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EXHIBIT 10.44A
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL REGISTERED UNDER SAID ACT OR SUCH LAWS OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION DOES
NOT VIOLATE THE PROVISIONS THEREOF.
THIS WARRANT ALSO IS SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND
OBLIGATIONS, TO WHICH ANY TRANSFEREE AGREES BY HIS ACCEPTANCE HEREOF,
AS SET FORTH IN (1) THE SUBSCRIPTION AGREEMENT BETWEEN THE ISSUER AND
INITIAL PURCHASER, AND (2) THE CERTIFICATE OF INCORPORATION OF THE
COMPANY, A COPY OF WHICH AGREEMENT AND CERTIFICATE MAY BE OBTAINED FROM
THE COMPANY. NO TRANSFER OF SUCH WARRANT WILL BE MADE ON THE BOOKS OF
THE COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS
OF SUCH AGREEMENT AND BY AN AGREEMENT OF THE TRANSFEREE TO BE BOUND BY
THE RESTRICTIONS SET FORTH IN SAID SUBSCRIPTION AGREEMENT AND
CERTIFICATE OF INCORPORATION.
STOCK PURCHASE WARRANT
Date of Issuance: February 3, 2000 Certificate No. W-2
For value received, BroadbandNOW, Inc., a Delaware corporation
(the "Company"), hereby grants to DOTCOM Limited Partnership ("DOTCOM"), or its
transferees and assigns, the right to purchase from the Company a total of
100,000 Warrant Shares (as defined herein) at a price per share of $18.80 (the
"Initial Exercise Price"). This Warrant is the warrant (the "Warrant") issued
pursuant to the terms of the Subscription Agreement dated as of February 3, 2000
between the Company and DOTCOM. The Initial Exercise Price and the number of
Warrant Shares (and the amount and kind of other securities) for which this
Warrant is exercisable shall be subject to adjustment as provided herein.
Certain capitalized terms used herein are defined in Section 3 hereof.
This Warrant is subject to the following provisions:
SECTION 1. Exercise of Warrant.
1A. Exercise Period. The purchase rights represented by this
Warrant may be exercised, at any time, in whole or in part, after the date of
issuance of this Warrant and before 5:00 p.m., Dallas, Texas time, on the fifth
anniversary of date of issuance of this Warrant or, if such day is not a
Business Day, on the next preceding Business Day.
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1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised
when all of the following items have been delivered to the Company (the
"Exercise Time"):
(a) a completed Exercise Agreement, as described in
Section 1C below, executed by the Person exercising all or part of the purchase
rights represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if the Purchaser is not the Registered Holder, an
Assignment or Assignments in the form set forth in Exhibit II attached hereto
evidencing the assignment of this Warrant to the Purchaser; and
(d) either (i) a check or wire transfer payable to
the Company in an amount equal to the product of the Exercise Price (as such
term is defined in Section 2) multiplied by the number of Warrant Shares being
purchased upon such exercise (the "Aggregate Exercise Price"), (ii) the
surrender to the Company of securities of the Company or its subsidiaries having
a value equal to the Aggregate Exercise Price of the Warrant Shares being
purchased upon such exercise (which value in the case of debt securities shall
be the principal amount thereof and in the case of shares of Common Stock shall
be the Fair Market Value thereof), or (iii) the delivery of a notice to the
Company that the Purchaser is exercising the Warrant by authorizing the Company
to reduce the number of Warrant Shares subject to the Warrant by the number of
shares having an aggregate Fair Market Value equal to the Aggregate Exercise
Price.
(ii) Certificates for Warrant Shares purchased upon
exercise of this Warrant shall be delivered by the Company to the Purchaser
within ten days after the date of the Exercise Time together with any cash
payable in lieu of a fraction of a share pursuant to the provisions of Section
11 hereof. Unless this Warrant has expired or all of the purchase rights
represented hereby have been exercised, the Company shall prepare a new Warrant,
substantially identical hereto, representing the rights formerly represented by
this Warrant which have not expired or been exercised and shall, within such
ten-day period, deliver such new Warrant to the Person designated for delivery
in the Exercise Agreement.
(iii) The Warrant Shares issuable upon the exercise of
this Warrant shall be deemed to have been issued to the Purchaser at the
Exercise Time, and the Purchaser shall be deemed for all purposes to have become
the Registered Holder of such Warrant Shares at the Exercise Time.
(iv) The issuance of certificates for Warrant Shares upon
exercise of this Warrant shall be made without charge to the Registered Holder
or the Purchaser for any issuance tax in respect thereof or other cost incurred
by the Company in connection with such exercise and the related issuance of
Warrant Shares; provided, that the Company shall not be required to pay any
taxes in respect of the Warrant or Warrant Shares, with respect to any transfer
of the Warrant, which taxes shall be paid by the transferee prior to the
issuance of such Warrant Shares.
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(v) The Company shall not close its books against the
transfer of this Warrant or of any Warrant Shares issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant.
(vi) The Company shall assist and cooperate with the
Registered Holder or any Purchaser required to make any governmental filings or
obtain any governmental approvals prior to or in connection with any exercise of
this Warrant. The Company may in good faith suspend exercise of the Warrant
during the period reasonably necessary to obtain such approvals.
(vii) Notwithstanding any other provision hereof, if an
exercise of any portion of this Warrant is to be made in connection with a
public offering or a sale of the Company (pursuant to a merger, sale of stock,
or otherwise), such exercise may at the election of the Registered Holder be
conditioned upon the consummation of such transaction, in which case such
exercise shall not be deemed to be effective until immediately prior to the
consummation of such transaction.
