THIS WARRANT AND THE SECURITIES TO BE ISSUED UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT") OR APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), AND SHALL
NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR
NOT FOR CONSIDERATION) BY THE HOLDER EXCEPT BY REGISTRATION OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE
OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLE SATISFACTORY TO THE COMPANY TO
THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND
THE STATE ACTS. IN ADDITION, THE WARRANT AND THE SECURITIES TO BE ISSUED UPON
EXERCISE OF THIS WARRANT MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES (AS
DEFINED IN REGULATION S UNDER THE 1933 ACT) OR TO OR FOR THE ACCOUNT OR BENEFIT
OF U.S. PERSONS (AS DEFINED IN REGULATION S) EXCEPT PURSUANT TO REGULATION S AND
PURSUANT TO REGISTRATION UNDER THE 1933 ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT.
THE WARRANT AND THE SECURITIES TO BE ISSUED UPON EXERCISE OF THIS WARRANT ARE
BEING OFFERED PURSUANT TO THE EXEMPTION FROM REGISTRATION WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") CONTAINED IN REGULATION S
FOR OFFERS AND SALES OF SECURITIES THAT OCCUR OUTSIDE THE UNITED STATES TO
NON-U.S. PERSONS (WITHIN THE MEANING OF REGULATION S). NO REGISTRATION STATEMENT
OR APPLICATION TO REGISTER THESE SECURITIES HAS BEEN OR WILL BE FILED WITH THE
COMMISSION OR UNDER THE SECURITIES LAWS OF ANY COUNTRY OR JURISDICTION. THIS
WARRANT AND THE SECURITIES TO BE ISSUED UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN APPROVED OR DISAPPROVED BY THE COMMISSION. BECAUSE THE WARRANT HAS BEEN
ISSUED PURSUANT TO REGULATION S, THE WARRANT MAY NOT BE EXERCISED BY OR ON
BEHALF OF ANY U.S. PERSON (AS DEFINED IN REGULATION S) UNLESS REGISTERED UNDER
THE 1933 ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE, AND THE WARRANT MAY
NOT BE EXERCISED WITHIN THE UNITED STATES AND SECURITIES MAY NOT BE DELIVERED
WITHIN THE UNITED STATES UPON EXERCISE, OTHER THAN IN OFFERINGS DEEMED TO MEET
THE DEFINITION OF AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S, UNLESS
REGISTERED UNDER THE 1933 ACT OR AN EXEMPTION FROM REGISTRATION IS APPLICABLE
No.________ ______Warrants
PREFERRED VOICE, INC.
WARRANT CERTIFICATE
This warrant certificate ("Warrant Certificate") certifies that for value
received _____________ (the "Initial Warrant Holder") or registered assigns is
the owner of the number of warrants specified above, each of which entitles the
holder thereof to purchase, at any time on or before the Expiration Date
hereinafter provided, one fully paid and non-assessable share of Common Stock,
$0.00l par value per share, of Preferred Voice, Inc., a Delaware corporation
(the "Company"), at a purchase price of $1.00 per share of Common Stock payable
in lawful money of the United States of America, in cash, by official bank or
certified check, or by wire transfer ("Warrants").
1. Warrant; Purchase Price
Each Warrant shall entitle the holder thereof to purchase one share of
Common Stock, $0.001 par value per share, of the Company ("Common Stock") during
the period commencing on the date hereof and ending on the Expiration Date. The
purchase price payable upon exercise of a Warrant shall be $1.00 (the "Purchase
Price"). The Purchase Price and number of Warrants evidenced by this Warrant
Certificate are subject to adjustment as provided in Article 7. Common Stock
purchased or subject to purchase pursuant to the Warrants shall be called
"Warrant Shares" herein.
2. Exercise; Expiration Date
2.1 Subject to Section 4 hereto, each Warrant is exercisable, at the option
of the holder, at any time after issuance and on or before the Expiration Date.
In the case of exercise of less than all the Warrants represented by a Warrant
Certificate, the Company shall cancel the Warrant Certificate upon the surrender
thereof and shall execute and deliver a new Warrant Certificate for the balance
of such Warrants.
2.2 The term "Expiration Date" shall mean 5:00 p.m. Dallas time on June 25,
2000, or if such date shall in the State of Texas be a holiday or a day on which
banks are authorized to close, then 5:00 p.m. Dallas time the next following day
which in the State of Texas is not a holiday or a day on which banks are
authorized to close.
3. Registration and Transfer on Company Books
3.1 The Company shall maintain books for the registration and transfer of
Warrant Certificates.
3.2 Prior to due presentment for registration of transfer of this Warrant
Certificate, the Company may deem and treat the registered holder as the
absolute owner thereof.
3.3 The Company shall register upon its books any transfer of a Warrant
Certificate upon surrender of same to the Company accompanied (if so required by
the Company) by a written instrument of transfer duly executed by the registered
holder or by a duly authorized attorney and subject to the restrictions on
transfer set forth in the Offshore Securities Subscription Agreement pursuant to
which the original holder of this Warrant acquired the Warrant. Upon any such
registration of transfer, new Warrant Certificate(s) shall be issued to the
transferee(s) and the surrendered Warrant Certificate shall be canceled by the
Company. A Warrant Certificate may also be exchanged, at the option of the
holder, for new Warrant Certificates representing in the aggregate the number of
Warrants evidenced by the Warrant Certificate surrendered.
4. Securities Exercise Provisions
4.1 The Warrant Shares will not be registered under the Securities Act or
any state securities law and shall not be transferable unless registered or an
exemption from registration is available. A legend to the foregoing effect will
be placed on any certificate representing such shares.
4.2 The Warrant will not be permitted to be exercised on behalf of a U.S.
person (as defined in Regulation S) unless a written opinion of counsel to the
effect that the Warrant and the shares (the "Warrant Shares") of common stock of
the Company to be issued upon exercise of the Warrant have been registered under
the Securities Act or are exempt from registration thereunder has been provided
to the Company. The Warrant will not be permitted to be exercised within the
United States upon exercise thereof (other than in an offering deemed to meet
the definition of "offshore transaction" pursuant to Regulation S) unless a
written opinion of counsel to the effect that the Warrant and the Warrant Shares
have been registered under the Securities Act or are exempt from the
registration requirements of the Securities Act under an exemption thereunder
has been provided to the Company.
5. Reservation of Warrant Shares
The Company covenants that it will at all times reserve and keep available
out of its authorized Common Stock, solely for the purpose of issue upon
exercise of the Warrants, such number of shares of Common Stock as shall then be
issuable upon the exercise of all outstanding Warrants. The Company covenants
that all shares of Common Stock which shall be issuable upon exercise of the
Warrants shall be duly and validly issued and fully paid and non-assessable and
free from all taxes, liens and charges with respect to the issue thereof.
6. Loss or Mutilation
Upon receipt by the Company of reasonable evidence of the ownership of and
the loss, theft, destruction or mutilation of any Warrant Certificate and, in
the case of loss, theft or destruction, of indemnity reasonably satisfactory to
the Company, or, in the case of mutilation, upon surrender and cancellation of
the mutilated Warrant Certificate, the Company shall execute and deliver in lieu
thereof a new Warrant Certificate representing an equal number of Warrants. 7.
Adjustment of Purchase Price and Number of Warrant Shares Deliverable
7.1 The Purchase Price and the number of shares of Common Stock purchasable
pursuant to this Warrant shall be subject to adjustment from time to time as
hereinafter set forth in this Article 7. Whenever reference is made in this
Article 7 to the issue or sale of shares of Common Stock, or simply shares, such
term shall mean any stock of any class of the Company other than preferred stock
with a fixed limit on dividends and a fixed amount payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company.
The shares issuable upon exercise of the Warrants shall however be shares of
Common Stock of the Company, par value $0.00l per share, as constituted at the
date hereof, except as otherwise provided in Sections 7.3 and 7.4.
7.2 In case the Company shall at any time change as a whole, by subdivision
or combination in any manner or by the making of a stock dividend, the number of
outstanding shares into a different number of shares, with or without par value,
(i) the number of shares which immediately prior to such change the holder of
each Warrant shall have been entitled to purchase pursuant to this Warrant shall
be increased or decreased in direct proportion to the increase or decrease,
respectively, in the number of shares outstanding immediately prior to such
change, and (ii) the Purchase Price in effect immediately prior to such change
shall be increased or decreased in inverse proportion to such increase or
decrease in the number of such shares outstanding immediately prior to such
change. For the purpose of this Section 7.2, the number of shares outstanding at
any given time shall not include shares in the treasury of the Company.
7.3 In case of any capital reorganization or any reclassification of the
capital stock of the Company or in case of the consolidation or merger of the
Company with another corporation, or in case of any sale, transfer or other
disposition to another corporation of all or substantially all the property,
assets, business and good will of the Company, the holder of each Warrant shall
thereafter be entitled to purchase (and it shall be a condition to the
consummation of any such reorganization, reclassification, consolidation,
merger, sale, transfer or other disposition that appropriate provision shall be
made so that such holder shall thereafter be entitled to purchase) the kind and
amount of shares of stock and other securities and property receivable in such
transaction which a shareholder receives who holds the number of shares which
the Warrant entitled the holder to purchase immediately prior to such capital
reorganization, reclassification of capital stock, consolidation, merger, sale,
transfer or other disposition; and in any such case appropriate adjustments
shall be made in the application of the provisions of this Article 7 with
respect to rights and interests thereafter of the holder of the Warrants to the
end that the provisions of this Article 7 shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares or other property
thereafter purchasable upon the exercise of the Warrants.
7.4 In the event the Company shall declare a dividend upon the Common Stock
payable otherwise than out of earnings or earned surplus or otherwise than in
shares of Common Stock or in stock or obligations directly or indirectly
convertible into or exchangeable for such shares, the holder of each Warrant
shall, upon exercise of the Warrant, be entitled to purchase, in addition to the
number of shares deliverable upon such exercise, against payment of the Warrant
Price therefor but without further consideration, the cash, stock or other
securities or property which the holder of the Warrant would have received as
dividends (otherwise than out of such earnings or earned surplus and otherwise
than in shares or in obligations convertible into or exchangeable for Common
Stock) if continuously since the date hereof such holder (i) had been the holder
of record of the number of shares deliverable upon such exercise and (ii) had
retained all dividends in stock or other securities (other than shares or such
convertible or exchangeable stock or obligations) paid or payable in respect of
said number of shares or in respect of any such stock or other securities so
paid or payable as such dividends.
7.5 No certificate for fractional shares shall be issued upon the exercise
of the Warrants, but in lieu thereof the Company shall purchase any such
fractional interest calculated to the nearest cent.
7.6 Whenever the Purchase Price is adjusted as herein provided, the Company
shall forthwith deliver to each Warrant holder a statement signed by the
President of the Company and by its Treasurer or Secretary stating the adjusted
Purchase Price and number of shares determined as herein specified. Such
statement shall show in detail the facts requiring such adjustment, including a
statement of the consideration received by the Company for any additional stock
issued.
7.7 In the event at any time:
(i) The Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution (other than cash dividends)
to the holders of its Common Stock; or
(ii) The Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any
class or any other rights; or
(iii) The Company shall effect any capital reorganization or any
reclassification of or change in the outstanding capital stock of
the Company (other than a change in par value, or a change from
par value to no par value, or a change from no par value to par
value, or a change resulting solely from a subdivision or
combination of outstanding shares), or any consolidation or
merger, or any sale, transfer or other disposition of all or
substantially all its property, assets, business and good will as
an entirety, or the liquidation, dissolution or winding up of the
Company; or
(iv) The Company shall declare a dividend upon its Common Stock
payable otherwise than out of earnings or earned surplus or
otherwise than in Common Stock or any stock or obligations
directly or indirectly convertible into or exchangeable for
Common Stock;
then, in any such case, the Company shall cause at least thirty days' prior
notice to be mailed to the registered holder of each Warrant at the address of
such holder shown on the books of the Company. Such notice shall also specify
the date on which the books of the Company shall close, or a record be taken,
for such stock dividend, distribution or subscription rights, or the date on
which such reclassification, reorganization, consolidation, merger, sale,
transfer, disposition, liquidation, dissolution, winding up or dividend, as the
case may be, shall take place, and the date of participation therein by the
holders of shares if any such date is to be fixed, and shall also set forth such
facts with respect thereto as shall be reasonably necessary to indicate the
effect of such action on the rights of the holders of the Warrants.
8. Governing Law
8.1 This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed by its officers thereunto duly authorized and its corporate seal
to be affixed hereon as of the 25th day of June, 1997.
PREFERRED VOICE, INC.
BY:
--------------------------
Chairman of the Board
Attest:
------------------
Secretary
