or persons designated by the Holder as
therein provided shall thereupon be deemed to be the owner or
owners of record thereof.
Shares of Common Stock purchased pursuant to this Warrant
shall bear a restrictive securities legend similar in substance
to the one at the head of this Warrant.
3. ADJUSTMENTS
3.1 Stock Dividends, Splits, Etc. The number of Shares
purchasable on exercise of this Warrant and the Purchase Price
shall be subject to adjustment from time to time in the event
that the Company shall (a) pay a dividend in, or make a
distribution of, shares of Common Stock (or securities
convertible into, exchangeable for or otherwise entitling a
holder thereof to receive Common Stock), (b) subdivide its
outstanding shares of Common Stock into a greater number of
shares or (c) combine its outstanding shares of Common Stock into
a smaller number of shares. In any such case, the total number
of Shares and the number of shares or other units of such other
securities purchasable upon exercise of this Warrant immediately
prior thereto shall be adjusted so that the Holder shall be
entitled to receive at the same aggregate purchase price the
number of shares of Common Stock and the number of shares or
other units of such other securities which the Holder would have
owned or would have been entitled to receive immediately
following the occurrence of any of the events described above had
this Warrant been exercised in full immediately prior to the
occurrence (or applicable record date) of such event. An
adjustment made pursuant to this Section 3.1 shall, in the case
of a stock dividend or distribution, be made as of the record
date therefor and, in the case of a subdivision or combination,
be made as of the effective date thereof.
3.2 Reorganization, Recapitalization, Consolidation, Merger
or Sale of Assets. In the event of any reorganization or
recapitalization of the Company or in the event the Company
consolidates with or merges with or into another corporation or
transfers all or substantially all its assets to another entity,
then and in each such event, the Holder, upon exercise of this
Warrant at any time after the consummation of such
reorganization, recapitalization, consolidation, merger or
transfer, shall be entitled to receive the stock or other
securities or property to which the Holder would have been
entitled if the Holder had exercised this Warrant immediately
prior thereto. In such case, the terms of this Warrant shall
survive the consummation of any such reorganization,
recapitalization, consolidation, merger or transfer and shall be
applicable to such shares of stock or other securities or
property receivable on the exercise of this Warrant after such
consummation.
3.3 Notice of Adjustment. Upon the occurrence of any event
requiring an adjustment of the Purchase Price or the Shares, then
and in each such case, the Company shall promptly deliver to the
holder of this Warrant an Officer's Certificate stating the
Purchase Price or Shares resulting from such adjustment and
setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based; provided,
however, that no notice to holders of this Warrant or of any part
hereof shall be required before the earlier of the public
announcement or notice to shareholders of the same.
4. FURTHER ASSURANCES. The Company will not, by amendment
of its articles of incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger,
dissolution, issuance or sale of securities or any other
voluntary action, avoid or seek to avoid the performance of any
terms of this Warrant, but will at all times in good faith take
all necessary action to carry out all such terms. Without
limiting the generality of the foregoing, the Company (a) will
not increase the par value of any shares of stock receivable on
exercise of this Warrant above the amount payable therefor on
such exercise, (b) will take all such action as may be necessary
or appropriate so that the Company may validly and legally issue
fully paid and nonassessable Shares (or other securities or
property deliverable hereunder), free of all liens, encumbrances,
security interests and claims whatsoever, upon the exercise of
this Warrant, and (c) will not transfer all or substantially all
its assets to any other entity or consolidate or merge with or
into any other entity or permit any such entity to consolidate or
merge with or into the Company (if the Company is not the
surviving entity), unless such other entity shall be bound by all
the terms of this Warrant. This Warrant shall bind the
successors and assigns of the Company.
