Contract
THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE
OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER
SAID
ACT
AND
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO VGTEL, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
Right
to
Purchase _________ Shares of Common
Stock
of
VGTel. Inc. (subject to
adjustment
as provided herein)
SERIES
C
COMMON STOCK PURCHASE WARRANT
No.
___
Issue Date: _____________
VGTel,
Inc., a corporation organized under the laws of the State of New York (the
"Company"), hereby certifies that, for value received,______________________
or
permissable assigns, is entitled, subject to the terms set forth below, to
purchase from the Company at anytime after 150
days
following effectiveness of the Registration statement by the SEC, (the
"
Initial Exercise Date") at any time or from time to time before 5:00 p.m.,
New
York time, until the second anniversary following the date the Registration
Statement is deemed effective by the SEC. (the "Expiration Date"), up to
_________ fully paid and nonassessable shares of Common Stock (as hereinafter
defined), $.0001 par value per share, of the Company, at a purchase price of
$0.25 per share of Common Stock (such purchase price per share as adjusted
from
time to time as herein provided is referred to herein as the "Purchase Price").
The number and character of such shares of Common Stock and the Purchase Price
are subject to adjustment as provided herein.
As
used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a)
The
term Company shall include VGTel, Inc. and any corporation which shall succeed
or assume the obligations of VGTel, Inc. hereunder.
(b)
The
term "Common Stock" includes (a) the Company's Common Stock, $.0001 par value
per share, as authorized on the date of the Agreement, (b) any other capital
stock of any class or classes (however designated) of the Company, authorized
on
or after such date, the holders of which shall have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and the holders of which
shall ordinarily, in the absence of contingencies, be entitled to vote for
the
election of a majority of directors of the Company (even if the right so to
vote
has been suspended by the happening of such a contingency) and (c) any other
securities into which or for which any of the securities described in (a) or
(b)
may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(c)
The
term "Other Securities" refers to any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which
the
holder of the Warrant at any time shall be entitled to receive, or shall have
received, on the exercise of the Warrant, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other
Securities
pursuant to Section 5 or otherwise.
1.
Exercise of Warrant.
1.1.
Number of Shares Issuable upon Exercise. From and after the date hereof through
and including the Expiration Date, the holder hereof shall be entitled to
receive, upon exercise of this Warrant in whole in accordance with the terms
of
subsection 1.2 or upon exercise of this Warrant in part in accordance with
subsection 1.3, the number of shares of Common Stock of the Company identified
on Page 1 hereof, subject to adjustment pursuant to Section 4.
1.2.
Full
Exercise. This Warrant may be exercised in full by the holder hereof by
surrender of this Warrant, with the form of subscription attached as Exhibit
A
hereto (the Subscription Form") duly executed by such holder, to the Company
at
its principal office or at the office of its Warrant agent (as provided in
Section 11), accompanied by payment, in cash or by certified or official bank
check payable to the order of the Company, in the amount obtained by multiplying
the number of shares of Common Stock for which this Warrant is then exercisable
by the Purchase Price (as hereinafter defined) then in effect.
1.3.
Partial Exercise. This Warrant may be exercised in part (but not for a
fractional share) by surrender of this Warrant in the manner and at the place
provided in subsection 1.2 except that the amount payable by the holder on
such
partial exercise shall be the amount obtained by multiplying (a) the number
of
shares of Common Stock designated by the holder in the Subscription Form by
(b)
the Purchase Price. On any such partial exercise, the Company, at its expense,
will forthwith issue and deliver to or upon the order of the holder hereof
a new
Warrant of like tenor, in the name of the holder hereof or as such holder (upon
payment by such holder of any applicable transfer taxes), may request, the
number of shares of Common Stock for which such Warrant may still be
exercised.
1.4.
Fair
Market Value. Fair Market Value of a share of Common Stock as of a particular
date (the "Determination Date") shall mean the Fair Market Value of a share
of
the Company's Common Stock. Fair Market Value of a share of Common Stock as
of a
Determination Date shall mean:
(a)
If
the Company's Common Stock is traded on an exchange or is quoted on the National
Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ") National
Market System or the NASDAQ SmallCap Market, then the closing or last sale
price, respectively, reported for the last business day immediately preceding
the Determination Date.
