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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered
into as of the 13th day of December, 1999, by and between ▇▇▇▇▇▇▇
Communications, Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ("Executive").
WHEREAS, Executive desires to be employed by the Company, and
the Company desires to employ Executive, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the compensation and other
benefits of Executive's employment by the Company and the recitals, mutual
covenants and agreements hereinafter set forth, Executive and the Company agree
as follows:
1. Employment Services.
(a) Executive is hereby employed by the Company,
and Executive hereby accepts such employment, upon the terms and conditions
hereinafter set forth. During the Employment Period (as defined below),
Executive shall serve as Chief Executive Officer ("CEO"), Vice Chairman of the
Board of Directors of the Company (the "Board") and a member of the Executive
Committee of the Board. Executive shall report solely and directly to the Board.
(b) Executive agrees that, throughout the
Employment Period, Executive shall have such authorities, duties and
responsibilities as are customarily assigned to the Vice Chairman of the Board
and Chief Executive Officer of an enterprise like the Company. Such duties,
responsibilities, and authorities shall include, without limitation, but subject
to the authority and directions of the Board, responsibility for the management,
operation, strategic direction and overall conduct of the business of the
Company. The Executive shall be assigned no duties or responsibilities that are
materially inconsistent with, or that materially impair his ability to
discharge, the foregoing duties and responsibilities. During the Employment
Period, the Executive shall devote substantially his full business time and best
efforts to the business of the Company. All other employees of the Company shall
report directly or indirectly to the Executive and not directly to the Board or
the Chairman of the Board. The Executive may (i) with the consent of the Board-
(which shall not be unreasonably withheld), serve as a director or trustee of
other for profit corporations or businesses which are not in substantial
competition with the Company, any of its subsidiaries or any entity in which the
Company or any of its subsidiaries has a greater than forty percent (40%)
interest (the "Company's Business"), (ii) continue to serve as an investment
director and member of the general partner of Meritage Private Equity Fund
("Meritage"), and to receive compensation therefrom, and serve on the boards of
directors of Meritage portfolio companies (including, without limitation, the
Company), provided that such portfolio companies are not in substantial
competition with the Company's Business, (iii) serve on civic or charitable
boards or committees, and (iv) manage personal investments; provided, however,
that the Executive may not engage in any of the activities described in this
Section 1(b) to the extent such activities materially interfere with the
performance of Executive's duties and responsibilities to the Company.
(c) Executive shall not, during the Employment
Period, become or serve as a director, officer, employee or member of any
entity conducting, nor become an owner of any
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substantial interest in any entity conducting, a business in substantial
competition with the Company's Business.
2. Term of Employment. The term of this Employment
Agreement (the "Employment Period") shall commence on December 13, 1999 (the
"Effective Date"), shall end on December 31, 2002 (the "Initial Period"), and
shall thereafter continue from year to year (each an "Annual Extension"), unless
sooner terminated as provided in the second sentence of this Section 2 or in
Section 4 hereof. Unless sooner terminated as provided in Section 4 hereof, the
Employment Period may be terminated by either the Company or Executive, at the
end of the Initial Period or an Annual Extension, if a written notice of
nonrenewal is delivered to the other party at least six (6) months prior to the
end of such Initial Period or Annual Extension, as the case may be.
3. Compensation and Benefits.
(a) Annual Base Salary. During the Employment
Period, the Company shall pay Executive as compensation for his services an
annual base salary in an amount determined by the Compensation Committee of the
Board. Such annual base salary shall be at the annual rate of not less than
Three Hundred Twenty-Five Thousand Dollars ($325,000) from the Effective Date
through December 31, 2000, Four Hundred Thousand Dollars ($400,000) from
January 1, 2001 through December 31, 2001, and Four Hundred Seventy-Five
Thousand Dollars ($475,000) from January 1, 2002 through December 31, 2002.
Executive's annual base salary rate shall be reviewed at least annually for
increase in the discretion of the Compensation Committee; Executive's annual
base salary rate shall not be subject to decrease at any time during the
Employment Period. Executive's base salary shall be payable in accordance with
the Company's usual practices.
(b) Annual Bonus. During the Employment Period,
Executive shall be eligible for an annual bonus under a bonus program to be
established by the Compensation Committee of the Board and approved by the
Board. Under the bonus program, Executive's annual bonus will be tied to
performance criteria and Executive is expected to be eligible for a bonus of up
to one hundred percent (100%) of his annual base salary. During the first year
of the Employment Period (through December 31, 2000), Executive's annual bonus
shall be in an amount not less than fifty percent (50%) of his annual base
salary for such payment period and shall be payable in shares of common stock of
the Company at $3.00 per share. During subsequent years of the Employment
Period, Executive's annual bonus shall be paid, at Executive's option,
exercisable at or prior to the time of such bonus award, in cash and/or shares
of common stock of the Company at a price per share equal to the exercise price
per share established by the Board or Compensation Committee with respect to the
most recent grant of stock options at fair market value by the Company,
immediately preceding the bonus determination, pursuant to the Company's 1998
Stock Incentive Plan, as amended (the "Stock Plan"), or, if not then in effect,
any successor plan of a similar nature; provided, however, that the stock
portion of the annual bonus shall not exceed fifty percent (50%) of the annual
bonus after the first year of the Employment Period.
(c) Equity Participation. On the Effective
Date, Executive shall be granted the following:
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(1) The right to purchase, at any time
on or prior to January 13, 2000, 425,000 shares of common stock of the
Company at $2.40 per share under the Stock Plan;
(2) A warrant under the Stock Plan to
purchase 550,000 shares of common stock of the Company at $3.00 per
share, which warrant shall be in the form of Exhibit A hereto and shall
be vested and exercisable from the Effective Date through December 12,
2009; and
(3) Stock options under the Stock Plan
to purchase an aggregate of 1,000,000 shares of common stock of the
Company at $2.40 per share, one-third of which options shall vest upon
each of the first, second and third anniversaries of the Effective
Date; provided that such options may vest earlier than such dates under
circumstances referred to in Section 5.
To permit the foregoing grants, the Company shall amend the number "250,000" in
the penultimate sentence of Section 4.3 of the Stock Plan to read "2,000,000."
Notwithstanding the provisions of Sections 15.1, 15.2 or 15.3 of the Stock Plan,
the provisions of Section 5 of this Agreement shall govern to determine the
exercisability of Executive's Awards under the Stock Plan which are outstanding
immediately prior to the termination of Executives' employment. In connection
with Executive's acquisition of shares of common stock of the Company pursuant
to clause (1) above, Executive shall execute and deliver the Instruments of
Accession to the Company's shareholder documents in the form of Exhibit B
hereto, provided, however, that the first sentence of Section 7.5 of the
referenced Shareholders Agreement shall have been amended to read as set forth
on Exhibit C hereto.
(d) Diminished Opportunity Payment. In the
event that, during the Employment Period and prior to December 1, 2001, (A) the
stockholders of the Company approve (i) any acquisition of the Company by means
of a merger or other form of corporate reorganization in which the outstanding
shares of the Company are exchanged for securities or other consideration
issued, or caused to be issued, by the acquiring corporation or any affiliate of
the acquiring corporation, or (ii) the liquidation, dissolution or winding up of
the Company or any sale of all or substantially all of the assets of the
Company, and the value of the consideration that would be received by or
distributed to the stockholders of the Company as a result of any such
transaction (without reduction for the following payment to Executive), on an
as-converted common equivalent basis, is less than $6.00 per share, or (B)
either (i) an event described in clause (2) or (3) of the definition of "Change
in Control" in the Stock Plan (as in effect on the date hereof) shall occur or
(ii) any "person," as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than any
stockholder of the Company on the date hereof, the Company, any subsidiary of
the Company, or any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary of the Company), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 40% or
more of the combined voting power of the Company's then outstanding securities,
and, in the case of either clause (A) or clause (B), within ten days thereafter,
Executive elects to terminate his employment hereunder, then, in either case,
the Company shall make or cause to be made to Executive a cash payment in the
amount of $2,500,000
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at the time of such distribution or termination of employment, as the case may
be. In the event the consideration received by or distributed to the
stockholders of the Company in any such transaction is payable in securities or
property other than cash, the value of such distribution shall be the fair
market value of such securities or other property as determined in good faith by
the Board. No more than one payment shall be made pursuant to this Section 3(d).
(e) Benefits. During the Employment Period,
Executive shall also (i) be eligible to participate in all benefit programs from
time to time maintained by the Company for the benefit of its most senior
executives including without limitation, its group medical, dental and term life
insurance coverages, 401 (k) Plan and the Stock Plan, in each case on and
subject to the terms and conditions of each of such programs as such programs
apply to the Company's most senior executives, (ii) be entitled to four (4)
weeks of paid vacation per year, (iii) be entitled to utilize a furnished
corporate apartment for the convenience of the Company and a Company owned or
leased automobile in St. Louis, Missouri for so long as the Company's corporate
headquarters remain in St. Louis, Missouri and its environs, (iv) be reimbursed
by the Company for customary business and travel expenses, including travel
between St. Louis, Missouri and Nashville, Tennessee, and (v) be required to
maintain an office and such limited staff in Nashville, Tennessee as is deemed
necessary by Executive and approved by the Executive Committee of the Board. In
order to defray commercial airline costs and enhance Executive's amount of time
to perform services, at Executive's request, the Company shall make available to
Executive, at the Company's cost, a private commercial aircraft for Executive to
utilize for business travel between St. Louis, Missouri and Nashville, Tennessee
and for such other purposes as the Executive may deem reasonably necessary in
connection with the performance of his services hereunder.
4. Termination of Employment. Prior to the expiration
of the Employment Period, this Agreement and Executive's employment may be
terminated as follows:
(a) Automatically upon Executive's death.
(b) By the Company, upon thirty (30) day's prior
written notice to Executive, in the event the Board believes that Executive, by
reason of physical or mental illness, is unable to perform a material portion of
the services required of Executive hereunder for a continuous one-hundred
thirty-five (135) day period; in the event of a disagreement concerning the
existence of any such disability (in which event any such termination shall not
become effective until such disagreement shall have been resolved), the matter
shall be resolved by a disinterested licensed physician chosen by the Company
(such physician to be located within 50 miles of Executive's principal
residence) and otherwise reasonably satisfactory to the Executive or his legal
representative.
(c) By the Company, for "Good Cause." "Good
Cause" shall mean:
(1) The willful and continued failure of
Executive to substantially perform material duties assigned to Executive by the
Board in accordance with Section 1(b) hereof (other than any such failure
resulting from incapacity due to physical or mental illness);
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(2) A material breach of Section 1(c) of
this Agreement by Executive; or
(3) Executive's commission of fraud or
willful conduct which significantly ▇▇▇▇▇ the Company or its subsidiaries or
which significantly impairs Executive's ability to perform his duties.
For purposes of this definition, no act, or failure to act, shall be deemed
"willful" unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that his action or omission was in the best
interest of the Company.
Unless the Executive has been convicted of a felony, no termination for Good
Cause shall take effect unless the following provisions of this paragraph shall
have been complied with. The Board shall give the Executive written notice of
its intention to terminate him for Good Cause, such notice (i) to state in
detail the particular circumstances that constitute the grounds on which the
proposed termination for Good Cause is based and (ii) to be given within four
months of the Board learning of such circumstances. The Executive shall have
twenty days, after receiving such special notice, to cure such grounds, to the
extent such cure is possible. If he fails to cure such grounds to the Board's
satisfaction, the Executive shall then be entitled to a hearing by the Board,
during which he may, at his election, be represented by counsel. Such hearing
shall be held within thirty days of his receiving such special notice, provided
he requests a hearing within fifteen days of receiving the notice. If the Board
gives written notice to the Executive within five days following such hearing
confirming that, in the good faith judgment of a majority of the Board, Good
Cause for terminating him on the basis set forth in the original notice exists,
he shall thereupon be terminated for Good Cause.
(d) By the Company, without Good Cause, upon
seven (7) days prior written notice to Executive. A termination without Good
Cause shall be deemed to exist upon any termination of Executive by the Company
other than as set forth in Sections 4(a), (b), (c) or (f) or upon delivery by
the Company of a notice of non-extension pursuant to Section 2.
(e) By Executive, immediately upon his
determination that "Good Reason" for termination exists. "Good Reason" shall be
deemed to exist if:
(1) Executive's titles, duties,
authorities or responsibilities are materially reduced or modified
without Executive's consent, in his sole discretion, from those
specified herein or the stockholders of the Company fail to elect or
re-elect Executive as a director or if Executive is removed as a
director;
(2) A decision is made that Executive no
longer report solely and directly to the Board; or
(3) A change in the location of the
Company's executive offices to a location that is greater than 550
miles from Nashville, Tennessee.
(f) By the Company, upon a Change of Control (as
defined in the Stock Plan).
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(g) By Executive, if any of the events
described in Section 3(d) hereof shall occur.
(h) By Executive, upon ninety (90) days
prior written notice to the Company,for serious personal reasons that Executive
believes makes it inadvisable for him to continue to perform his services
hereunder.
5. Effect of Termination of Employment. Upon termination of
Executive's employment and this Agreement, the rights and obligations of the
parties pursuant to Sections 7 through 14 and Section 16 shall be unaffected,
but all other rights and obligations of the parties hereunder shall cease,
except:
(a) If this Agreement is terminated pursuant to
Section 4(a) or (b), Executive (or his estate) shall receive his annual base
salary for the remainder of the calendar year in which such termination occurs
(according to the same payroll practices in effect at the time of termination)
and benefits (as applicable) for the remainder of the Initial Period or the
applicable Annual Extension, as the case may be. In addition, Executive (or his
estate) shall receive a lump sum payment, within ten days of any such
termination, equal to one times his then current annual base salary, plus the
maximum bonus for which Executive was eligible in the year in which such
termination occurs, plus payment of accrued but untaken vacation for the portion
of the year in which such termination occurs. Notwithstanding the terms of the
Stock Plan and any Awards (as defined in the Stock Plan) granted to Executive
thereunder, all such Awards outstanding immediately prior to such termination
shall immediately become exercisable.
(b) If this Agreement is terminated pursuant to
Section 4(c) or 4(h), Executive shall receive his annual base salary and
benefits (including his vested Awards under the Stock Plan) accrued through the
date of such termination of employment. Any unvested Awards under the terms of
the Stock Plan shall be forfeited.
(c) If this Agreement is terminated pursuant to
Section 4(d), Executive shall receive his annual base salary for the remainder
of the calendar year in which such termination occurs and benefits (as
applicable) for the remainder of the Initial Period or the applicable Annual
Extension, as the case may be. In addition, Executive shall receive a lump sum
payment equal to two times his then current annual base salary, plus payment of
accrued but untaken vacation for the portion of the year in which such
termination occurs. Notwithstanding the terms of the Stock Plan and any Awards
granted to Executive thereunder, all such Awards outstanding immediately prior
to such termination shall immediately become exercisable.
(d) If this Agreement is terminated pursuant to
Section 4(e), Executive shall receive his annual base salary for the remainder
of the calendar year in which such termination occurs. In addition, Executive
shall receive a lump sum payment equal to one times his then current annual base
salary. Any unvested Awards under the terms of the Stock Plan shall be
forfeited.
(e) If this Agreement is terminated pursuant to
Section 4(f), Executive shall receive his annual base salary for the remainder
of the calendar year in which such termination occurs and benefits (as
applicable) for the remainder of the Initial Period or the applicable Annual
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Extension, as the case may be. In addition, Executive shall receive a lump sum
payment equal to three times his then current annual base salary, plus three
times the maximum bonus for which Executive was eligible in the year in which
such termination occurs. Notwithstanding the terms of the Stock Plan and any
Awards granted to Executive thereunder, all such Awards outstanding immediately
prior to such termination shall immediately become exercisable.
(f) If this Agreement is terminated pursuant to
Section 4(g), Executive shall receive the payment provided for in Section 3(d),
and his annual base salary and benefits (including his vested Awards under the
Stock Plan) accrued through the date of such termination of employment. Any
unvested Awards under the terms of the Stock Plan shall be forfeited.
(g) Except as otherwise provided in Section 2(c)
hereof, all shares of stock, options and warrants held by Executive at the time
of termination shall remain subject to the terms of the Stock Plan and the
agreements pursuant to which they were issued and the shareholder documents
referenced in Exhibit B hereto.
6. Provisions Relating to Taxation of Payments.
(a) Gross-up Payment. Anything in this Agreement
to the contrary notwithstanding, in the event it shall be determined that any
payment or distribution by the Company to or for the benefit of Executive,
whether paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest
or penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an additional payment
(a "Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such
payment or distribution.
(b) Determination of Gross-Up. Subject to the
provisions of paragraph (c) of this Section 6, all determinations required to be
made under this Section 6, including whether a Gross-Up Payment is required and
the amount of such Gross-Up Payment, shall be made by an accounting firm
satisfactory to the Company and Executive ("Accounting Firm"). The Accounting
Firm shall make such determination and provide detailed supporting calculations
to both the Company and Executive within fifteen (15) business days after it is
requested to do so. The initial Gross-Up Payment, if any, as determined pursuant
to this paragraph (b) of this Section 6, shall be paid to Executive within five
(5) business days after the Company's receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall furnish the Executive with a written opinion that he
has legal authority satisfying the criteria set forth in Treasury Regulation
Section 1.6661-3 or similar successor provisions not to report any Excise Tax on
his federal income tax return. Any determination by the Accounting Firm shall be
binding upon the Company and Executive.
(c) Dispute of Tax Claim. Executive shall
notify the Company in writing of any proposed assessment or proposed adjustment
by the Internal Revenue Service ("IRS")
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pursuant to an audit of Executive's federal income tax return or otherwise,
that, if successful, would require the payment by the Company of a Gross-Up
Payment (hereinafter referred to as a "Claim"). Such notice shall be given as
soon as practicable but no later than ten (10) business days after the earlier
of (i) the receipt by Executive of a written notice of proposed adjustment from
the IRS or (ii) the receipt by Executive of a statutory notice of deficiency.
Such notice by Executive to the Company shall include (i) notice of the amount
of the proposed assessment or proposed adjustment which relates to the Claim and
the taxable year or years in which the Claim arises, (ii) the general nature of
the Claim and (iii) all relevant written reports of the examining agent relating
to the Claim. Within thirty (30) days of (i) the receipt by Executive of a final
assessment or (ii) the execution by Executive and the IRS of a closing
agreement, with respect to any tax year of Executive in which a Claim has been
raised, pursuant to which Executive is required to pay any amount with respect
to the Claim, Executive shall provide the Company and the Accounting Firm with a
copy of such assessment or agreement, together with supporting documents
sufficient to determine the amount of such tax liability that was attributable
to the Claim. The Accounting Firm shall determine the amount Gross-Up Payment
under this Agreement due to such tax liability and the Company will make such
Gross-Up Payment to Executive within five (5) business days after its receipt of
such determination.