(viii) The Company shall at all times reserve and keep
available out of its authorized but unissued Class A Common Stock solely for the
purpose of issuance upon the exercise of this Warrant, the maximum number of
Warrant Shares issuable upon the exercise of this Warrant. All Warrant Shares
which are so issuable shall, when issued and upon the payment of the applicable
Exercise Price, be duly and validly issued, fully paid and nonassessable and
free from all taxes, liens and charges except those created by actions of the
Registered Holder hereof. The Company shall take all such actions as may be
necessary to ensure that all such Warrant Shares may be so issued without
violation by the Company of any applicable law or governmental regulation or any
requirements of any domestic securities exchange upon which shares of Common
Stock or other securities constituting Warrant Shares may be listed (except for
official notice of issuance which shall be immediately delivered by the Company
upon each such issuance). The Company will use its best efforts to cause the
Warrant Shares, immediately upon such exercise, to be listed on any domestic
securities exchange upon which shares of Class A Common Stock or other
securities constituting Warrant Shares are listed, if any, at the time of such
exercise.
(ix) The Company shall not, and shall not permit its
subsidiaries to, directly or indirectly, by any action (including, without
limitation, reincorporation in a jurisdiction other than Delaware, amending its
Certificate of Incorporation or through any Organic Change (as defined in
Section 2D), issuance or sale of securities or any other voluntary action) avoid
or seek to avoid the observance or performance of any of terms of this Warrant
or impair or diminish its value (except for any action which ratably affects all
Warrant Shares and shares of Common Stock), but shall at all times in good faith
assist in the carrying out of all such terms of this Warrant. Without limiting
the generality of the foregoing, the Company shall (a) use its reasonable best
efforts to obtain all such authorizations, exemptions, or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant, and (b) not undertake
any reverse stock split, combination, reorganization, or other reclassification
of its capital stock which would have the effect of making this Warrant
exercisable for less than one share of Class A Common Stock.
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1C. Exercise Agreement. Upon any exercise of this Warrant, the
Purchaser shall deliver to the Company an Exercise Agreement in substantially
the form set forth as Exhibit I hereto, except that if the Warrant Shares are
not to be issued in the name of the Registered Holder, the Exercise Agreement
shall also state the name of the Person to whom the certificates for the Warrant
Shares are to be issued, and if the number of Warrant Shares to be issued does
not include all of the Warrant Shares purchasable hereunder, it shall also state
the name of the Person to whom a new Warrant for the unexercised portion of the
rights hereunder is to be issued, subject to the transfer restrictions set forth
in Section 5.
SECTION 2. Adjustment of Exercise Price and Number of Shares.
In order to prevent dilution of the rights granted under this Warrant, the
Initial Exercise Price shall be subject to adjustment from time to time as
provided in this Section 2 (as so adjusted, the "Exercise Price"), and the
number of Warrant Shares obtainable upon exercise of this Warrant shall be
subject to adjustment from time to time, each as provided in this Section 2;
provided, however, that there shall be no adjustment to the Exercise Price or to
the number of Warrant Shares acquirable upon exercise of the Warrant, as
provided in this Section 2 (an "Adjustment"), unless and until such Adjustment
together with any previous Adjustments to the Exercise Price or to the number of
Warrant Shares so acquirable which would otherwise have resulted in an
Adjustment were it not for this proviso, would require an increase or decrease
of at least 1% of the total number of Warrant Shares so acquirable at the time
of such Adjustment, in which event such Adjustment and all such previous
Adjustments shall immediately occur.
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2A. Adjustment for Certain Dividends and Distributions in
Consideration other than Securities of the Company. In the event that the
Company at any time or from time to time after the date hereof declares or makes
a dividend or other distribution with respect to the Class A Common Stock
payable in consideration other than additional shares of Class A Common Stock or
other securities of the Company, then in each such event the Exercise Price
shall be reduced to equal the amount determined by multiplying the Exercise
Price in effect immediately prior to such dividend or distribution by a
fraction, the numerator of which will be the Fair Market Value of the Class A
Common Stock immediately after such dividend or distribution and the denominator
of which will be the Fair Market Value of the Class A Common Stock immediately
before such dividend or distribution. Furthermore, upon each such adjustment to
the Exercise Price pursuant to this Section 2A, the number of Warrant Shares
acquirable upon the exercise of this Warrant shall be adjusted to equal the
number of shares determined by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant Shares acquirable
upon exercise of this Warrant immediately prior to such adjustment and dividing
the product thereof by the Exercise Price resulting from such adjustment.
2B. Adjustment for Dividends and Distributions in Securities
other than Class A Common Stock. In the event the Company at any time or from
time to time after the date hereof declares or makes a dividend or other
distribution with respect to the Class A Common Stock payable in securities of
the Company other than additional shares of Class A Common Stock, then in each
such event provision shall be made so that the Registered Holders of Warrants
shall receive upon exercise thereof, in addition to the number of shares of
Class A Common Stock receivable thereupon, the amount of securities of the
Company that they would have received had their Warrants been exercised prior to
the effective date of the issuance of such other securities.
2C. Subdivision or Combination of Common Stock. If the Company
at any time subdivides (by any stock split, stock dividend, recapitalization, or
otherwise) the Class A Common Stock into a greater number of shares or pays a
dividend or makes a distribution to holders of the Class A Common Stock in the
form of shares of Class A Common Stock, the Exercise Price in effect immediately
prior to such subdivision shall be proportionately reduced and the number of
Warrant Shares obtainable upon exercise of this Warrant shall be proportionately
increased. Subject to clause (b) of Section 1B(ix), if the Company at any time
combines (by reverse stock split or otherwise) the Common Stock into a smaller
number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
obtainable upon exercise of this Warrant shall be proportionately decreased.