5. NOTICES OF RECORD DATES, ETC.
(a) If the Company shall fix a record date of the
holders of its Common Stock (or other securities at the time
deliverable upon the exercise of this Warrant) for the
purpose of entitling or enabling them to receive any
dividend (including a stock dividend) or other distribution,
or to receive any right to subscribe for or to purchase any
shares of any class of any securities, or to receive any
other right, or
(b) in the event of any reorganization or
recapitalization of the Company, any reclassification of the
capital stock of the Company, any consolidation or merger of
the Company with or into another corporation or any transfer
of all or substantially all the assets of the Company to
another entity, or
(c) in the event of the voluntary or involuntary
dissolution, liquidation or winding up of the Company,
then, in any such event, the Company shall mail or cause to be
mailed to the Holder of this Warrant a notice specifying, as the
case may be, (i) the date on which a record is to be taken for
the purpose of such dividend, distribution or right and stating
the amount and character of such dividend, distribution or right
or (ii) the date on which a record is to be taken for the purpose
of voting on or approving such reorganization, recapitalization,
reclassification, consolidation, merger, conveyance, dissolution,
liquidation or winding up and the date on which such event is to
take place and the time, if any is to be fixed, as of which the
holders of record of Common Stock (or any other securities at the
time deliverable upon exercise of this Warrant) shall be entitled
to exchange their shares of Common Stock (or such other
securities) for securities or other property deliverable upon
such reorganization, recapitalization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or
winding up. Such notice shall be mailed promptly after
definitive information (such as, for example, approval of the
Board of Directors or the signing of a letter of intent) with
respect to such proposed action becomes known to the Company, but
in any event at least 10 days prior to the record date therein
specified; provided, however, that no notice to holders of this
Warrant or any part hereof shall be required before the earlier
of the public announcement or notice to shareholders of the same.
6. REPLACEMENT OF WARRANT. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any
such loss, theft or destruction, upon delivery of any indemnity
bond (or, in the case of any institutional holder, an indemnity
agreement) reasonably satisfactory in form and amount to the
Company or, in the case of any mutilation, upon surrender and
cancellation of this Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like
tenor.
7. TRANSFERS.
7.1 The Holder shall not transfer or assign this
Warrant except by will, by court order or pursuant to the laws of
descent and distribution; provided, however, that any such
transfer shall be subject to compliance with applicable
securities laws. Any attempted or purported assignment or
transfer of this Warrant without compliance with the preceding
sentence shall be void. In the event of any transfer permitted
by this Section 7, the Company shall register or shall cause its
agent to register the transfer or assignment on its Warrant
Register upon surrender of this Warrant, duly endorsed, or
accompanied by a written instrument of transfer duly executed by
the Holder or by the duly appointed legal representative or
attorney thereof. On any such registration of transfer, the
Company shall issue a new Warrant or Warrants, of like tenor, in
lieu of the transferred or assigned Warrant. In no event will
the Company be required to effect any registration of transfer,
assignment or exchange that would result in the issuance of a
fraction of a Share. Any action by the Company required under
this Section 7 shall be taken at its own expense.
7.2 No holder of this Warrant may sell, transfer,
assign, pledge, hypothecate or otherwise dispose of this
Warrant, or any part hereof, unless (i) a registration statement
under the Securities Act of 1933, as amended (the "Securities
Act"), and all applicable state securities laws then in effect
with respect to this Warrant and the Shares, (ii) the holder
delivers to the Company a written opinion of counsel,
satisfactory to counsel for the Company, to the effect that an
exemption from registration under the Securities Act and any
applicable state securities laws is available with respect to
such disposition of this Warrant and that no such registration is
required or (iii) the Company is satisfied that registration
under such acts is not required.
7.3 Issue Tax. The issuance of this Warrant and
certificates for Shares upon the exercise of this Warrant shall
be made without charge to the Holder of such Shares for any
issuance tax in respect thereof, provided that the Company shall
not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any Warrant
or certificate in a name other than that of the Holder.
8. RESERVATION OF SHARES. The Company shall reserve, for
the purpose of issuance upon exercise of this Warrant, such
number of its duly authorized and unissued shares of Common Stock
or such class or classes of capital stock or other securities as
shall from time to time be sufficient to comply with this
Warrant. If at any time the authorized and unissued shares of
Common Stock or such other class or classes of capital stock or
other securities are not sufficient for the exercise of this
Warrant, the Company shall immediately take such corporate action
as may be necessary to increase its authorized and unissued
shares of Common Stock or such other class or classes of capital
stock or other securities to such number as shall be sufficient
for that purpose.
9. PIGGYBACK REGISTRATION RIGHTS.
9.1 Certain Definitions. As used in this Section
9, the following terms shall have the following respective
meanings.
(a) "Commission" shall mean the United States
Securities and Exchange Commission or any other federal agency at
the time administering the Securities Act.
(b) "Form S-4" and "Form S-8" shall mean Form S-4
or Form S-8, respectively, promulgated by the Commission or any
substantially similar form then in effect.
(c) The terms "Register," "Registered" and
"Registration" refer to a registration effected by preparing and
filing a registration statement ("Registration Statement") in
compliance with Securities Act and the declaration or ordering of
the effectiveness of such Registration Statement.
(d) "Registrable Securities" shall mean the
shares of Common Stock issuable upon exercise of this Warrant or
any other warrant originally issued by the Company as of the date
of this Warrant.