7. Withholding. All compensation paid to Executive
shall be subject to customary withholding taxes and other employment taxes as
required with respect thereto.
8. Non-Waiver of Rights. The failure of either party to
enforce at any time any of the provisions of this Agreement or to require at any
time performance by the other party of any of the provisions hereof shall in no
way be construed to be a waiver of such provisions or to affect either the
validity of this Agreement, or any part hereof, or the right of either party
thereafter to enforce each and every provision in accordance with the terms of
this Agreement.
9. Severability and Interpretation. In the event of a conflict
between the terms of this Agreement and any of the definitions or provisions in
the Stock Plan, the terms of this Agreement shall prevail. Whenever possible,
each provision of this Agreement and any portion hereof shall be interpreted in
such a manner as to be effective and valid under applicable law, rules and
regulations. If any convenant or other provision of this Agreement (or portion
thereof) shall be held to be invalid, illegal, or incapable of being enforced,
by reason of any rule of law, rule, regulation, administrative order, judicial
decision or public policy, all other conditions and provisions of this Agreement
shall, nevertheless, remain in full force and effect, and no covenant or
provision shall be deemed dependent upon any other convenant or provision (or
portion) unless so expressed herein. The parties hereto desire and consent that
the court or other body making such determination shall, to the extent necessary
to avoid any unenforceability, so reform such covenant or other provision or
portions of this Agreement to the minimum extent necessary so as to render the
same enforceable in accordance with the intent herein expressed.
10. Entire Agreement. This Agreement represents the
entire and integrated Employment Agreement between Executive and the Company and
supersedes all prior negotiations, representations and agreements, either
written or oral, with respect thereto.
11. Notice. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the other party, by
registered or certified mail, return receipt
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requested, postage prepaid, or by overnight courier, addressed as set forth in
this Section 11 or to such other address as may hereafter be notified by such
party to the other party. Notices and communications shall be effective at the
time they are given in the foregoing manner (provided that notice by mail shall
be deemed given three business days after posting).
If to Executive:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Company:
▇▇▇▇▇▇▇ Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Secretary
12. Amendments and Waivers. No modification, amendment
or waiver of any of the provisions of this Agreement shall be effective unless
in writing specifically referring hereto, and signed by the parties hereto.
13. Assignments. This Agreement shall inure to the
benefit of, and be binding upon, the Company, its successors and assigns and/or
any other entity which shall succeed to the business presently being conducted
by the Company. Being a contract for personal services, neither this Agreement
nor any rights hereunder shall be assigned by Executive.
14. Choice of Forum and Governing Law. The parties agree
that: (i) any litigation involving any noncompliance with or breach of this
Agreement, or regarding the interpretation, validity and/or enforceability of
this Agreement, shall be filed and conducted in the state or federal courts in
St. Louis County, Missouri; and (ii) this Agreement shall be interpreted in
accordance with and governed by the laws of the State of Missouri, without
regard for any conflict of law principles.
15. Headings. Section headings are provided in this
Agreement for convenience only and shall not be deemed to substantively alter
the content of such sections.
16. Indemnification. To the fullest extent permitted by
the indemnification provisions of the Certificate of Incorporation and By-laws
of the Company in effect as of the date of
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this Agreement and the indemnification provisions of the corporation statute of
the jurisdiction of the Company's incorporation in effect from time to time
(collectively, the "Indemnification Provisions"), and in each case subject to
the conditions thereof, the Company shall (i) indemnify the Executive, as a
director and officer of the Company or a subsidiary of the Company or a trustee
or fiduciary of an employee benefit plan of the Company or a subsidiary of the
Company, or, if the Executive shall be serving in such capacity at the Company's
written request, as a director or officer of any other corporation (other than a
subsidiary of the Company) or as a trustee or fiduciary of an employee benefit
plan not sponsored by the Company or a subsidiary of the Company, against all
liabilities and reasonable expenses that may be incurred by the Executive in any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether formal or informal,
because the Executive is or was a director or officer of the Company, a director
or officer of such other corporation or a trustee or fiduciary of such employee
benefit plan, and against which the Executive may be indemnified by the Company,
and (ii) pay for or reimburse the reasonable expenses incurred by the Executive
in the defense of any proceeding to which the Executive is a party because the
Executive is or was a director or officer of the Company, a director or officer
of such other corporation or a trustee or fiduciary of such employee benefit
plan. The rights of the Executive under the Indemnification Provisions shall
survive the termination of the employment of the Executive by the Company.
17. Legal Fees. The Company shall reimburse Executive
for the reasonable fees and out-of-pocket disbursements of his counsel incurred
in connection with the negotiation and execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
By:
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Name:
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Title:
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Exhibit A
Form of Warrant
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES ACT, AND NEITHER THIS WARRANT NOR THE SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT CAN BE SOLD OR TRANSFERRED EXCEPT
PURSUANT TO THE REGISTRATION PROVISIONS OF SUCH ACTS OR AN EXEMPTION THEREFROM.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER CONTAINED IN A CERTAIN
STOCK PURCHASE AGREEMENT BY AND AMONG THE COMPANY AND THE PURCHASER HEREOF, A
COPY OF WHICH IS AVAILABLE AT THE PRINCIPAL OFFICES OF THE COMPANY.
550,000 Warrants
VOID AFTER DECEMBER 12, 2009
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or
registered assigns, is the owner of the number of Warrants set forth above, each
of which entitles the owner thereof to purchase, upon presentation and surrender
of this Warrant Certificate with the Form of Election to Purchase attached
hereto duly executed at any time prior to 4:00 P.M. (St. Louis time) on December
12, 2009, at the principal executive offices of ▇▇▇▇▇▇▇ Communications, Inc., a
Delaware corporation (the "Company"), one fully paid and nonassessable share of
the Common Stock, $.01 par value ("Common Stock") of the Company at the purchase
price of $3.00 per share ("Purchase Price"). No fractional shares of Common
Stock will be issued upon exercise of the Warrants evidenced hereby.