2D. Organic Change. Any reincorporation, recapitalization,
reorganization, reclassification, consolidation, merger, sale of all or
substantially all of the Company's assets or other transaction which is effected
in such a way that holders of the Class A 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 ensure that each Registered Holder of
Warrants shall thereafter have the right to acquire and receive upon exercise
thereof, in lieu of or in addition to (as the case may be) the Warrant Shares
immediately theretofore acquirable and receivable upon exercise of such
Registered Holder's
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Warrants, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for the number of Warrant Shares immediately
theretofore acquirable and receivable upon exercise of such Registered Holder's
Warrants had such Organic Change not taken place. In any such case, the Company
shall make appropriate provision with respect to such Registered Holder's rights
and interests to ensure that the provisions hereof (including this Section 2)
shall thereafter be applicable to the Warrants. The Company shall not effect any
such Organic Change unless, prior to the consummation thereof, the successor
entity (if other than the Company) resulting from such Organic Change (including
a purchaser of all or substantially all the Company's assets) assumes by written
instrument the obligation to deliver to each Registered Holder of Warrants such
shares of stock, securities or assets as, in accordance with the foregoing
provisions, such Registered Holder may be entitled to acquire upon exercise of
Warrants.
2E. Certain Events. If any event occurs of the type
contemplated by the provisions of this Section 2 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
but excluding any Permitted Issuance), then the Company's Board of Directors
shall make an appropriate and equitable adjustment in the Exercise Price and the
number of Warrant Shares obtainable upon exercise of this Warrant so as to
protect the rights of the Registered Holder of this Warrant.
2F. Notices.
(i) Immediately upon any adjustment of the Exercise Price,
the Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
(ii) The Company shall give written notice to the
Registered Holder at least thirty (30) days prior to the date on which the
Company closes its books or takes a record (A) with respect to any dividend or
distribution upon the Class A Common Stock, (B) with respect to any pro rata
subscription offer to holders of Class A Common Stock, or (C) for determining
rights to vote with respect to any Organic Change, dissolution or liquidation.
(iii) The Company shall also give written notice to the
Registered Holder at least thirty (30) days prior to the date on which any
Organic Change, dissolution, or liquidation shall take place.
2G. Class B Common Stock and Class C Common Stock. The Company
shall not issue, or grant the right to purchase, from and after the date of the
issuance of this Warrant, (i) any shares of Class B Common Stock or Class C
Common Stock, (ii) any securities convertible into shares of Class B Common
Stock or Class C Common Stock or (iii) any other form of common equity with a
liquidation preference senior to the Class A Common Stock, except such issuances
or grants made prior to the date hereof.
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SECTION 3. Definitions. The following terms have the meanings
set forth below:
"Business Day" means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of Texas or is a
day on which banking institutions located in such state are authorized or
required by law or other governmental action to close.
"Class A Common Stock" means the Company's Class A Common
Stock, $0.001 par value. For purposes of Section 2 of this Warrant, the
definition of "Class A Common Stock" shall include any other common stock of the
Company with the exception of the Class B Common Stock and Class C Common Stock.
"Class B Common Stock" means the Company's Class B Common
Stock, $0.001 par value.
"Class C Common Stock" means the Company's Class C Common
Stock, $0.001 par value.
"Common Stock" means, collectively, the Class A Common Stock,
the Class B Common Stock and the Class C Common Stock, and any other class of
stock representing common equity of the Company.
"Fair Market Value" means (i) the average of the closing sales
prices of the Class A Common Stock on all domestic securities exchanges on which
the Class A Common Stock is listed, or (ii) if there have been no sales 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 (iii) if on any day the Class A
Common Stock is not so listed, the sales price for the Class A Common Stock as
of 4:00 P.M., Dallas, Texas time, as reported on the Nasdaq National Market, or
(iv) if the Class A Common Stock is not reported on the Nasdaq National Market,
the average of the representative bid and asked quotations for the Class A
Common Stock as of 4:00 P.M., Dallas, Texas time, as reported on the Nasdaq
interdealer quotation system, or any similar successor organization, in each
such case averaged over a period of twenty-one (21) trading days consisting of
the day as of which "Fair Market Value" is being determined and the 20
consecutive trading days prior to such day. Notwithstanding the foregoing, if at
any time of determination either (x) the Class A Common Stock is not registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, and
not listed on a national securities exchange or authorized for quotation in the
Nasdaq system, or (y) less than 25% of the outstanding Class A Common Stock is
held by the public free of transfer restrictions under the Securities Act of
1933, as amended, then Fair Market Value shall mean the price that would be paid
per share for the entire common equity interest in the Company in an orderly
sale transaction between a willing buyer and a willing seller, taking into
account the appropriate lack of liquidity of the Company's securities, using
valuation techniques then prevailing in the securities industry and assuming
full disclosure of all relevant information and a reasonable period of time for
effectuating such sale. Fair Market Value shall be determined by the Company's
Board of Directors in its good faith judgment. Notwithstanding the foregoing, a
majority of the Required Holders shall have the right to require that an
independent investment banking firm mutually acceptable to the Company and the
Required Holders determine Fair
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Market Value, which firm shall submit to the Company and the Warrant holders a
written report setting forth such determination. The expenses of such firm will
be borne by the Company, and the determination of such firm will be final and
binding upon all parties.
"Permitted Issuance" means any issuance by the Company of
shares of Class A Common Stock or options to purchase Class A Common Stock (a)
on or prior to the date hereof; (b) upon exercise of this Warrant; (c) upon the
conversion of any Preferred Stock, Class B Common Stock or Class C Common Stock
issued on or prior to the date hereof; (d) pursuant to an underwritten offering
of Common Stock registered under the Securities Act of 1933, as amended; and (e)
to employees of the Company pursuant to employee stock purchase or stock option
plans adopted or to be adopted by the Company for key employees and prior stock
option grants; provided, that, the aggregate number of shares (and underlying
shares of options) of Class A Common Stock issued pursuant to this clause (e)
shall not exceed 6,000,000 (as adjusted to provide for any dividends, stock
distributions, splits, combinations or recapitalizations).