(b)
If
the Company's Common Stock is not traded on an exchange or on the NASDAQ
National Market System or the NASDAQ SmallCap Market but is traded in the
over-the-counter market, then the mean of the closing bid and asked prices
reported for the last business day immediately preceding the Determination
Date.
(c)
Except as provided in clause (d) below, if the Company's Common Stock is not
publicly traded, then as the Holder and the Company agree or in the absence
of
agreement by arbitration in accordance with the rules then standing of the
American Arbitration Association, before a single arbitrator to be chosen from
a
panel of persons qualified by education and training to pass on the matter
to be
decided.
(d)
If
the Determination Date is the date of a liquidation, dissolution or winding
up,
or any event deemed to be a liquidation, dissolution or winding up pursuant
to
the Company's charter, then all amounts to be payable per share to holders
of
the Common Stock pursuant to the charter in the event of such liquidation,
dissolution or winding up, plus all other amounts to be payable per share in
respect of the Common Stock in liquidation under the charter, assuming for
the
purposes of this clause (d) that all of the shares of Common Stock then issuable
upon exercise of all of the Warrants are outstanding at the Determination
Date.
1.5.
Company Acknowledgment. The Company will, at the time of the exercise of the
Warrant, upon the request of the holder hereof acknowledge in writing its
continuing obligation to afford to such holder any rights to which such holder
shall continue to be entitled after such exercise in accordance with the
provisions of this Warrant. If the holder shall fail to make any such request,
such failure shall not affect the continuing obligation of the Company to afford
to such holder any such rights.
1.6.
Trustee for Warrant Holders. In the event that a bank or trust company shall
have been appointed as trustee for the holders of the Warrants pursuant to
Subsection 3.1, such bank or trust company shall have all the powers and duties
of a warrant agent appointed pursuant to Section 10 and shall accept, in its
own
name for the account of the Company or such successor person as may be entitled
thereto, all amounts otherwise payable to the Company or such successor, as
the
case may be, on exercise of this Warrant pursuant to this Section
1.
2.
Delivery of Stock Certificates, etc. on Exercise. The Company agrees that the
shares of Common Stock purchased upon exercise of this Warrant shall be deemed
to be issued to the holder hereof as the record owner of such shares as of
the
close of business on the date on which this Warrant shall have been surrendered
and payment made for such shares as aforesaid. As soon as practicable after
the
exercise of this Warrant in full or in part, and in any event within 10 days
thereafter, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered
to
the holder hereof, or as such holder (upon payment by such holder of any
applicable transfer taxes) may direct, a certificate or certificates for the
number of duly and validly issued, fully paid and nonassessable shares of Common
Stock (or Other Securities) to which such holder shall be entitled on such
exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then Fair
Market Value of one full share, together with any other stock or other
securities and property (including cash, where applicable) to which such holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3.
Adjustment for Reorganization, Consolidation, Merger, etc.
3.1.
Reorganization, Consolidation, Merger, etc. In case at any time or from time
to
time, the Company shall (a) effect a reorganization, (b) consolidate with or
merge into any other person, or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Company, then, in each such case, as a
condition to the consummation of such a transaction, proper and adequate
provision shall be made by the Company whereby the holder of this Warrant,
on
the exercise hereof as provided in Section 1 at any time after the consummation
of such reorganization, consolidation or merger or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Common Stock
(or
Other Securities) issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash)
to
which such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such holder had so
exercised this Warrant, immediately prior thereto, all subject to further
adjustment thereafter as provided in Section 5.
3.2.
Dissolution. In the event of any dissolution of the Company following the
transfer of all or substantially all of its properties or assets, the Company,
prior to such dissolution, shall at its expense deliver or cause to be delivered
the stock and other securities and property (including cash, where applicable)
receivable by the holders of the Warrants, if exercised, after the effective
date of such dissolution pursuant to this Section 3 to a bank or trust company
having its principal
office
in
New York, NY, as trustee for the holder or holders of the Warrants.