(e) "Registration Expenses" shall mean all
expenses incurred by the Company in complying with this Section
9, including, without limitation, all federal and state
registration, qualification and filing fees, printing expenses,
fees and disbursements of counsel for the Company, blue sky fees
and expenses, the expense of any special audits incident to or
required by any such Registration and the reasonable fees and
disbursements of one counsel for the Selling Shareholders, as
defined below.
(f) "Restriction Termination Date" shall mean,
with respect to any Registrable Securities, the earliest of (i)
the date that such Registrable Securities shall have been
Registered and sold or otherwise disposed of in accordance with
the intended method of distribution by the seller or sellers
thereof set forth in the Registration Statement covering such
securities or transferred in compliance with Rule 144 and (ii)
the date that an opinion of counsel to the Company containing
reasonable assumptions shall have been rendered to the effect
that all legends on such Registrable Securities can be properly
removed and such legends shall have been removed.
(g) "Rule 144" shall mean Rule 144 promulgated by
the Commission pursuant to the Securities Act.
(h) "Selling Expenses" shall mean all
underwriting discounts and selling commissions applicable to the
sale of Registrable Securities pursuant to this Warrant.
(i) "Selling Shareholders" shall mean holders of
Registrable Securities that have requested Registration pursuant
to other agreements.
9.2 Registration.
(a) Each time that the Company proposes for any
reason to Register any of its securities, other than pursuant to
a Registration Statement on Form S-4 or Form S-8 or similar or
successor forms, the Company shall promptly give written notice
of such proposed Registration to the Holder, which shall offer
the Holder the right to request inclusion of any Registrable
Securities in the proposed Registration.
(b) The Holder shall have 10 days from the
receipt of such notice to deliver to the Company a written
request specifying the number of shares of Registrable Securities
such Holder intends to sell and the Holder's intended plan of
disposition.
(c) Upon receipt of a written request pursuant to
Section 9.2(b), the Company shall promptly use its best efforts
to cause all such Registrable Securities to be Registered, to the
extent required to permit sale or disposition as set forth in the
written request.
(d) Notwithstanding the forgoing, if the managing
underwriter determines and advises in writing that the inclusion
of all Registrable Securities proposed to be included in the
Registration Statement, together with any other issued and
outstanding shares of Common Stock proposed to be included
therein by holders other than the holders of Registrable
Securities (such other shares hereinafter collectively referred
to as the "Other Shares"), would interfere with the successful
marketing of the securities proposed to be included in the
underwritten public offering, then the number of such shares of
Common Stock to be included in such Registration Statement shall
be reduced, and shares of Common Stock shall be excluded from
such underwritten public offering in a number deemed necessary by
such managing underwriter, by excluding equal numbers of (i) the
Registrable Securities and (ii) the Other Shares proposed to be
registered, pro rata, based on the number of shares of Common
Stock the respective holders proposed to include. The shares of
Common Stock that are so excluded from the Registration Statement
shall be withheld from the market by the holders thereof for a
period, not to exceed 180 days, that the managing underwriter
reasonably determines as necessary in order to effect the
underwritten public offering.
9.3 Preparation and Filing. If and whenever the
Company is under an obligation pursuant to the provisions of this
Section 9 to use its best efforts to effect the Registration of
any Registrable Securities, the Company shall, as expeditiously
as practicable:
(a) furnish to the Holder such number of copies
of any summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the public sale or
other disposition of such Registrable Securities;
(b) use its best efforts to register or qualify
the Registrable Securities covered by such registration statement
under the securities or blue sky laws of such jurisdictions as
the Holder shall reasonably request and do any and all other acts
or things which may be necessary or advisable to enable the
Holder to consummate the public sale or other disposition in such
jurisdictions of such Registrable Securities; provided, however,
that the Company shall not be required to consent to general
service of process, qualify to do business as a foreign
corporation where it would not be otherwise required to qualify
or submit to liability for state or local taxes where it is not
liable for such taxes;
(c) at any time when a prospectus covered by such
Registration Statement is required to be delivered under the
Securities Act notify the Holder of the happening of any event as
a result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing and,
at the request of such Holder, prepare, file and furnish to such
Holder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such shares, such
prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statement therein not misleading
in the light of the circumstances then existing; and
9.4 Expenses. The Company shall pay all Registration
Expenses incurred by the Company in complying with this Section
9; provided, however, that all underwriting discounts and selling
commissions applicable to the Registrable Securities covered by
registrations effected pursuant to this Section 9 shall be borne
by the seller or sellers thereof, in proportion to the number of
Registrable Securities sold by such seller or sellers.