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization or
government or department or agency thereof.
"Preferred Stock" means the Company's Series A Convertible
Preferred Stock.
"Registered Holder" means the holder of this Warrant as
reflected in the records of the Company maintained pursuant to the provisions of
Section 10.
"Required Holders" means the holders of a majority of the
purchase rights represented by this Warrant as originally issued which remain
outstanding and unexercised.
"Warrant Shares" means shares of the Company's Class A Common
Stock issuable upon exercise of the Warrant; provided, that if the securities
issuable upon exercise of the Warrant are issued by an entity other than the
Company or there is a change in the class of securities so issuable, then the
term "Warrant Shares" shall mean shares of the security issuable upon exercise
of the Warrant if such security is issuable in shares, or shall mean the
equivalent units in which such security is issuable if such security is not
issuable in shares.
SECTION 4. No Voting Rights, Limitations of Liability. This
Warrant shall not entitle the Registered Holder hereof to any voting rights or
other rights as a stockholder of the Company. No provision hereof, in the
absence of affirmative action by the Registered Holder to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Registered
Holder shall give rise to any liability of such Registered Holder for the
Exercise Price of Warrant Shares acquirable by exercise hereof or as a
stockholder of the Company.
SECTION 5. Transferability. This Warrant and all rights
hereunder are transferable in whole without charge to the Registered Holder,
upon surrender of this Warrant with a properly executed Assignment (in the form
of Exhibit II hereto) at the principal office of the Company.
SECTION 6. Warrant Exchangeable for Different Denominations.
This Warrant is exchangeable, upon the surrender hereof by the Registered Holder
at the principal office of the
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Company, for new Warrants of like tenor representing in the aggregate the
purchase rights hereunder, and each of such new Warrants shall represent such
portion of such rights as is designated by the Registered Holder at the time of
such surrender. At the request of the Registered Holder (pursuant to a transfer
of Warrants or otherwise), this Warrant may be exchanged for one or more
Warrants to purchase Common Stock. The date the Company initially issues this
Warrant shall be deemed to be the date of issuance hereof regardless of the
number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant shall be issued. All Warrants
representing portions of the rights hereunder are referred to herein as the
"Warrants."
SECTION 7. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction, or mutilation
of any certificate evidencing this Warrant, and in the case of any such loss,
theft, or destruction, upon receipt of indemnity reasonably satisfactory to the
Company (provided, that if the Registered Holder is a financial institution or
other institutional investor its own Agreement shall be satisfactory), or, in
the case of any such mutilation upon surrender of such certificate, the Company
shall (at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the same rights represented by such lost,
stolen, destroyed, or mutilated certificate and dated the date of such lost,
stolen, destroyed, or mutilated certificate.
SECTION 8. Notices. Except as otherwise expressly provided
herein, all notices and deliveries referred to in this Warrant shall be in
writing, shall be delivered personally, sent by registered or certified mail,
return receipt requested and postage prepaid or sent via nationally recognized
overnight courier or via facsimile, and shall be deemed to have been given when
so delivered (or when received, if delivered by any other method) if sent (i) to
the Company, at its principal executive offices, and (ii) to a Registered
Holder, at such Registered Holder's address as it appears in the records of the
Company (unless otherwise indicated by any such Registered Holder).
SECTION 9. Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrant may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the prior written consent of
the Required Holders.
SECTION 10. Warrant Register. The Company shall maintain at
its principal executive offices books for the registration and the registration
of transfer of the Warrant. The Company may deem and treat the Registered Holder
as the absolute owner hereof (notwithstanding any notation of ownership or other
writing thereon made by anyone) for all purposes and shall not be affected by
any notice to the contrary.
SECTION 11. Fractions of Shares. The Company may, but shall
not be required to, issue a fraction of a Warrant Share upon the exercise of
this Warrant in whole or in part. As to any fraction of a share which the
Company elects not to issue, the Company shall make a cash payment in respect of
such fraction in an amount equal to the same fraction of the Fair Market Value
of a Warrant Share on the date of such exercise.
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SECTION 12. Descriptive Headings, Governing Law. The
descriptive headings of the several Sections and paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant. THE
CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officer to be dated as of the date
hereof.
BROADBANDNOW, INC.
By:
--------------------------------------
Name:
Title:
Attest:
----------------------------------
Name:
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EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W-___), hereby agrees to subscribe for the
purchase of _____ Warrant Shares covered by such Warrant and makes payment
herewith in full therefor at the price per share provided by such Warrant.
Signature
--------------------------------
Address
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Exhibit I, Page 1
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EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, ___________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. W-____) with respect to the number of the Warrant
Shares covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
----------------- ------- -------------
Dated: Signature
--------------------------------
--------------------------------
Witness
--------------------------------
Exhibit II, Page 1
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EXHIBIT 10.44B
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL REGISTERED UNDER SAID ACT OR SUCH LAWS OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION DOES
NOT VIOLATE THE PROVISIONS THEREOF.