3.3.
Continuation of Terms. Upon any reorganization, consolidation, merger or
transfer (and any dissolution following any transfer) referred to in this
Section 3, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the consummation
of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in
the
case of any such transfer, the person acquiring all or substantially all of
the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section
5.
4.
Extraordinary Events Regarding Common Stock. In the event that the Company
shall
(a) issue additional shares of the Common Stock as a dividend or other
distribution on outstanding Common Stock, (b) subdivide its outstanding shares
of Common Stock, or (c) combine its outstanding shares of the Common Stock
into
a smaller number of shares of the Common Stock, then, in each such event, the
Purchase Price shall, simultaneously with the happening of such
event,
be
adjusted by multiplying the then Purchase Price by a fraction, the numerator
of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Purchase
Price
then in effect. The Purchase Price, as so adjusted, shall be readjusted in
the
same manner upon the happening of any successive event or events described
herein in this Section 4. The number of shares of Common Stock that the holder
of this Warrant shall thereafter, on the exercise hereof as provided in Section
1, be entitled to receive shall be increased to a number determined by
multiplying the number of shares of Common Stock that would otherwise (but
for
the
provisions of this Section 4) be issuable on such exercise by a fraction of
which (a) the numerator is the Purchase Price that would otherwise (but for
the
provisions of this Section 4) be in effect, and (b) the denominator is the
Purchase Price in effect on the date of such exercise.
5.
Chief
Financial Officer's Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock (or Other Securities)
issuable on the exercise of the Warrants, the Company at its expense will
promptly cause its Chief Financial Officer to compute such adjustment or
readjustment in accordance with the terms of the Warrant and prepare a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based, including a
statement of (a) the consideration received or receivable by the Company for
any
additional shares of Common Stock (or Other Securities) issued or sold or deemed
to have been issued or sold, (b) the number of shares of Common Stock (or Other
Securities) outstanding or deemed to be outstanding, and (c) the Purchase Price
and the number of shares of Common Stock to be received upon exercise of
this
Warrant,
in effect immediately prior to such adjustment or readjustment and as adjusted
or readjusted as provided in this Warrant. The Company will forthwith mail
a
copy of each such certificate to the holder of the Warrant and any Warrant
agent
of the Company (appointed pursuant to Section 10 hereof).
6.
Reservation of Stock, etc. Issuable on Exercise of Warrant; Financial
Statements. The Company will at all times reserve and keep available, solely
for
issuance and delivery on the exercise of the Warrants, all shares of Common
Stock (or Other Securities) from time to time issuable on the exercise of the
Warrant. This Warrant entitles the holder hereof to receive copies of all
financial and other information distributed or required to be distributed to
the
holders of the Company's Common Stock.
7.
Assignment; Exchange of Warrant. Subject to compliance with applicable
Securities laws, and delivery of such representations and warranties as shall
reasonably be requested by the Company, this Warrant, and the rights evidenced
hereby, may be transferred by any registered holder hereof (a "Transferor")
with
respect to any or all of the Shares. On the surrender for exchange of this
Warrant, with the Transferor's endorsement in the form of Exhibit B
attached
hereto
(the Transferor Endorsement Form"), to the Company, the Company at its expense
but with payment by the Transferor of any applicable transfer taxes) will issue
and deliver to or on the order of the Transferor thereof a new Warrant or
Warrants of like tenor, in the name of the Transferor and/or the transferee(s)
specified in such Transferor Endorsement Form (each a
"Transferee"),
calling in the aggregate on the face or faces thereof for the number of shares
of Common Stock called for on the face or faces of the Warrant so surrendered
by
the Transferor.
8.
Replacement of Warrant. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and,
in
the case of any such loss, theft or destruction of this Warrant, on delivery
of
an indemnity agreement or security reasonably satisfactory in form and amount
to
the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense will execute
and
deliver,
in lieu thereof, a new Warrant of like tenor.
9.
Registration Rights. The holder of this Warrant has been granted certain
registration rights by the Company. These registration rights are set forth
in a
Subscription Agreement entered into by the initial holder of this Warrant and
the Company in connection with the purchase of the Unit of which this Warrant
is
a part. The terms of the Subscription Agreement and Registration
Rights
Agreement
referred to therein are incorporated herein by this reference.
10.
Warrant Agent. The Company may, by written notice to the each holder of the
Warrant, appoint an agent having an office in New York, NY for the purpose
of
issuing Common Stock (or Other Securities) on the exercise of this Warrant
pursuant to Section 1, exchanging this Warrant pursuant to Section 7, and
replacing this Warrant pursuant to Section 8, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall
be made at such office by such agent.
11.
Transfer on the Company's Books. Until this Warrant is transferred on the books
of the Company, the Company may treat the registered holder hereof as the
absolute owner hereof for all purposes, notwithstanding any notice to the
contrary.
12.
Call
Option. The Company shall have the option to "call" the Warrants (the "Warrant
Call"), in accordance with and governed by the following:
(a)
The
Company shall exercise the Warrant Call by giving to each Warrant Holder a
written notice of call (the "Call Notice") at any time prior to the Expiration
Date.
(b)
The
Warrant Holders shall exercise their Warrant rights and purchase the appropriate
number of shares of Common Stock and pay for same all within 10 business days
of
the date of the Call Notice. Any Warrants which are Called and not exercised
during such 10 business day period shall thereafter not be
exercisable.
13.
Notices, etc. All notices and other communications from the Company to the
holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, at such address as may have been furnished to the Company
in writing by such holder or, until any such holder furnishes to the Company
an
address, then to, and at the address of, the last holder of this Warrant who has
so furnished an address to the Company.
14.
Miscellaneous. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination
is
sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of New York. Any dispute relating to this Warrant shall
be
adjudicated in New York State. The headings in this Warrant are for purposes
of
reference only, and shall not limit or otherwise affect any of the terms hereof.
The invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of
any
other
provision.
IN
WITNESS WHEREOF, the Company has executed this Warrant under seal as
of
the
date
first written above.
By:_______________________________
Title:____________________________
Witness:
__________________________
Exhibit
A
FORM
OF
SUBSCRIPTION
(To
be
signed only on exercise of Warrant)
TO:
VGTel, Inc.
The
undersigned, the holder of the within Warrant, hereby irrevocably elects
to
exercise
this Warrant for, and to purchase thereunder, shares of Common Stock
of
VGTel,
Inc. and herewith makes payment of $ therefor, and requests
that
the
certificates for such shares be issued in the name of, and delivered
to
whose
address is _______________________________________________________.
Dated:___________________
_____________________________________________
(Signature
must conform to name of holder as
specified
on the face of the Warrant)
_____________________________________________
(Address)
Exhibit
B
FORM
OF
TRANSFEROR ENDORSEMENT
(To
be
signed only on transfer of Warrant)
For
value
received, the undersigned hereby sells, assigns, and transfers
unto
the
person(s) named below under the heading "Transferees" the right
represented
by the within Warrant to purchase the percentage and number of
shares
of
Common Stock of VGTel, Inc. to which the within Warrant
relates
specified under the headings "Percentage Transferred" and "Number
Transferred,"
respectively, opposite the name(s) of such person(s) and appoints
each
such
person Attorney to transfer its respective right on the books of
VGTel,
Inc. with full power of substitution in the premises.
================================================================================
Transferees
Percentage Number
Transferred
Transferred
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
Dated:
,
19___ _______________________________
(Signature
must conform to name
of
holder
as specified on the
face
of
the warrant)
Signed
in
the presence of:
___________________________
_________________________________
(Name)
(address)
_________________________________
(address)
ACCEPTED
AND AGREED:
[TRANSFEREE]
___________________________
(Name)