The number of Warrants evidenced by this Warrant Certificate
(and the number of shares of Common Stock which may be purchased upon exercise
thereof) set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of December 13, 1999, based on the shares of Common Stock
of the Company as constituted at such date. The Purchase Price may be paid by
delivering to the Company cash and/or shares of Common Stock or other securities
issued by the Company having a "Market Price" (as defined in paragraph (ii)(E)
below) equal to the amount of the Purchase Price. Notwithstanding anything
contained herein to the contrary, the holder of this Warrant may exercise any
number of Warrants and purchase the shares of Common Stock issuable upon
exercise thereof through a Cashless Exercise (as defined below). As used herein,
a "Cashless Exercise" shall mean an exercise of a Warrant or Warrants without
12
payment of the Purchase Price (in cash, shares of Common Stock or other
securities issued by the Company) and, in exchange for the surrendered Warrant
or Warrants, receiving such number of shares of Common Stock equal to the
product of (1) that number of shares of Common Stock for which such Warrant or
Warrants are exercised and which would otherwise be issuable in the event of an
exercise with payment of the Purchase Price and (2) the Cashless Exercise Ratio
(as defined below). As used herein, the "Cashless Exercise Ratio" shall equal a
fraction, the numerator of which is the excess of the Market Price per share of
the Common Stock on the date of exercise over the Purchase Price as of the date
of exercise and the denominator of which is the Market Price per share of the
Common Stock on the date of exercise. In connection with the holder's option to
elect a Cashless Exercise, the holder must specify the number of Warrants that
are being exercised (without giving effect to such Cashless Exercise). All
provisions of this Agreement shall be applicable with respect to a Cashless
Exercise of less than the full number of Warrants represented by this Warrant
Certificate.
In order to prevent dilution of the exercise rights granted
under this Warrant, the Purchase Price shall be subject to adjustment from time
to time as follows:
(i) If and whenever on or after the original date of
issuance of this Warrant, the Company issues or sells, or in accordance with
subparagraphs (A) or (B) of paragraph (ii) below is deemed to have issued or
sold, any shares of its Common Stock for a consideration per share less than the
Purchase Price in effect immediately prior to the time of such issue or sale,
then forthwith upon such issue or sale the Purchase Price shall be reduced to
the Purchase Price determined by dividing (A) the sum of (I) the product derived
by multiplying the Purchase Price in effect immediately prior to such issue or
sale times the number of shares of Common Stock Deemed Outstanding immediately
prior to such issue or sale, plus (II) the consideration, if any, received by
the Company upon such issue or sale, by (B) the number of shares of Common Stock
Deemed Outstanding immediately after such issue or sale; provided that there
shall be no adjustment in the Purchase Price as a result of any issuance or sale
(or deemed issuance or sale) of shares of Common Stock in any of the following
transactions: (A) upon conversion of shares of the Company's Series A Preferred
Stock; (B) to officers, directors or employees of, or consultants or advisers
to, the Corporation pursuant to stock option or stock purchase plans, warrants
or agreements on terms from time to time approved by the Board of Directors; (C)
in connection with acquisitions from time to time approved by the Board of
Directors; and (D) for which adjustment of the Purchase Price is made pursuant
to paragraph (I) or paragraph (J) of clause (ii) below. Whenever the Purchase
Price is adjusted, the holder of this Warrant shall thereafter be entitled to
purchase at the new Purchase Price the number of shares of Common Stock obtained
by multiplying the Purchase Price in effect immediately prior to such adjustment
by the number of shares of Common Stock purchasable pursuant hereto immediately
prior to such adjustment and dividing the product thereof by the new Purchase
Price. As used herein, the term "Common Stock Deemed Outstanding" means, at any
given time, the number of shares of Common Stock actually outstanding at such
time, plus the number of shares of Common Stock deemed to be outstanding
pursuant to subparagraphs (A) and (B) of paragraph (ii) below.
(ii) For purposes of determining the adjusted
Purchase Price, the following shall be applicable:
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(A) Issuance of Rights or Options. If and
whenever on or after the original date of issuance of this Warrant the Company
in any manner grants any rights or options to subscribe for or to purchase
Common Stock or any stock or other securities convertible into or exchangeable
for Common Stock (such rights or options being herein called "Options" and such
convertible or exchangeable stock or securities being herein called "Convertible
Securities") and the price per share for which Common Stock is issuable upon the
exercise of such Options or upon conversion or exchange of such Convertible
Securities is less than the Purchase Price in effect immediately prior to the
time of the granting of such Options, then the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon conversion or
exchange of the total maximum amount of such Convertible Securities shall be
deemed to be outstanding and to have been issued and sold by the Company at the
time of the granting of such Options for such price per share. For purposes of
this paragraph, the "price per share for which Common Stock is issuable" shall
be determined by dividing (I) the total amount, if any, received or receivable
by the Company as consideration for the granting of such Options, plus the
minimum aggregate amount of additional consideration payable to the Company upon
exercise of all such Options, plus in the case of such Options which relate to
Convertible Securities, the minimum aggregate amount of additional consideration
if any, payable to the Company upon the issuance or sale of such Convertible
Securities and the conversion or exchange thereof, by (II) the total maximum
number of shares of Common Stock issuable upon the exercise of such Options or
upon the conversion or exchange of all such Convertible Securities issuable upon
the exercise of such Options. No further adjustment of the Purchase Price shall
be made when Convertible Securities are actually issued upon the exercise of
such Options or when Common Stock is actually issued upon the exercise of such
Options or the conversion or exchange of such Convertible Securities.
(B) Issuance of Convertible Securities.
If and whenever on or after the original date of issuance of this Warrant the
Company in any manner issues or sells any Convertible Securities and the price
per share for which Common Stock is issuable upon such conversion or exchange of
such Convertible Securities is less than the Purchase Price in effect
immediately prior to the time of such issue or sale, then the maximum number of
shares of Common Stock issuable upon conversion or exchange of such Convertible
Securities shall be deemed to be outstanding and to have been issued and sold by
the Company at the time of the issuance or sale of such Convertible Securities
for such price per share. For the purposes of this paragraph, the "price per
share for which Common Stock is issuable" shall be determined by dividing (I)
the total amount received or receivable by the Company as consideration for the
issue or sale of such Convertible Securities, plus the minimum aggregate amount
of additional consideration, if any, payable to the Company upon the conversion
or exchange thereof, by (II) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities. No
further adjustment of the Purchase Price shall be made when Common Stock is
actually issued upon the conversion or exchange of such Convertible Securities,
and if any such issue or sale of such Convertible Securities is made upon
exercise of any Options for which adjustments of the Purchase Price had been or
are to be made pursuant to other provisions hereof, no further adjustment of the
Purchase Price shall be made by reason of such issue or sale.