THIS WARRANT ALSO IS SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND
OBLIGATIONS, TO WHICH ANY TRANSFEREE AGREES BY HIS ACCEPTANCE HEREOF,
AS SET FORTH IN (1) THE SUBSCRIPTION AGREEMENT BETWEEN THE ISSUER AND
INITIAL PURCHASER, AND (2) THE CERTIFICATE OF INCORPORATION OF THE
COMPANY, A COPY OF WHICH AGREEMENT AND CERTIFICATE MAY BE OBTAINED FROM
THE COMPANY. NO TRANSFER OF SUCH WARRANT WILL BE MADE ON THE BOOKS OF
THE COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS
OF SUCH AGREEMENT AND BY AN AGREEMENT OF THE TRANSFEREE TO BE BOUND BY
THE RESTRICTIONS SET FORTH IN SAID SUBSCRIPTION AGREEMENT AND
CERTIFICATE OF INCORPORATION.
STOCK PURCHASE WARRANT
Date of Issuance: February 3, 2000 Certificate No. W-3
For value received, BroadbandNOW, Inc., a Delaware corporation (the
"Company"), hereby grants to DOTCOM Limited Partnership ("DOTCOM"), or its
transferees and assigns, the right to purchase from the Company a total of
50,000 Warrant Shares (as defined herein) at a price per share of $18.80 (the
"Initial Exercise Price"). This Warrant is the warrant (the "Warrant") issued
pursuant to the terms of the Subscription Agreement dated as of February 3, 2000
between the Company and DOTCOM. The Initial Exercise Price and the number of
Warrant Shares (and the amount and kind of other securities) for which this
Warrant is exercisable shall be subject to adjustment as provided herein.
Certain capitalized terms used herein are defined in Section 3 hereof.
This Warrant is subject to the following provisions:
SECTION 1. Exercise of Warrant.
1. A Exercise Period. This Warrant shall not be exercisable prior to
the earlier to occur of (i) a Change of Control (as such term is defined in
Section 3) or (ii) the one year anniversary of the date of issuance of this
Warrant. Unless a Change of Control shall have occurred, upon the one year
anniversary of the date of issuance of this Warrant, the President of the
Company, in his sole discretion, shall determine whether or not this Warrant
shall become exercisable. If the President of the
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Company determines that this Warrant shall become exercisable or in the event
that a Change of Control shall have occurred, then this Warrant's purchase
rights shall be exercisable until 5:00 p.m., Dallas, Texas time, on the fifth
anniversary of date of issuance of this Warrant or, if such day is not a
Business Day, on the next preceding Business Day. If the President of the
Company determines that this Warrant shall not become exercisable and a Change
of Control shall not have occurred prior to such one year anniversary, then this
Warrant's purchase rights shall expire immediately upon such determination.
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised when
all of the following items have been delivered to the Company (the "Exercise
Time"):
(a) a completed Exercise Agreement, as described in
Section 1C below, executed by the Person exercising all or part of the purchase
rights represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if the Purchaser is not the Registered Holder, an
Assignment or Assignments in the form set forth in Exhibit II attached hereto
evidencing the assignment of this Warrant to the Purchaser; and
(d) either (i) a check or wire transfer payable to
the Company in an amount equal to the product of the Exercise Price (as such
term is defined in Section 2) multiplied by the number of Warrant Shares being
purchased upon such exercise (the "Aggregate Exercise Price"), (ii) the
surrender to the Company of securities of the Company or its subsidiaries having
a value equal to the Aggregate Exercise Price of the Warrant Shares being
purchased upon such exercise (which value in the case of debt securities shall
be the principal amount thereof and in the case of shares of Common Stock shall
be the Fair Market Value thereof), or (iii) the delivery of a notice to the
Company that the Purchaser is exercising the Warrant by authorizing the Company
to reduce the number of Warrant Shares subject to the Warrant by the number of
shares having an aggregate Fair Market Value equal to the Aggregate Exercise
Price.
(ii) Certificates for Warrant Shares purchased upon exercise
of this Warrant shall be delivered by the Company to the Purchaser within ten
days after the date of the Exercise Time together with any cash payable in lieu
of a fraction of a share pursuant to the provisions of Section 11 hereof. Unless
this Warrant has expired or all of the purchase rights represented hereby have
been exercised, the Company shall prepare a new Warrant, substantially identical
hereto, representing the rights formerly represented by this Warrant which have
not expired or been exercised and shall, within such ten-day period, deliver
such new Warrant to the Person designated for delivery in the Exercise
Agreement.
(iii) The Warrant Shares issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the Exercise
Time, and the Purchaser shall be deemed for all purposes to have become the
Registered Holder of such Warrant Shares at the Exercise Time.
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(iv) The issuance of certificates for Warrant Shares upon
exercise of this Warrant shall be made without charge to the Registered Holder
or the Purchaser for any issuance tax in respect thereof or other cost incurred
by the Company in connection with such exercise and the related issuance of
Warrant Shares; provided, that the Company shall not be required to pay any
taxes in respect of the Warrant or Warrant Shares, with respect to any transfer
of the Warrant, which taxes shall be paid by the transferee prior to the
issuance of such Warrant Shares.
(v) The Company shall not close its books against the transfer
of this Warrant or of any Warrant Shares issued or issuable upon the exercise of
this Warrant in any manner which interferes with the timely exercise of this
Warrant.
(vi) The Company shall assist and cooperate with the
Registered Holder or any Purchaser required to make any governmental filings or
obtain any governmental approvals prior to or in connection with any exercise of
this Warrant. The Company may in good faith suspend exercise of the Warrant
during the period reasonably necessary to obtain such approvals.
(vii) Notwithstanding any other provision hereof, if an
exercise of any portion of this Warrant is to be made in connection with a
public offering or a sale of the Company (pursuant to a merger, sale of stock,
or otherwise), such exercise may at the election of the Registered Holder be
conditioned upon the consummation of such transaction, in which case such
exercise shall not be deemed to be effective until immediately prior to the
consummation of such transaction.