9.5 Information Furnished by Holder. It shall be a
condition precedent to the Company's obligations under this
Warrant as to the Holder that the Holder furnish to the Company
in writing such information regarding such Holder and the
distribution proposed by such Holder as the Company or any
managing underwriter may reasonably request.
9.6 Indemnification of Company Upon Registration. The
undersigned shall indemnify the Company, each of its directors
and officers, each underwriter, if any, of the Company's
Registrable Securities covered by a Registration Statement, each
person who controls the Company or such underwriter within the
meaning of the Securities Act, and other Selling Shareholders,
each of their respective officers, directors and constituent
partners and each person controlling such other Selling
Shareholders, against all claims, losses, damages and liabilities
(or actions in respect thereof) suffered or incurred by any of
them and arising out of or based upon any untrue statement (or
alleged untrue statement) of a material fact contained in such
Registration Statement or related prospectus, or any omission (or
alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or any violation by the undersigned of any rule or
regulation promulgated under the Securities Act applicable to the
undersigned and relating to actions or inaction required of the
undersigned in connection with the Registration of the
Registrable Securities pursuant to such Registration Statement;
and will reimburse the Company, such Selling Shareholders, and
such directors, officers, partners, persons, underwriters and
controlling persons for any legal and any other expenses
reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action. Such
indemnification and reimbursement shall be to the extent, but
only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such
Registration Statement or prospectus in reliance upon and in
conformity with written information furnished to the Company by
the undersigned.
10. SURVIVAL. All agreements, covenants, representations
and warranties contained herein shall survive the execution and
delivery of this Warrant and any investigation at any time made
by or on behalf of any party hereto and the exercise, sale and
purchase of this Warrant and the Common Stock (and any other
securities or property) issuable upon exercise hereof.
11. NO SHAREHOLDER RIGHTS. This Warrant shall not entitle
the Holder hereof, in such capacity, to any voting rights or
other rights as a shareholder of the Company.
12. NOTICES. All demands, notices, consents and other
communications to be given hereunder shall be in writing and
shall be deemed duly given when delivered personally or five days
after being mailed by registered or certified mail, postage
prepaid, addressed as follows:
If to the Company: ViewCall America, Inc.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Holder: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Company or the Holder may change their respective addresses
at any time or times by notice hereunder actually received by the
other.
13. REMEDIES. The Company agrees that the remedies at law
of the Holder, in the event of any default or threatened default
by the Company in the performance of or compliance with any of
the terms of this Warrant, are not and will not be adequate and
such terms may be specifically enforced by a decree of specific
performance of any agreement contained herein or by an injunction
against a violation of any terms hereof or otherwise.
14. GENERAL. This Warrant and any term hereof may be
amended, modified, waived or terminated only by an instrument in
writing signed by the party against which enforcement of such
amendment, modification, waiver or termination is sought. This
Warrant shall be governed by and construed in accordance with the
laws (other than the conflict of laws rules) of the State of
Georgia. The invalidity or unenforceability of any provision
hereof shall not affect the validity or enforceability of any
other provision hereof. The headings in this Warrant are for
convenience of reference only and are not part of this Warrant.
Dated: January 16, 1997.
VIEWCALL AMERICA, INC.
By:
▇▇▇▇ ▇▇▇▇▇▇,
President
Attest:
▇▇▇▇▇▇▇ ▇▇▇▇▇,
Secretary
(CORPORATE SEAL)
ELECTION TO PURCHASE
To ViewCall America, Inc.:
The undersigned, Holder of the attached Warrant, hereby
irrevocably elects to exercise the purchase right represented by
such Warrant for, and to purchase thereunder, _______ shares of
Common Stock of ViewCall America, Inc. (or other securities or
property) to which such Holder is entitled thereunder, and
herewith makes payment of $____________ therefor in cash or by
certified or bank check. The undersigned hereby requests that
the certificate(s) for such shares be issued in the name(s) and
delivered to the address(es) as follows:
If the foregoing Election to Purchase evidences an exercise
of the attached Warrant to purchase fewer than all the Shares (or
such other securities or property) to which the undersigned is
entitled under such Warrant, please issue a new warrant, of like
tenor, for the remaining Shares (or other securities or property)
in the name(s), and deliver the same to the address(es), as
follows:
Dated: , 19__.
(Name of Holder)
(Signature of Holder or
Authorized Signatory)