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(C) Change in Option Price or Conversion
Rate. If the exercise price provided for in any Options, the additional
consideration, if any, payable upon the conversion or exchange of any
Convertible Securities, or the rate at which any Convertible Securities are
convertible into or exchangeable for Common Stock change at any time, the
Purchase Price in effect at the time of such change shall be readjusted to the
Purchase Price which would have been in effect at such time had such Options or
Convertible Securities provided for such changed exercise price, additional
consideration or changed conversion rate, as the case may be, at the time
initially granted, issued or sold; provided that if such adjustment would result
in an increase of the Purchase Price then in effect, such adjustment shall not
be effective until 30 days after written notice thereof has been given by the
Company to the holder of this Warrant.
(D) Treatment of Expired Options and
Unexercised Convertible Securities. Upon the expiration of any Option or the
termination of any right to convert or exchange any Convertible Security without
the exercise of any such Option or right, the Purchase Price then in effect
hereunder shall be adjusted to the Purchase Price which would have been in
effect at the time of such expiration or termination had such Option or
Convertible Security, to the extent outstanding immediately prior to such
expiration or termination, never been issued; provided that if such expiration
or termination would result in an increase in the Purchase Price then in effect,
such increase shall not be effective until 30 days after written notice thereof
has been given to the holder of this Warrant.
(E) Calculation of Consideration Received.
If any Common Stock, Options or Convertible Securities are issued or sold or
deemed to have been issued or sold for cash, the consideration received therefor
shall be deemed to be the net amount received by the Company therefor. In case
any Common Stock, Options or Convertible Securities are issued or sold or deemed
to have been issued or sold for consideration other than cash, the amount of the
consideration other than cash received by the Company shall be the fair value of
such consideration, except where such consideration consists of securities, in
which case the amount of consideration received by the Company shall be the
Market Price thereof as of the date of receipt. If any Common Stock, Options or
Convertible Securities are issued to the owners of the non-surviving entity in
connection with any merger in which the Company is the surviving corporation,
the amount of consideration therefor shall be deemed to be the fair value of
such portion of the net assets and business of the nonsurviving entity as is
attributable to such Common Stock, Options or Convertible Securities, as the
case may be. The fair value of any consideration other than cash and securities
shall be determined by a majority of the Company's board of directors (including
two-thirds of its Outside Directors). As used herein, the term "Market Price" of
any security means the average of the closing sales prices of such security on
all securities exchanges on which such security may at the time be listed, or,
if there has been no sale on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
New York time, or, if on any day such security is not quoted in the NASDAQ
System, the average of the highest bid and lowest asked prices on such day in
the domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar successor organization,
A-4
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in each such case averaged over a period of 21 days consisting of the day as of
which "Market Price" is being determined and the 20 consecutive business days
prior to such day; provided, however, that, if at any time such security is not
listed on any securities exchange or quoted in the NASDAQ System or the
over-the-counter market, the "Market Price" shall be the fair value thereof
determined jointly by the Company and the holder of this Warrant. If such
parties are unable to reach agreement within a reasonable period of time, such
fair value shall be determined by an independent appraiser experienced in
valuing securities jointly selected by the Company and the holder of this
Warrant. The determination of such appraiser shall be final and binding upon the
parties, and the Company shall pay the fees and expenses of such appraiser.
(F) Integrated Transactions. In case any
Option is issued in connection with the issue or sale of other securities of the
Company, together comprising one integrated transaction in which no specific
consideration is allocated to such Option by the parties thereto, the Option
shall be deemed to have been issued for a consideration of $.01.
(G) Treasury Shares. The number of shares
of Common Stock outstanding at any given time does not include shares owned or
held by or for the account of the Company or any Subsidiary of the Company, and
the disposition of any shares so owned or held shall be considered an issue or
sale of Common Stock.
(H) Record Date. If the Company takes a
record of the holders of Common Stock for the purpose of entitling them (a) to
receive a dividend or other distribution payable in Common Stock, Options or
Convertible Securities or (b) to subscribe for or purchase Common Stock, Options
or Convertible Securities, then such record date shall be deemed to be the date
of the issue or sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or upon the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(I) Subdivision or Combination of Common
Stock. If the Company at any time subdivides (by any stock split, stock
dividend, recapitalization or otherwise) its outstanding shares of Common Stock
into a greater number of shares, the Purchase Price in effect immediately prior
to such subdivision shall be proportionately reduced, and if the Company at any
time combines (by reverse stock split or otherwise) its outstanding shares of
Common Stock into a smaller number of shares, the Purchase Price in effect
immediately prior to such combination shall be proportionately increased.
(J) Reorganization, Reclassification,
Consolidation, Merger or Sale. Any reorganization, reclassification,
consolidation, merger, sale of all or substantially all of the Company's assets
to another Person or other transaction which is affected in such a manner that
holders of Common Stock are entitled to receive (either directly or upon
subsequent liquidation) stock, securities or assets with respect to or in
exchange for Common Stock is referred to herein as an "Organic Change". Prior to
the consummation of any Organic Change, the Company shall make appropriate
provision to insure that the holder of this Warrant shall thereafter have the
right to acquire and receive, in lieu of or in addition to (as the case may be)
the shares of Common Stock immediately theretofore acquirable and receivable
upon the exercise of
A-5
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this Warrant, such shares of stock, securities or assets as such holder would
have received in connection with such Organic Change if the holder of this
Warrant had exercised this Warrant immediately prior to such Organic Change. In
each such case, the Company shall also make appropriate provision to insure that
the adjustment provisions of this Warrant shall thereafter continue to apply
(including, in the case of any such consolidation, merger or sale in which the
successor entity or purchasing entity is other than the Company, an immediate
adjustment of the Purchase Price to the value for the Common Stock reflected by
the terms of such consolidation, merger or sale, and a corresponding immediate
adjustment in the number of shares of Common Stock acquirable and receivable
upon exercise of this Warrant, if the value so reflected is less than the
Purchase Price in effect immediately prior to such consolidation, merger or
sale). The Company shall not effect any consolidation, merger or sale, unless
prior to the consummation thereof, the successor corporation (if other than the
Company) resulting from such consolidation or merger or the corporation
purchasing such assets assumes by written instrument the obligation to deliver
to the holder of this Warrant such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
acquire.
(K) Certain Events. If any event occurs of
the type contemplated by the adjustment provisions of this Warrant but not
expressly provided for by such provisions (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or other rights with
equity features), then the Company's board of directors shall make an
appropriate adjustment in the Purchase Price so as to protect the rights of the
holder of this Warrant; provided that no such adjustment shall increase the
Purchase Price as otherwise determined pursuant hereto or decrease the number of
shares of Common Stock issuable upon exercise of this Warrant.
(L) Notices. Immediately upon any
adjustment of the Purchase Price, the Company shall give written notice thereof
to the holder of this Warrant, setting forth in reasonable detail and certifying
the calculation of such adjustment. The Company shall also give written notice
to the holder of this Warrant at least 20 days prior to the date on which the
Company closes its books or takes a record (I) with respect to any dividend or
distribution upon the Common Stock, (II) with respect to any pro rata
subscription offer to holders of the Common Stock or (III) for determining
rights to vote with respect to any Organic Change, dissolution or liquidation,
and the date on which any Organic Change shall take place.
(M) Purchase Rights. If at any time the
Company grants, issues or sells any Options, Convertible Securities or rights to
purchase stock, warrants, securities or other property (the "Purchase Rights")
pro rata to each record holder of the Common Stock, in its capacity as such
record holder, then the holder of this Warrant shall thereafter be entitled to
acquire, in addition to the shares of Common Stock acquirable and receivable
upon exercise of this Warrant, and upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which such holder could have acquired if
such holder had held the number of shares of Common Stock acquirable upon
exercise of this Warrant immediately before the date on which a record is taken
for the grant, issuance or sale of such Purchase Rights, or, if no such record
is taken, the date as of which the record holders of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
A-6
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The Company covenants that it will at all times reserve and
keep available out of its authorized Common Stock, solely for the purpose of
issuance upon exercise of this Warrant, such number of shares of Common Stock as
shall from time to time be issuable upon the exercise of this Warrant; and if at
any time the number of authorized but unissued and issued but not outstanding
shares of the Common Stock, on a fully diluted basis, shall not be sufficient to
effect the exercise of this Warrant at the Purchase Price then in effect, the
Company will take such corporate action as may, in the opinion of its counsel,
be necessary to increase its authorized but unissued or issued but not
outstanding shares of the Common Stock to such number of shares as shall be
sufficient for such purpose. The Company covenants that all shares of Common
Stock which shall be so issuable, when issued upon conversion of this Warrant,
shall be duly and validly issued, fully-paid and non-assessable.
The issuance of certificates for shares of the Common Stock
upon the exercise of this Warrant shall be made without charge to the holder
hereof for any issuance tax in respect of the issuance of such certificates or
other cost incurred by the Company in connection with such exercise and the
related issuance of shares of Common Stock.
No holder of this Warrant Certificate shall be entitled to
vote or receive dividends or be deemed the holder of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be construed to
confer upon the holder hereof, as such, any of the rights of a shareholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any recapitalization, issue of
stock, reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise), or except as provided above, to receive notice of
meetings, or to receive dividends of subscription rights or otherwise, until the
Warrant or Warrants evidenced by this Warrant Certificate shall have been
exercised.
Every holder of this Warrant Certificate by accepting the same
consents and agrees with the Company that:
(a) The Warrant Certificates are transferable only on
the registry books of the Company if surrendered at the
principal office of the Company, duly endorsed, or accompanied
by a proper instrument of transfer; and
(b) The Company may deem and treat the person in
whose name the Warrant Certificate is registered as the
absolute owner thereof and of the Warrants evidenced thereby
(notwithstanding any notations of ownership or writing on the
Warrant Certificates made by anyone other than the Company)
for all purposes whatsoever, and the Company shall not be
affected by any notice to the contrary.
All notices, demands and other communications provided for
hereunder shall be in writing and shall be deemed to have been given when
delivered personally to the recipient, one Business Day after being sent to the
recipient by reputable express courier service (charges
A-7
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prepaid) or three Business Days after being mailed to the recipient by certified
or registered mail, return receipt requested and postage prepaid. Such notices,
demands and other communications shall be delivered or sent (i) to the Company
at its principal executive offices and (ii) to the holder of this Warrant at its
address as it appears on the Company's records (or such other address as may be
indicated by the holder of this Warrant upon written notice to the Company).
THIS WARRANT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE SUBSTANTIVE LAWS OF THE STATE OF MISSOURI, WITHOUT REGARD TO ITS CONFLICTS
OF LAWS PRINCIPLES.
Any legal action or proceeding with respect to this Warrant
may be brought in the courts of the City of St. Louis, State of Missouri, or of
the United States of America for the Eastern District of Missouri in St. Louis,
Missouri, and, by execution and issuance or acceptance of this Warrant, the
Company and the holder of this Warrant hereby accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Company and the holder of this Warrant further irrevocably
consents to the service of process out of any of the aforementioned courts in
any action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Company at its principal executive
offices and to the holder of this Warrant at its address as it appears on the
Company's records (or such other address as may be indicated by the holder of
this Warrant upon written notice to the Company), such service to become
effective seven days after such mailing. Nothing herein shall affect the right
of the Company or the holder of this Warrant to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed in
any other jurisdiction. The Company and the holder of this Warrant further
hereby irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Warrant brought in the courts referred to above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
[The remainder of this page is intentionally left blank.]
A-8
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed and issued by its duly authorized officer as of December 13, 1999.
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
By:
ATTEST:
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FORM OF ELECTION TO PURCHASE
(TO BE EXECUTED IF HOLDER DESIRES TO EXERCISE THE WARRANT CERTIFICATE.)
To ▇▇▇▇▇▇▇ Communications, Inc.
The undersigned hereby irrevocably elects to exercise (check the
box that applies)
[ ] by payment of the Purchase Price
[ ] by "Cashless Exercise"
Warrants represented by this Warrant Certificate to purchase the
shares of Common Stock issuable upon the exercise of such Warrants (and requests
that the Company issue a new Warrant Certificate for the remainder, if any, of
the Warrants to the undersigned) and requests that certificates for such shares
be issued in the name of:
Please insert social security
or other identifying number
--------------------------------------------------------------------------------
(Please print name and address)
Dated: ,
------------------
--------------------------------------------------
Signature
(SIGNATURE MUST CONFORM IN ALL RESPECTS TO NAME OF
HOLDER AS SPECIFIED ON THE FACE OF THIS WARRANT
CERTIFICATE)
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FORM OF ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH HOLDER DESIRES
TO TRANSFER THE WARRANT CERTIFICATE.)
FOR VALUE RECEIVED hereby sells, assigns and
transfers unto Warrants evidenced by this Warrant Certificate,
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint Attorney, to transfer the within
Warrant Certificate on the books of the within-named Company, with full power of
substitution.
Dated: ,
-------------------
-----------------------------------------
Signature
(SIGNATURE MUST CORRESPOND IN ALL
RESPECTS TO THE NAME OF HOLDER AS
SPECIFIED ON THE FACE OF THIS WARRANT
CERTIFICATE).
A-10
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EXHIBIT B
Instruments of Accession
Instrument of Accession
Reference is made to that certain Stockholders' Agreement
dated as of November 18, 1998, as amended as of December 14, 1998 and July 20,
1999, a copy of which is attached hereto (as amended and in effect from time to
time, the "Stockholders' Agreement"), among ▇▇▇▇▇▇▇ Communications, Inc., a
Delaware corporation (the "Company"), and the Stockholders of the Company (as
defined therein).
The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in order to become the
owner or holder of 425,000 shares (the "Shares") of the Common Stock $.01 par
value per share, of the Company, hereby agrees that by the undersigned's
execution hereof (a) the undersigned is a Management Stockholder party to the
Stockholders' Agreement subject to all of the restrictions, conditions and
obligations applicable to Management Stockholders set forth in the Stockholders'
Agreement and the Securities Purchase Agreement (as defined in the Stockholders'
Agreement), and entitled to all of the rights and benefits of a Management
Stockholder thereunder, and (b) all of the Shares (and any and all shares of
stock of the Company issued in respect thereof) constitute Restricted Securities
subject to all the restrictions, conditions and obligations applicable to, and
entitled to all of the rights and benefits of, Restricted Securities as set
forth in the Stockholders' Agreement and the Securities Purchase Agreement. This
Instrument of Accession shall take effect and shall become a part of the
Stockholders' Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
State of New York.
Signature:
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
--------------------------
--------------------------
Date:
--------------------------
Accepted:
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
By:
-------------------------
Date:
-----------------------
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Instrument of Accession
Reference is made to that certain Shareholders' Agreement
dated as of August 14, 1998, as amended as of November 18, 1998 and December 13,
1999, a copy of which is attached hereto (as amended and in effect from time to
time, the "Shareholders' Agreement"), among ▇▇▇▇▇▇▇ Communications, Inc., a
Delaware corporation (the "Company"), and the Shareholders of the Company (as
defined therein).
The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in order to become the
owner or holder of 425,000 shares (the "Shares") of the Common Stock, $.01 par
value per share, of the Company, hereby agrees that by the undersigned's
execution hereof (a) the undersigned is an Employee Shareholder party to the
Shareholders' Agreement subject to all of the restrictions, conditions and
obligations applicable to Employee Shareholders set forth in the Shareholders'
Agreement, and entitled to all of the rights and benefits of an Employee
Shareholder thereunder, and (b) all of the Shares (and any and all shares of
stock of the Company issued in respect thereof) are subject to all the
restrictions, conditions and obligations applicable to, and entitled to all of
the rights and benefits of, Shares as set forth in the Shareholders' Agreement.
This Instrument of Accession shall take effect and shall become a part of the
Shareholders' Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
State of Missouri.
Signature:
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
------------------------------
------------------------------
Date:
------------------------------
Accepted:
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
By:
--------------------------
Date:
-----------------------
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Instrument of Accession
Reference is made to that certain Registration Rights Agreement dated
as of November 18, 1998, a copy of which is attached hereto (as amended and in
effect from time to time, the "Registration Rights Agreement"), among ▇▇▇▇▇▇▇
Communications, Inc., a Delaware corporation (the "Company"), and the
Stockholders of the Company (as defined therein).
The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in order to become the owner or
holder of 425,000 shares (the "Shares") of the $.01 par value Common Stock of
the Company, hereby agrees that by the undersigned's execution hereof (a) the
undersigned is a Stockholder party to the Registration Rights Agreement subject
to all of the restrictions and conditions applicable to Stockholders set forth
in the Registration Rights Agreement, and entitled to all of the rights and
benefits of a Stockholder thereunder, and (b) all of the Shares (and any and all
shares of stock of the Company issued in respect thereof) constitute Restricted
Securities subject to all the restrictions and conditions applicable to, and
entitled to all of the rights and benefits of, Restricted Securities as set
forth in the Registration Rights Agreement. This Instrument of Accession shall
take effect and shall become a part of the Registration Rights Agreement
immediately upon execution.
Executed as of the date set forth below under the laws of the State of
New York.
Signature:
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
-----------------------------------
-----------------------------------
Date:
-----------------------------------
Accepted:
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
By:
-------------------------------
Date:
---------------------------
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EXHIBIT C
Form of Amendment to Section 7.5 of Shareholders Agreement dated as of August
14, 1998, as amended by Agreement dated as of November 18, 1998.
"7.5. Termination of Employment. For purposes of any purchase
of any or all of an Employee Shareholder's Shares pursuant to Section 5, the
purchase price of the Shares shall be the greater of (i) the price determined by
the Board of Directors of the Corporation pursuant to Exhibit B of this
Agreement, or (ii) the latest price per share at which shares were traded in an
arm's length transaction, unless such Employee Shareholder was terminated for
"cause," in which case the purchase price for the Shares shall be the lesser of
(i) the price determined by the Board of Directors of the Corporation pursuant
to Exhibit B of this Agreement, or (ii) the book value per share of the
Corporation as determined as of the end of the prior fiscal year."
C-1