(viii) The Company shall at all times reserve and keep
available out of its authorized but unissued Class A Common Stock solely for the
purpose of issuance upon the exercise of this Warrant, the maximum number of
Warrant Shares issuable upon the exercise of this Warrant. All Warrant Shares
which are so issuable shall, when issued and upon the payment of the applicable
Exercise Price, be duly and validly issued, fully paid and nonassessable and
free from all taxes, liens and charges except those created by actions of the
Registered Holder hereof. The Company shall take all such actions as may be
necessary to ensure that all such Warrant Shares may be so issued without
violation by the Company of any applicable law or governmental regulation or any
requirements of any domestic securities exchange upon which shares of Common
Stock or other securities constituting Warrant Shares may be listed (except for
official notice of issuance which shall be immediately delivered by the Company
upon each such issuance). The Company will use its best efforts to cause the
Warrant Shares, immediately upon such exercise, to be listed on any domestic
securities exchange upon which shares of Class A Common Stock or other
securities constituting Warrant Shares are listed, if any, at the time of such
exercise.
(ix) The Company shall not, and shall not permit its
subsidiaries to, directly or indirectly, by any action (including, without
limitation, reincorporation in a jurisdiction other than Delaware, amending its
Certificate of Incorporation or through any Organic Change (as defined in
Section 2D), issuance or sale of securities or any other voluntary action) avoid
or seek to avoid the observance or performance of any of terms of this Warrant
or impair or diminish its value (except for any action which ratably affects all
Warrant Shares and
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shares of Common Stock), but shall at all times in good faith assist in the
carrying out of all such terms of this Warrant. Without limiting the generality
of the foregoing, the Company shall (a) use its reasonable best efforts to
obtain all such authorizations, exemptions, or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Warrant, and (b) not undertake any
reverse stock split, combination, reorganization, or other reclassification of
its capital stock which would have the effect of making this Warrant exercisable
for less than one share of Class A Common Stock.
1C. Exercise Agreement. Upon any exercise of this Warrant, the
Purchaser shall deliver to the Company an Exercise Agreement in substantially
the form set forth as Exhibit I hereto, except that if the Warrant Shares are
not to be issued in the name of the Registered Holder, the Exercise Agreement
shall also state the name of the Person to whom the certificates for the Warrant
Shares are to be issued, and if the number of Warrant Shares to be issued does
not include all of the Warrant Shares purchasable hereunder, it shall also state
the name of the Person to whom a new Warrant for the unexercised portion of the
rights hereunder is to be issued, subject to the transfer restrictions set forth
in Section 5.
SECTION 2. Adjustment of Exercise Price and Number of Shares. In order
to prevent dilution of the rights granted under this Warrant, the Initial
Exercise Price shall be subject to adjustment from time to time as provided in
this Section 2 (as so adjusted, the "Exercise Price"), and the number of Warrant
Shares obtainable upon exercise of this Warrant shall be subject to adjustment
from time to time, each as provided in this Section 2; provided, however, that
there shall be no adjustment to the Exercise Price or to the number of Warrant
Shares acquirable upon exercise of the Warrant, as provided in this Section 2
(an "Adjustment"), unless and until such Adjustment together with any previous
Adjustments to the Exercise Price or to the number of Warrant Shares so
acquirable which would otherwise have resulted in an Adjustment were it not for
this proviso, would require an increase or decrease of at least 1% of the total
number of Warrant Shares so acquirable at the time of such Adjustment, in which
event such Adjustment and all such previous Adjustments shall immediately occur.
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2A. Adjustment for Certain Dividends and Distributions in
Consideration other than Securities of the Company. In the event that the
Company at any time or from time to time after the date hereof declares or makes
a dividend or other distribution with respect to the Class A Common Stock
payable in consideration other than additional shares of Class A Common Stock or
other securities of the Company, then in each such event the Exercise Price
shall be reduced to equal the amount determined by multiplying the Exercise
Price in effect immediately prior to such dividend or distribution by a
fraction, the numerator of which will be the Fair Market Value of the Class A
Common Stock immediately after such dividend or distribution and the denominator
of which will be the Fair Market Value of the Class A Common Stock immediately
before such dividend or distribution. Furthermore, upon each such adjustment to
the Exercise Price pursuant to this Section 2A, the number of Warrant Shares
acquirable upon the exercise of this Warrant shall be adjusted to equal the
number of shares determined by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant Shares acquirable
upon exercise of this Warrant immediately prior to such adjustment and dividing
the product thereof by the Exercise Price resulting from such adjustment.
2B. Adjustment for Dividends and Distributions in Securities other
than Class A Common Stock. In the event the Company at any time or from time to
time after the date hereof declares or makes a dividend or other distribution
with respect to the Class A Common Stock payable in securities of the Company
other than additional shares of Class A Common Stock, then in each such event
provision shall be made so that the Registered Holders of Warrants shall receive
upon exercise thereof, in addition to the number of shares of Class A Common
Stock receivable thereupon, the amount of securities of the Company that they
would have received had their Warrants been exercised prior to the effective
date of the issuance of such other securities.
2C. Subdivision or Combination of Common Stock. If the Company at any
time subdivides (by any stock split, stock dividend, recapitalization, or
otherwise) the Class A Common Stock into a greater number of shares or pays a
dividend or makes a distribution to holders of the Class A Common Stock in the
form of shares of Class A Common Stock, the Exercise Price in effect immediately
prior to such subdivision shall be proportionately reduced and the number of
Warrant Shares obtainable upon exercise of this Warrant shall be proportionately
increased. Subject to clause (b) of Section 1B(ix), if the Company at any time
combines (by reverse stock split or otherwise) the Common Stock into a smaller
number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
obtainable upon exercise of this Warrant shall be proportionately decreased.
