EXHIBIT A
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS EXERCISE
(COLLECTIVELY, "THE SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 ("THE ACT") OR UNDER ANY APPLICABLE STATE LAWS ("STATE LAWS").
ACCORDINGLY, THE SECURITIES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS REGISTERED UNDER THE ACT AND APPLICABLE STATE LAWS OR THE ISSUER
RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of May 13, 1997 between EDUCATIONAL VIDEO
CONFERENCING, INC., a New York corporation (the "Company"), and ADELPHI
UNIVERSITY ("Adelphi").
The Company proposes to issue to Adelphi warrants as hereinafter
described (the "Adelphi Warrants") to purchase up to an aggregate of 75,000
shares, subject to adjustments as hereinafter provided (the "Warrant Shares")
of the Company's Common Stock, par value $.0001 per share, (the "Common
Stock").
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and for other good and valuable consideration, the
parties hereto agree as follows:
1. Issues of Warrants; Form of Warrant. The Company will issue,
transfer and deliver the Adelphi Warrants to Adelphi. The text of the Adelphi
Warrants and the form of election to purchase shares to be attached thereto
shall be substantially as set forth in Attachment 1 annexed hereto. The
Adelphi Warrants shall be executed on behalf of the Company by the manual or
facsimile signature of the properly authorized officers, with its seal duly
affixed.
2. Registration. The Adelphi Warrants shall be numbered and shall be
registered. The Company shall be entitled to treat the registered holder of
any Adelphi Warrant or Warrant Shares as the owner in fact thereof for all
purposes (each, a "Holder"). The Adelphi Warrants shall be registered in the
name of Adelphi University.
3. Terms of Warrants; Exercise of Warrants. Each Adelphi Warrant
entitles the registered owner thereof to purchase one share of Common Stock
(as adjusted), at a purchase price per share of $2.72 (the "Exercise Price")
at any time from the first anniversary of the effective date of the
Registration Statement relating to such initial public offering until 5:00
p.m. New York City time, on the date six years from the effective date of such
Registration Statement, (the "Expiration Date"). The Exercise Price and the
shares of Common Stock issuable upon exercise of Adelphi Warrants are subject
to adjustment upon the occurrence of certain events, pursuant to the
provisions of Section 6 of this Agreement. Subject to the provisions of this
Agreement, each Holder shall have the right, which may be exercised as set
forth in such Adelphi Warrants, to purchase from the Company (and the Company
shall issue and sell to such Holder) the number of fully paid and
nonassessable shares of Common Stock specified in
agent, of such Adelphi Warrants, with the form of election to agent, of such
Adelphi Warrants, with the form of election to purchase attached thereto duly
completed and signed, and upon payment to the Company of the Exercise Price,
as adjusted in accordance with the provisions of Section 6 of this Agreement,
for the number of Warrant Shares in respect of which such Adelphi Warrants are
then exercised. Payment of such Exercise Price may be made in cash or by check
payable to the order of the company. No adjustment shall be made for any
dividends on any shares of stock issuable upon exercise of an Adelphi Warrant.
Upon each surrender of Adelphi Warrants and payment of the Exercise Price as
aforesaid, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the Holder of such Adelphi
Warrants and (subject to receipt of evidence of compliance with the provisions
of Section 9 of this Agreement) in such name or names as such Holder may
designate, a certificate or certificates for the number of full Warrant Shares
so purchased upon the exercise of such Adelphi Warrants, together with cash,
as provided in Section 7 of this Agreement, in respect of any fractional
Warrant Shares otherwise issuable upon surrender. Such certificate or
certificates shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become the holder of record of
such Warrant Shares as of the date of the surrender of such Adelphi Warrants
and payment of the exercise Price as aforesaid. The rights of purchase
represented by Adelphi Warrants shall be exercisable, at the election of the
Holders thereof, either in full or from time to time in part and, if and
Adelphi Warrant is exercised in respect of less than all of the Warrant Shares
purchasable on such exercise, a new Adelphi Warrant or Adelphi Warrants shall
be issued for the remaining number of Warrant Shares specified in the Adelphi
Warrant so surrendered.
4. Payment of Taxes. The Company will pay all documentary stamp
taxes, if any, attributable to the issuance of shares upon the exercise of
Adelphi Warrants.
5. Reservation of Shares, etc. There have been reserved, and the
Company shall at all times keep reserved, out of the authorized and unissued
Common Stock, a number of shares of Common Stock sufficient to provide for the
exercise of the rights of purchase represented by the outstanding Adelphi
Warrants. The transfer agent for the Common Stock (the "Transfer Agent"), will
be irrevocably authorized and directed at all times until the Expiration Date
to reserve such number of authorized and unissued shares as shall be required
for this purpose. The Company will keep a copy of this Agreement on file with
the Transfer Agent. The Company will supply any such Transfer Agent with duly
executed stock certificates for such purpose and will itself provide or
otherwise make available any cash which may be distributable as provided in
Section 7 of this Agreement. All Adelphi Warrants surrendered in the exercise
of the rights thereby evidenced shall be cancelled, and such cancelled Adelphi
Warrants shall constitute sufficient evidence of the number of shares of
Common Stock that have been issued upon the exercise of such Adelphi Warrants.
6. Adjustments of Exercise Price and Number of Shares. The Exercise
Price and the number and kind of securities purchasable upon exercise of each
Adelphi Warrant shall be subject to adjustment from time to time upon the
happening of certain events that may occur after the date hereof and prior to
the Expiration Date, as follows:
A. In case the Company shall (i) declare a dividend on its
Common Stock in shares of Common Stock or make a distribution
in shares of Common Stock, (ii) subdivide its outstanding
shares of Common
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Stock into a greater number of shares, (iii) combine its
outstanding shares of Common Stock into a smaller number of
shares of Common Stock or (iv) issue a reclassification of its
shares of Common Stock or other securities of the Company
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), the number of Warrant Shares purchasable upon
exercise of each Adelphi Warrant immediately prior thereto
shall be adjusted so that the Holder of each Adelphi Warrant
shall be entitled to receive the kind and number of Warrant
Shares or other securities of the Company which he would have
owned or have been entitled to receive after the happening of
any of the events described above, had such Adelphi Warrant
been exercised immediately prior to the happening of such event
or any record date with respect thereto. An adjustment made
pursuant to this Paragraph A shall become effective immediately
after the effective date of such event retroactive to
immediately after the record date, if any, for such event.
B. In the event the Company shall issue rights, options or
warrants to all (or substantially all) holders of its shares of
Common Stock, without any charge to such holders, entitling
them (for a period expiring within 45 days after the record
date mentioned below in this Paragraph B) to subscribe for or
to purchase shares of Common Stock at a price per share that is
lower at the record date mentioned below than the Exercise
Price per share of Common Stock in effect immediately prior to
such issuance or sale, the number of Warrant Shares thereafter
purchasable upon exercise of each Adelphi Warrant shall be
determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of each Adelphi Warrant
by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on such record date plus the
number of additional shares of Common Stock offered for
subscription or purchase, and of which the denominator shall be
the number of shares of Common Stock outstanding on such record
date plus the number of shares which the aggregate offering
price of the total number of shares of Common Stock so offered
would purchase at the then current market price per share of
Common Stock. Such adjustment shall be made whenever such
rights, options or warrants are issued, and shall become
effective retroactively to immediately after the record date
for the determination of shareholders entitled to receive such
rights, options or warrants.
C. In case the Company shall distribute to all (or
substantially all) holders of its shares of Common Stock shares
of stock other than Common Stock or evidences of its
indebtedness or assets (excluding cash dividends payable out of
consolidated earnings or retained earnings and dividends or
distributions referred to in
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Paragraph A above) or rights, options or warrants or
convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock (excluding
those referred to in Paragraph B above), then in each case the
number of Warrant Shares thereafter purchasable upon the
exercise of each Adelphi Warrant shall be determined by
multiplying the number of Warrant Shares theretofore
purchasable upon the exercise of each Adelphi Warrant, by a
fraction, of which the numerator shall be the current market
price per share of Common Stock (as defined in Paragraph D
below) on the record date mentioned below in this Paragraph C,
and of which the denominator shall be the current market price
per share of Common Stock on such record date, less the then
fair value (as determined by the Board of Directors of the
Company) of the portion of the shares of stock other than
Common Stock or assets or evidences of indebtedness so
distributed or of such subscription rights, options or
warrants, or of such convertible or exchangeable securities
applicable to one share of Common Stock. Such adjustment shall
be made whenever any such distribution is made, and shall
become effective on the date of distribution retroactive to
immediately after the record date for the determination of
shareholders entitled to receive such distribution.
D. For the purpose of any computation under Paragraph C of this
Section 6, the current market price per share of Common Stock
at any date shall be the average of the daily closing prices
for the 15 consecutive trading days commencing 20 trading days
before the date of such computation. The closing price for each
day shall be the last reported sale price regular way or, in
such case no such reported sale takes place on such day, the
average of the closing bid and asked prices regular way for
such day, in either case on the principal national securities
exchange on which the shares are listed or admitted to trading
on any national securities exchange, but are traded in the
over-the-counter market, the closing sale price of the Common
Stock or, in case no sale is publicly reported, the average of
the representative closing bid and asked quotations for the
Common Stock on the National Association of Securities Dealers
Automated Quotation ("NASDAQ") system or any comparable system,
or if the Common Stock is not listed on NASDAQ or a comparable
system, the closing sale price of the Common Stock or, in case
no sale is publicly reported, the average of the closing bid
and asked prices as furnished by two members of the NASD
selected from time to time by the Company for that purpose.
E. No adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would
require an increase or decrease of at least 1% in the number of
Warrant Shares purchasable upon the exercise of each Adelphi
Warrant;
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provided, however, that any adjustments which by reason of this
Paragraph E are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
All calculations shall be made to the nearest one thousandth of
a share. Anything in this Section 6 to the contrary
notwithstanding, the Company shall be entitled, but shall not
be required, to make such changes in the number of Warrant
Shares purchasable upon the exercise of each Adelphi Warrant,
in addition to those required by this Section 6, as it in its
discretion shall determine to be advisable in order that any
dividend or distribution in shares of Common Stock,
subdivision, reclassification or combination of shares of
Common Stock, issuance of rights, warrants or options to
purchase Common Stock, or distribution of shares of stock other
than Common Stock, evidences of indebtedness or assets (other
than distributions of cash out of consolidated earnings or
retained earnings) or convertible or exchangeable securities
hereafter made by the Company to the holders of its Common
Stock shall not result in any tax to the holders of its Common
Stock or securities convertible into Common Stock.
F. Whenever the number of Warrant Shares purchasable upon the
exercise of each Adelphi Warrant is adjusted, as herein
provided, the Exercise Price shall be adjusted by multiplying
such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Warrant
Shares purchasable upon the exercise of each Adelphi Warrant
immediately prior to such adjustment, and of which the
denominator shall be the number of Warrant Shares so
purchasable immediately thereafter.
G. For the purpose of this Section 6, the term "shares of
Common Stock" shall mean (i) the class of stock designated as
the Common Stock of the Company as the date of this Agreement
or (ii) any other class of stock resulting from successive
changes or reclassification of such shares consisting solely of
changes in par value, or from par value to no par value, or
from no par value to par value. In the event that at any time,
as a result of an adjustment made pursuant to Paragraph A
above, the Holders shall become entitled to purchase any shares
of Capital Stock of the Company other than shares of Common
Stock, thereafter the number of such other shares so
purchasable upon exercise of each Adelphi Warrant and the
Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Warrant
Shares contained in Paragraphs A through F, inclusive, above,
and paragraphs H through M, inclusive, of this Section 6, and
the provisions of Sections 3, 4, 5 and 8, with respect to the
Warrant Shares, shall apply on like terms to any such shares.
5
H. Upon the expiration of any rights, options or warrants or
conversion or exchange privileges, if any thereof shall not
have been exercised, the Exercise Price and the number of
shares of Common Stock purchasable upon the exercise of each
Adelphi Warrant shall, upon such expiration, be readjusted and
shall thereafter be such as it would have been had it
originally been adjusted (or had the original adjustment not
been required, as the case may be) as if (x) the only shares of
Common Stock so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such rights,
options or warrants or conversion rights and (y) such shares of
Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the
aggregate consideration, if any, actually received by the
Company for the issuance, sale or grant of all of such rights,
options, warrants or conversion or exchange rights whether or
not exercised; provided, however, that no such readjustment
shall have the effect of increasing the Exercise Price by an
amount in excess of the amount of the adjustment initially made
in respect to the issuance, sale or grant of such rights,
options, warrants or conversion or exchange rights.
I. The Company may at its option, at any time during the term
of the Adelphi Warrants, reduce the then current Exercise Price
to any amount deemed appropriate by the Board of Directors of
the Company.
J. Whenever the number of Warrant Shares purchasable upon the
exercise of each Adelphi Warrant or the exercise Price of such
Warrant Shares is adjusted, as herein provided, the Company
shall promptly mail by first class mail, postage prepaid, to
each Holder notice of such adjustment of adjustments. The
Company may retain a firm of independent public accountants
(who may be the regular accountants employed by the Company) to
make any computation required by this Section 6 and shall cause
such accountants to prepare a certificate setting forth the
number of warrant Shares purchasable upon the exercise of each
Adelphi Warrant and the Exercise Price of such Warrant Shares
after such adjustment, setting forth a brief statement of the
facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Such certificate
shall be conclusive of the correctness of such adjustment and
each Holder shall have the right to inspect such certificate
during reasonable business hours.
K. Except as provided in this Section 6, no adjustment in
respect of any dividends paid in cash out of earnings and
profits of the Company shall be made during the term of an
Adelphi Warrant or upon the exercise of an Adelphi Warrant.
6
L. In case of any consolidation of the Company with or merger
of the Company with or into another corporation or in case of
any sale or conveyance to another corporation of the property
of the Company as an entirety or substantially as an entirety,
the Company or each successor or purchasing corporation (or an
affiliate of such successor or purchasing corporation), as the
case may be, agrees that the Adelphi Warrants shall remain in
effect and shall be binding upon the successor company and that
each Holder shall have the right thereafter upon payment of the
Exercise Price in effect immediately prior to such action to
purchase upon exercise of each Adelphi Warrant the kind and
amount of shares and other securities and property (including
cash) which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale
or conveyance had such Adelphi Warrant been exercised
immediately prior to such action. The provisions of this
Paragraph L shall similarly apply to successive consolidations,
mergers, sales or conveyances.
M. Notwithstanding any adjustment in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the
Adelphi Warrants pursuant to this Agreement, certificates for
Adelphi Warrants issued prior or subsequent to such adjustment
may continue to express the same price and number and kind of
shares as are initially issuable pursuant to this Agreement,
but the Holders may request replacement Warrants reflecting the
correct number of shares.
7. Fractional Interests. The Company shall not be required to issue
fractions of shares of Common Stock on the exercise of the Adelphi Warrants.
8. Registration Rights.
A. Piggyback Registration.
(i) In the event that during the six-year period following
the Company's initial public offering of its Common Stock, the Company
determines to proceed with the preparation and filing of an additional
registration statement under the Securities Act of 1933, as amended ("the
Securities Act"), in connection with the proposed offer and sale for cash of
any of its securities by it or any of its other security holders (other than a
registration statement on Forms X-0, X-0, or other limited purpose form), the
Company shall give written notice of its determination to all record Holders
of the Adelphi Warrants, and Warrant Shares (collectively, the "Registrable
Securities"). Upon the written request of a Holder of Registrable Securities,
given within 20 days after receipt of any such notice from the Company, and
provided the Company receives from such Holder all other information the
Company reasonably requests, the Company shall, subject to the remainder of
this Section 8A., cause such Holder's Registrable Securities to be included in
such registration statement. Nothing herein shall prevent the Company from, at
any time, abandoning or delaying any registration contemplated by this Section
8A.
7
(ii) If any registration pursuant to this Section 8A. is
underwritten in whole or in part, the Company may also require that the
included Registrable Securities be included in the underwriting on the same
terms and conditions as the other securities being sold through such
underwriter(s) and that each Holder thereof enter into an appropriate
underwriting agreement. If, in the good faith judgement of the managing
underwriter of such public offering, the inclusion of such Registrable
Securities and any other securities having similar piggyback registration
rights for which registration at the same time as such Registrable Securities
has been requested (such Registrable Securities and other securities being
collectively, the "Piggyback Securities") would interfere with the successful
marketing, or require a reduction in the number, of the securities offered by
the Company, the number of the Piggyback Securities otherwise to be included
in such underwritten public offering may be reduced pro rata (as the Company,
in its sole discretion, deems equitable) among the Holders thereof or excluded
in their entirety if so required by the underwriter(s). The excluded
Registrable Securities shall be withheld from the market by the Holders
thereof for a period, not to exceed 180 days, which the managing underwriter
reasonably determines is necessary in order to effect the underwritten public
offering.
B. Action to be Taken by the Company. In connection with the
registration of Registrable Securities pursuant hereto, the Company agrees to:
(i) Bear the expense of any registration or qualification
under (a) of this section, including but not limited to legal, accounting and
printing fees; provided, however, that in no event shall the Company be
obligated to pay (A) any fees or disbursements of special counsel for Holders
of Registrable Securities, or (B) any underwriters' discount or commission in
respect of Registrable Securities;
(ii) Use its best efforts to register or qualify
Registrable Securities for offer or sale under state securities or blues sky
laws of New York and such other jurisdictions in which Adelphi shall
reasonably request;
(iii) Enter into a cross-indemnity agreement, in customary
form, with each underwriter, if any, and each Holder of Registrable Securities
included in such Registration Statement.
9. Notice to Holders.
A. Nothing contained in this Agreement or in any of the Adelphi
Warrants shall be construed as conferring upon the Holders thereof the right
to vote or to receive dividends or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of
directors of the Company or any other matter, or any rights whatsoever as
shareholders of the Company; provided, however, that in the event that a
meeting of shareholders shall be called to consider and take action on a
proposal for the voluntary dissolution of the Company, other than in
connection with a consolidation, merger or sale of all, or substantially all,
of its property, assets, business and good will as an entirety, then and in
that event the Company shall cause a notice there of to be sent by first-class
mail, postage prepaid, at least 15 days prior to the date fixed as a record
date or the date of closing the transfer books in relation to such meeting, to
each registered Holder of Adelphi warrants at such Holder's address appearing
on the Adelphi Warrant register; but failure to
8
mail or to receive such notice or any defect therein or in the mailing thereof
shall not affect the validity of any action taken in connection with such
voluntary dissolution. If such notice shall have been so given and if such
voluntary dissolution shall be authorized at such meeting or any adjournment
thereof, then from and after the date on which such voluntary dissolution
shall have been duly authorized by the shareholders, the purchase rights
represented by the Adelphi Warrants and all other rights with respect thereto
shall cease and terminate.
B. In the event that the Company intends to make any
distribution on its Common Stock (or other securities which may be purchasable
in lieu thereof upon the exercise of Adelphi Warrants), including, without
limitation, any such distribution to be made in connection with a
consolidation or merger in which the Company is the continuing corporation, or
to issue subscription rights or warrants to holders of its Common Stock, the
Company shall cause a notice of its intention to make such distribution to be
sent by first-class mail, postage prepaid, at least 15 days prior to the date
fixed as a record date or the date of closing the transfer books in relation
to such distribution, to each registered Holder of Adelphi Warrants at such
Holder's address appearing on the Adelphi warrant register, but failure to
mail or to receive such notice or any defect therein or in the mailing thereof
shall not affect the validity of any action taken in connection with such
distribution.
10. Notices. Any notice pursuant to this Agreement to be given
or made by the Holder of any Adelphi Warrant and/or Warrant Share to the
Company shall be sufficiently given or made if sent by first class mail,
postage prepaid, addressed as follows or to such other address as the Company
may designate by notice given in accordance with this Section 10 to the
Holders of Adelphi Warrants and/or Warrant Shares:
EDUCATIONAL VIDEO CONFERENCING, INC.
00 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Notices or demands authorized by this Agreement to be made by the
Company to the Holder of any Adelphi Warrant and/or Warrant Share shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to:
ADELPHI UNIVERSITY
Vice President of Finance and Treasurer
Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
11. Opinion of Counsel. Counsel to the Company shall deliver to
Adelphi an opinion, dated the date hereof, satisfactory to counsel for
Adelphi, to the effect that (i) the Adelphi Warrants and this Agreement have
been authorized by all necessary corporate action, (ii) the Adelphi Warrants
and this Agreement have been duly authorized, executed and delivered and each
constitutes a legal, valid and binding obligation of the company enforceable
in accordance with its terms, (iii) the Company has reserved out of its
authorized and unissued shares of Common Stock, a number of shares sufficient
to provide for the exercise of the rights of purchase represented by the
Adelphi Warrants and (iv) the Warrant Shares, when issued upon exercise of
Adelphi Warrants in accordance with the terms of the Adelphi Warrants and this
Agreement, will be validly issued, fully paid and non-assessable.
9
12. Governing Law. This Agreement and each Adelphi Warrant issued
hereunder shall be governed by and construed in accordance with the
substantive laws of the State of New York. The Company hereby agrees to accept
service of process by notice given to it pursuant to the provisions of Section
10.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same instrument.
10
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
(Corporate Seal) EDUCATIONAL VIDEO CONFERENCING, INC.
Attest: By: /s/ Xx. Xxxx X. Xxxxxxxx
---------------------------------
/s/ Xxxxxxx Xxxxxxxxxx
- ---------------------------
ADELPHI UNIVERSITY
(Corporate Seal) By: /s/ Xxxxxxxxx Xxxxxxxxx
---------------------------------
Attest:
/s/
- ---------------------------
11
ATTACHMENT 1
75,000 Warrants
EDUCATIONAL VIDEO CONFERENCING, INC.
Warrant Certificate
THIS CERTIFIES THAT for value received ADELPHI UNIVERSITY, or registered
assigns, is the owner of the number of Warrants set forth above, each of which
entitles the owner thereof upon presentation and surrender of this Warrant
Certificate with the form of Election to Purchase duly executed, to purchase
at any time from the first anniversary of the effective date of the
Registration Statement until 5:00 p.m., New York City time on the date six
years from the effective date of the Registration Statement (the "Expiration
Date"), one fully paid and non-assessable share of the common stock, par
value, $.0001 per share (the "Common Stock"), of EDUCATIONAL VIDEO
CONFERENCING, INC., a New York Corporation (the "Company"), at a purchase
price per share of $2.72 (the "Exercise Price"). The number of Warrants
evidenced by this Warrant Certificate (and the number of shares which may be
purchased upon exercise thereof) set forth above, and the Exercise Price per
share set forth above, are the number and Exercise Price as of the date of
original issuance of the Warrants, based on the shares of Common Stock of the
Company as constituted at such date. As provided in the Warrant Agreement
referred to below, the Exercise Price and the number or kind of shares which
may be purchased upon the exercise of the Warrants evidenced by this Warrant
Certificate are, upon the happening of certain events, subject to modification
and adjustment.
This Warrant Certificate is subject to, and entitled to the benefits of,
all of the terms, provisions and conditions of an agreement dated as of May
13, 1997 (the "Warrant Agreement") between the Company and Adelphi University,
which Warrant Agreement is hereby incorporated herein by reference and made
part hereof and to which Warrant Agreement reference is hereby made for a full
description of the rights, limitations of rights, duties and immunities
hereunder of the Company and the holders of the Warrant Certificates.
This Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the holder to purchase a like aggregate number
of shares of Common Stock as the Warrants evidenced by the Warrant Certificate
or Warrant Certificates surrendered entitled such holder to purchase. If this
Warrant Certificate shall be exercised in part, the holder hereof shall be
entitled to receive upon surrender hereof another Warrant Certificate or
Warrant Certificates for the number of whole Warrants not exercised.
No fractional shares of Common Stock will be issued upon the exercise of
any Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Warrant Agreement.
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
12
purpose, nor shall anything contained in the Warrant Agreement or herein be
construed to confer upon the holder hereof, or any right to vote for the
election of directors or upon any matter submitted to stockholders 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 or change of stock to no par value, consolidation, merger,
conveyance or otherwise) or except as provided in the Warrant Agreement, to
receive notice of meetings, or to receive dividends or subscription rights or
otherwise, until the Warrant or Warrants evidenced by this Warrant Certificate
shall have been exercised and payment for the Warrant Shares shall have been
made, and the Warrant Shares shall have become deliverable as provided in the
Warrant Agreement.
If this Warrant shall be surrendered for exercise within any period
during which the transfer books for the Company's Common Stock or other class
of stock purchasable upon the exercise of this Warrant are closed for any
purpose, the Company shall not be required to make delivery of certificates
for shares purchasable upon such exercise until the date of the reopening of
said transfer books.
This Warrant, and the rights of the Holder hereof, shall be governed by
the law of the State of New York.
IN WITNESS THEREOF, EDUCATIONAL VIDEO CONFERENCING, INC. has caused the
signature (or facsimile signature) of its President and Secretary to be printed
hereon and its corporate seal (or facsimile) to be printed hereon.
Dated: 3/16/98
EDUCATIONAL VIDEO CONFERENCING, INC.
By /s/ Xxxx X. Xxxxxxxx
----------------------------------
(Corporate Seal)
Attest:
/s/ Xxxxxxx Xxxxxxxxxx
- --------------------------
Secretary
13
FORM OF
ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the Warrant Certificates.)
FOR VALUE RECEIVED hereby sells, assigns and transfers unto this Warrant
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint , to transfer the within Warrant
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: , 19
-------------- ---
Signature
-----------------------------------
Signature Guaranteed:
NOTICE
The signature on the foregoing Assignment must correspond to the name as
within upon the face of this Warrant Certificate, in every particular, without
alteration or enlargement or any change whatsoever.
FORM OF
ELECTION TO PURCHASE
(To be executed if holder desires to exercise Warrant Certificate.)
TO EDUCATIONAL VIDEO CONFERENCING, INC.:
The undersigned hereby irrevocably elects to exercise Warrants
represented by this Warrant Certificate to purchase the shares of Common Stock
issuable. Upon the exercise of such Warrants and requests that certificates
for such shares in the name of:
Please insert your social security number or other identifying number
--------------------------------
--------------------------------
(Please print name and address)
--------------------------------
If such number of Warrants shall not be all the Warrants evidenced by
this Warrant Certificate, a new Warrant Certificate for the balance
remaining of such Warrants shall be registered in the name of and
delivered to:
- -------------------------------
- -------------------------------
(Please print name and address)
- -------------------------------
Dated:
--------------------------
---------------------------------------
(Signature must conform in all respects
name of holder as specified on the face
of this Warrant Certificate)
15
