THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"), OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION, AND NO INTEREST THEREIN
MAY BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER THE 1933
ACT OR, UNDER CERTAIN CIRCUMSTANCES, AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH TRANSACTION WILL NOT BE IN VIOLATION OF APPLICABLE SECURITIES
LAWS.
ISSUED: JANUARY 3, 1997 WARRANT TO PURCHASE number
VOID AFTER FIVE YEARS SHARES OF COMMON STOCK
APPLIED VOICE TECHNOLOGY, INC.
COMMON STOCK PURCHASE WARRANT
For value received and subject to the terms and conditions hereof, name
(the "Holder") is entitled to purchase up to number fully paid and nonassessable
shares of the Common Stock, par value $.01 per share, of APPLIED VOICE
TECHNOLOGY, INC., a Washington corporation (the "Company"), at the price per
share of $13.36 (the "Exercise Price") (such number of shares and the Exercise
Price being subject to adjustment as provided herein).
This Warrant is subject to the following additional terms and
conditions:
1. Method of Exercise
Except as provided in Section 5 hereof, this Warrant may be exercised,
in whole or in part, at any time not later than five years from the date of
issuance hereof (the "Grant Date"), by delivering to the Company (a) the form of
Election to Purchase attached hereto duly completed and executed by the Holder,
(b) this Warrant, and (c) payment of the aggregate Exercise Price for the number
of shares thereby purchased (the "Purchase Price") by bank check payable to the
Company or by wire transfer to an account designated by the Company (each such
date of exercise being an "Exercise Date").
2. Delivery of Stock Certificates
Within ten days after the exercise of this Warrant (in whole or in
part) and the payment of the Purchase Price, the Company at its expense shall
issue in the name of and deliver to the Holder (a) a certificate or certificates
for the number of fully paid and nonassessable shares of Common Stock to which
the Holder shall be entitled upon such exercise and payment, and (b) if this
Warrant has not expired, a new Warrant of like tenor to purchase up to that
number of shares of Common Stock, if any, not previously purchased by the
Holder. The Holder shall for all purposes be deemed to become the holder of
record of such shares of Common Stock on the date on which this Warrant is
surrendered and payment of the Purchase Price is made, irrespective of the date
of delivery of the certificate or certificates representing the Common Stock;
provided that if the date on which such surrender and payment is made is not a
business day, such person shall be deemed to become the holder of record of such
shares of Common Stock on the next succeeding business day.
3. Covenants as to Common Stock
The Company covenants and agrees that the shares of Common Stock
issuable pursuant to the terms of this Warrant will, upon their issuance, be
validly issued and outstanding, fully paid and nonassessable. The Company
further covenants and agrees that it will take all such corporate actions that
may be necessary to provide for the exercise of the rights represented by this
Warrant.
4. Adjustments to Warrant
4.1 Equity Adjustment
If any of the following events shall occur at any time or from time to
time after the Grant Date and prior to the exercise in full or expiration of
this Warrant, the following adjustments to this Warrant shall be made:
(a) Stock Dividends. In case the holders of Common Stock
receive or become entitled to receive, without payment therefor, additional
Common Stock or other securities of the Company directly or indirectly
convertible into or exchangeable for Common Stock by way of dividend, upon the
exercise of this Warrant the Holder shall be entitled to receive, without
additional cost, in addition to the shares of Common Stock to which the Holder
is otherwise entitled upon such exercise (the "Warrant Shares"), the amount of
such other or additional securities of the Company that the Holder would have
held on the Exercise Date, had it been the holder of record of the Warrant
Shares on the Grant Date, and had it thereafter, during the period from the
Grant Date to and including the Exercise Date, retained such Warrant Shares
and/or all other additional securities receivable by it as aforesaid during such
period, giving effect to all adjustments called for during such period by this
Section 4.1.
(b) Stock Splits. In case the Company subdivides its
outstanding shares of Common Stock into a greater number of shares, the Exercise
Price in effect immediately prior to such subdivision shall thereupon be
proportionately reduced and the number of shares receivable upon exercise of the
Warrant shall thereupon be proportionately increased. Conversely, in case the
Company combines the outstanding number of shares of Common Stock into a smaller
number of shares, the Exercise Price in effect immediately prior to such
combination shall thereupon be proportionately increased and the number of
shares receivable upon exercise of the Warrant shall thereupon be
proportionately decreased.
(c) Merger or Consolidation. In case of any merger,
consolidation or reorganization of the Company with or into one or more other
corporations, other than a merger, consolidation or reorganization described in
Section 5 hereof, as a result of which holders of Common Stock receive other
stock, securities or property in lieu of or in addition to, but on account of,
their Common Stock, the Holder, upon the exercise of the Warrant after the
record date for determination of shareholders entitled thereto, shall receive,
in lieu of or in addition to any shares of Common Stock, the proportionate share
of all stock, or other securities (appropriately adjusted for any subsequent
events of the issuer of such stock or securities that are of the kind that would
cause adjustment of the Exercise Price hereunder) or other property issued, paid
or delivered for or on all of the Common Stock, as would have been allowable to
the shares of Common Stock so purchased under this Warrant had this Warrant been
exercised immediately prior to such record date.
4.2 Notice of Adjustment
Whenever events occur requiring this Warrant to be adjusted pursuant to
Section 4.1 above, the Company shall promptly provide Holder with written notice
of such adjustment, setting forth in reasonable detail the acts requiring such
adjustment, and stating such other facts as shall be necessary to show the
manner and figures used to compute such adjustment.