2D. Organic Change. Any reincorporation, recapitalization,
reorganization, reclassification, consolidation, merger, sale of all or
substantially all of the Company's assets or other transaction which is effected
in such a way that holders of the Class A 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 ensure that each Registered Holder of
Warrants shall thereafter have the right to acquire and receive upon exercise
thereof, in lieu of or in addition to (as the case may be) the Warrant Shares
immediately theretofore acquirable and receivable upon exercise of such
Registered Holder's
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Warrants, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for the number of Warrant Shares immediately
theretofore acquirable and receivable upon exercise of such Registered Holder's
Warrants had such Organic Change not taken place. In any such case, the Company
shall make appropriate provision with respect to such Registered Holder's rights
and interests to ensure that the provisions hereof (including this Section 2)
shall thereafter be applicable to the Warrants. The Company shall not effect any
such Organic Change unless, prior to the consummation thereof, the successor
entity (if other than the Company) resulting from such Organic Change (including
a purchaser of all or substantially all the Company's assets) assumes by written
instrument the obligation to deliver to each Registered Holder of Warrants such
shares of stock, securities or assets as, in accordance with the foregoing
provisions, such Registered Holder may be entitled to acquire upon exercise of
Warrants.
2E. Certain Events. If any event occurs of the type contemplated by
the provisions of this Section 2 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 but excluding
any Permitted Issuance), then the Company's Board of Directors shall make an
appropriate and equitable adjustment in the Exercise Price and the number of
Warrant Shares obtainable upon exercise of this Warrant so as to protect the
rights of the Registered Holder of this Warrant.
2F. Notices.
(i) Immediately upon any adjustment of the Exercise Price, the
Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
(ii) The Company shall give written notice to the Registered
Holder at least thirty (30) days prior to the date on which the Company closes
its books or takes a record (A) with respect to any dividend or distribution
upon the Class A Common Stock, (B) with respect to any pro rata subscription
offer to holders of Class A Common Stock, or (C) for determining rights to vote
with respect to any Organic Change, dissolution or liquidation.
(iii) The Company shall also give written notice to the
Registered Holder at least thirty (30) days prior to the date on which any
Organic Change, dissolution, or liquidation shall take place.
2G. Class B Common Stock and Class C Common Stock. The Company shall
not issue, or grant the right to purchase, from and after the date of the
issuance of this Warrant, (i) any shares of Class B Common Stock or Class C
Common Stock, (ii) any securities convertible into shares of Class B Common
Stock or Class C Common Stock or (iii) any other form of common equity with a
liquidation preference senior to the Class A Common Stock, except such issuances
or grants made prior to the date hereof.
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SECTION 3. Definitions. The following terms have the meanings set forth
below:
"Business Day" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of Texas or is a day on
which banking institutions located in such state are authorized or required by
law or other governmental action to close.
"Change of Control" means (i) the consolidation or merger of the
Company with or into any other corporation or any other reorganization of the
Company, unless the stockholders of the Company immediately prior to any such
transaction are holders of a majority of the voting securities of the surviving
or acquiring corporation immediately thereafter (and, for purposes of this
calculation, equity securities which any stockholder or the Company owned
immediately prior to such merger or consolidation as a stockholder of another
party to the transaction shall be disregarded); or (ii) the sale or other
transfer in a single transaction or a series of related transactions of all or
substantially all of the assets of the Company.
"Class A Common Stock" means the Company's Class A Common Stock, $0.001
par value. For purposes of Section 2 of this Warrant, the definition of "Class A
Common Stock" shall include any other common stock of the Company with the
exception of the Class B Common Stock and Class C Common Stock.
"Class B Common Stock" means the Company's Class B Common Stock, $0.001
par value.
"Class C Common Stock" means the Company's Class C Common Stock, $0.001
par value.
"Common Stock" means, collectively, the Class A Common Stock, the Class
B Common Stock and the Class C Common Stock, and any other class of stock
representing common equity of the Company.
"Fair Market Value" means (i) the average of the closing sales prices
of the Class A Common Stock on all domestic securities exchanges on which the
Class A Common Stock is listed, or (ii) if there have been no sales 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 (iii) if on any day the Class A
Common Stock is not so listed, the sales price for the Class A Common Stock as
of 4:00 P.M., Dallas, Texas time, as reported on the Nasdaq National Market, or
(iv) if the Class A Common Stock is not reported on the Nasdaq National Market,
the average of the representative bid and asked quotations for the Class A
Common Stock as of 4:00 P.M., Dallas, Texas time, as reported on the Nasdaq
interdealer quotation system, or any similar successor organization, in each
such case averaged over a period of twenty-one (21) trading days consisting of
the day as of which "Fair Market Value" is being determined and the 20
consecutive trading days prior to such day. Notwithstanding the foregoing, if at
any time of determination either (x) the Class A Common Stock is not registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, and
not listed on a national securities exchange or authorized for quotation in the
Nasdaq system, or (y) less than 25% of the outstanding Class A Common Stock is
held by the public free of transfer restrictions under the Securities Act of
1933, as amended, then Fair Market Value shall mean the price that would be paid
per share for the entire common equity interest in the Company in an orderly
sale transaction between a willing buyer and a willing seller, taking into
account the appropriate lack of liquidity of the Company's securities, using
valuation techniques then prevailing in the securities industry and assuming
full disclosure of all relevant information and a reasonable period of time for
effectuating such sale. Fair
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Market Value shall be determined by the Company's Board of Directors in its good
faith judgment. Notwithstanding the foregoing, a majority of the Required
Holders shall have the right to require that an independent investment banking
firm mutually acceptable to the Company and the Required Holders determine Fair
Market Value, which firm shall submit to the Company and the Warrant holders a
written report setting forth such determination. The expenses of such firm will
be borne by the Company, and the determination of such firm will be final and
binding upon all parties.
"Permitted Issuance" means any issuance by the Company of shares of
Class A Common Stock or options to purchase Class A Common Stock (a) on or prior
to the date hereof; (b) upon exercise of this Warrant; (c) upon the conversion
of any Preferred Stock, Class B Common Stock or Class C Common Stock issued on
or prior to the date hereof; (d) pursuant to an underwritten offering of Common
Stock registered under the Securities Act of 1933, as amended; and (e) to
employees of the Company pursuant to employee stock purchase or stock option
plans adopted or to be adopted by the Company for key employees and prior stock
option grants; provided, that, the aggregate number of shares (and underlying
shares of options) of Class A Common Stock issued pursuant to this clause (e)
shall not exceed 6,000,000 (as adjusted to provide for any dividends, stock
distributions, splits, combinations or recapitalizations).
"Person" means any individual, partnership, limited liability company,
joint venture, corporation, trust, unincorporated organization or government or
department or agency thereof.
"Preferred Stock" means the Company's Series A Convertible Preferred
Stock.
"Registered Holder" means the holder of this Warrant as reflected in
the records of the Company maintained pursuant to the provisions of Section 10.
"Required Holders" means the holders of a majority of the purchase
rights represented by this Warrant as originally issued which remain outstanding
and unexercised.
"Warrant Shares" means shares of the Company's Class A Common Stock
issuable upon exercise of the Warrant; provided, that if the securities issuable
upon exercise of the Warrant are issued by an entity other than the Company or
there is a change in the class of securities so issuable, then the term "Warrant
Shares" shall mean shares of the security issuable upon exercise of the Warrant
if such security is issuable in shares, or shall mean the equivalent units in
which such security is issuable if such security is not issuable in shares.
SECTION 4. No Voting Rights, Limitations of Liability. This Warrant
shall not entitle the Registered Holder hereof to any voting rights or other
rights as a stockholder of the Company. No provision hereof, in the absence of
affirmative action by the Registered Holder to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of the Registered Holder shall
give rise to any liability of such Registered Holder for the Exercise Price of
Warrant Shares acquirable by exercise hereof or as a stockholder of the Company.
SECTION 5. Transferability. This Warrant and all rights hereunder are
transferable in whole without charge to the Registered Holder, upon surrender of
this Warrant with a properly executed Assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
SECTION 6. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Registered Holder at
the principal office of the
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Company, for new Warrants of like tenor representing in the aggregate the
purchase rights hereunder, and each of such new Warrants shall represent such
portion of such rights as is designated by the Registered Holder at the time of
such surrender. At the request of the Registered Holder (pursuant to a transfer
of Warrants or otherwise), this Warrant may be exchanged for one or more
Warrants to purchase Common Stock. The date the Company initially issues this
Warrant shall be deemed to be the date of issuance hereof regardless of the
number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant shall be issued. All Warrants
representing portions of the rights hereunder are referred to herein as the
"Warrants."
SECTION 7. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction, or mutilation
of any certificate evidencing this Warrant, and in the case of any such loss,
theft, or destruction, upon receipt of indemnity reasonably satisfactory to the
Company (provided, that if the Registered Holder is a financial institution or
other institutional investor its own Agreement shall be satisfactory), or, in
the case of any such mutilation upon surrender of such certificate, the Company
shall (at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the same rights represented by such lost,
stolen, destroyed, or mutilated certificate and dated the date of such lost,
stolen, destroyed, or mutilated certificate.
SECTION 8. Notices. Except as otherwise expressly provided herein, all
notices and deliveries referred to in this Warrant shall be in writing, shall be
delivered personally, sent by registered or certified mail, return receipt
requested and postage prepaid or sent via nationally recognized overnight
courier or via facsimile, and shall be deemed to have been given when so
delivered (or when received, if delivered by any other method) if sent (i) to
the Company, at its principal executive offices, and (ii) to a Registered
Holder, at such Registered Holder's address as it appears in the records of the
Company (unless otherwise indicated by any such Registered Holder).
SECTION 9. Amendment and Waiver. Except as otherwise provided herein,
the provisions of the Warrant may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the prior written consent of the Required
Holders.
SECTION 10. Warrant Register. The Company shall maintain at its
principal executive offices books for the registration and the registration of
transfer of the Warrant. The Company may deem and treat the Registered Holder as
the absolute owner hereof (notwithstanding any notation of ownership or other
writing thereon made by anyone) for all purposes and shall not be affected by
any notice to the contrary.
SECTION 11. Fractions of Shares. The Company may, but shall not be
required to, issue a fraction of a Warrant Share upon the exercise of this
Warrant in whole or in part. As to any fraction of a share which the Company
elects not to issue, the Company shall make a cash payment in respect of such
fraction in an amount equal to the same fraction of the Fair Market Value of a
Warrant Share on the date of such exercise.
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SECTION 12. Descriptive Headings, Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officer to be dated as of the date hereof.
BROADBANDNOW, INC.
By:
----------------------------------
Name:
Title:
Attest:
---------------------------------
Name:
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EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. W-___), hereby agrees to subscribe for the purchase of
_____ Warrant Shares covered by such Warrant and makes payment herewith in full
therefor at the price per share provided by such Warrant.
Signature
---------------------------
Address
----------------------------
Exhibit I, Page 1
26
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, ___________________________ hereby sells, assigns
and transfers all of the rights of the undersigned under the attached Warrant
(Certificate No. W-____) with respect to the number of the Warrant Shares
covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
----------------- ------- -------------
Dated: Signature
---------------------------
---------------------------
Witness
---------------------------
Exhibit II, Page 1