5. Early Termination Upon Certain Transactions
This Warrant shall terminate and be of no further force or effect upon
(a) the consummation of a consolidation, merger or reorganization of the Company
with or into another corporation as a result of which the shareholders of the
Company before the transaction hold less than 50% of the voting equity
securities of the surviving corporation or (b) the sale of all or substantially
all of the assets of the Company; provided, that the Holder shall be given 30
days advance notice of any such transaction.
6. No Shareholder Rights
This Warrant shall not entitle the Holder to any voting rights or any
other rights as a shareholder of the Company or to any other rights whatsoever
except the rights stated herein; and no dividend or interest shall be payable or
shall accrue in respect of this Warrant or the Common Stock issuable upon
exercise of this Warrant, except as provided in Section 4 hereof, until and to
the extent that this Warrant shall be exercised.
7. Reliance on Certain Documents
In the performance of its obligations hereunder, the Company shall be
entitled to rely upon any document or instrument signed before a notary public
and believed by it in good faith to be genuine and signed by the Holder or an
authorized officer or agent thereof, including, but not limited to, any document
or instrument of the Holder purporting to transfer or assign its rights
hereunder to any other person. The Company shall be indemnified and held
harmless by the Holder from and against any and all reasonable expenses,
including reasonable attorneys' fees and disbursements incurred, or losses
suffered, by the Company in connection with its reliance on any such document or
instrument.
8. Restrictions on Transfer
Holder acknowledges that this Warrant and the Common Stock issuable
upon exercise hereof have not been registered under the 1933 Act or the
securities laws of any other jurisdiction and that, accordingly, they may not be
sold, offered for sale, pledged or hypothecated in the absence of (a) a
registration statement in effect with respect to the securities under the 1933
Act (or its equivalent under the laws of any applicable jurisdiction other than
the United States) or (b) under certain circumstances, an opinion of counsel
satisfactory to the Company that such transaction will not be in violation of
applicable securities laws. Holder further acknowledges that a legend setting
forth or referring to the above restrictions shall be placed on this Warrant,
any replacement hereof or any certificate representing the Common Stock issuable
upon exercise hereof, and a stop transfer restriction or order shall be placed
on the books of the Company and with any transfer agent until such securities
may be legally sold or otherwise transferred.
9. Construction
The validity and interpretation of the terms and provisions of this
Warrant shall be governed by the laws of the State of Washington. The
descriptive headings of the several sections of this Warrant are inserted for
convenience only and shall not control or affect the meaning or construction of
any of the provisions thereof.
10. Exchange of Warrant
This Warrant is exchangeable upon the surrender hereof by the Holder at
the office of the Company for new Warrants of like tenor representing in the
aggregate the rights to subscribe for and purchase the number of shares which
may be subscribed for and purchased hereunder, each of such new Warrants to
represent the right to subscribe for and purchase such number of shares as shall
be designated by the Holder at the time of such surrender.
11. Lost Warrant
If this Warrant is lost, stolen, mutilated or destroyed, the Company
shall issue a new Warrant of like denomination, tenor and date as this Warrant,
subject to the Company's right to require the Holder to give the Company a bond
or other satisfactory security sufficient to indemnify the Company against any
claim that may be made against it (including any expense or liability) on
account of the alleged loss, theft, mutilation or destruction of this Warrant or
the issuance of such new Warrant.
12. Binding Effect; No Assignment
This Warrant shall be binding upon and inure to the benefit of the
Company and the Holder and their respective successors and assigns. Except as
expressly provided in this Warrant, neither this Warrant nor the rights or
obligations of any party hereto shall be assignable, other than by operation of
law or with the written consent of the Company or the Holder, as applicable.
Nothing contained in this Warrant, express or implied, is intended to confer
upon any person other than the Company and the Holder and their respective
permitted assigns any rights or remedies of any nature whatsoever by reason of
this Warrant.
13. Waivers and Amendments
This Warrant or any provision hereof may be changed, waived, discharged
or terminated only by a statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought.
14. Notices
Any notice or other communication required or permitted to be given or
effected hereunder shall be in writing and delivered by personal delivery,
facsimile delivery or reputable express courier service, and shall be deemed
effective upon receipt by the party to be notified at the following respective
addresses, or at such other address as may be designated by written notice.
If to the Company: If to Holder:
Applied Voice Technologies address
00000 X.X. 000xx Xxx
P.O. Box 97025
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. XxXxxxx
with a copy to: with a copy to:
Xxxxxxx Coie Xxxxxx & Xxxxxx
0000 Xxxxx Xxxxxx, 00xx Floor A Professional Corporation
Xxxxxxx, XX 00000 000 X. 0xx Xxxxxx, 0xx Xxxxx
Attention: Xxxxx X. Xxxxxxxxxx Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
[This space intentionally left blank.]
IN WITNESS WHEREOF, the Company has executed this Warrant as of the
date first written above.
APPLIED VOICE TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. XxXxxxx
ELECTION TO PURCHASE
To ____________________:
The undersigned hereby irrevocably elects to purchase ___________
shares of Common Stock issuable upon the exercise of the within Warrant, and
requests that certificates for such shares shall be issued in the name of and
delivered to the address of the undersigned, at the address stated below and, if
said number of shares shall not be all the shares which may be purchased
pursuant to the within Warrant, that a new Warrant evidencing the right to
purchase the balance of such shares be registered in the name of, and delivered
to, the undersigned at the address stated below.
(check one)
Payment enclosed in the amount of $_______________.
Payment in the amount of $_______________ has been made by
wire transfer.
Dated: _____________________
Name of holder of Warrant:
(please print)
Address:
Signature:
