EXHIBIT 3.5
VALCOM, INC.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK AND VACM WARRANTS
--------------------------------------------------------------------
JUNE 18, 2002 12,500
------------- -----------------
(No. of Warrants)
FOR VALUE RECEIVED, ValCom, Inc. ("Company"), hereby certifies that
Bathgate Capital Partners LLC, or a permitted assign thereof, is entitled to
purchase from the Company, at any time or from time to time, commencing the date
hereof and prior to 5:00 P.M., New York City time, on June 18, 2007, 12,500
fully paid and nonassessable units (the "VACM Units") for an aggregate purchase
price of ten thousand dollars ($10,000) (computed on the basis of $0.80/unit).
Each VACM Unit is comprised of one share of VACM common stock ("Common Stock")
plus one (1) warrant to purchase one share of VACM common stock at $0.80 per
share. (Hereinafter, (i) the VACM common stock comprising the VACM Units,
together with any other equity securities which may be issued by the Company
with respect thereto or in substitution therefor, is referred to as the "VACM
Warrants Shares," (ii) the warrants comprising the Units purchasable hereunder
or under any other Warrant (as hereinafter defined) are referred to as the "VACM
Warrants," the aggregate purchase price payable hereunder for the VACM Units is
referred to as the "Aggregate Unit Warrant Price," (iv) one Unit Warrant shall
be surrendered for each share of Common Stock and for each VACM Warrant
purchased hereunder, (v) the price payable hereunder for each of the VACM Units
is referred to as the "Per Unit Warrant Price," (vi) this Unit Warrant and all
identical warrants (if any) issued on the date hereof and all warrants hereafter
issued in exchange or substitution for this Unit Warrant or such other warrants
are referred to as the "Unit Warrants" and (vii) the holder of this Unit Warrant
is referred to as the "Holder" and the holder of this Unit Warrant and all other
Unit Warrants are referred to as the "Holders"). The Aggregate Unit Warrant
Price is not subject to adjustment. The Per Unit Warrant Price is subject to
adjustment as hereinafter provided; in the event of any such adjustment, the
number of VACM Units shall be adjusted by dividing the Aggregate Unit Warrant
Price by the Per Unit Warrant Price in effect immediately after such adjustment.
1. DESCRIPTION OF THE VACM UNITS
Each Unit Warrant entitles the Holder thereof to acquire a unit
consisting of one share of the Company's no par value Common Stock and one (1)
warrant to acquire an additional share of the Company's no par Common Stock at a
Purchase Price of $0.80 per warrant ("VACM Warrant") (12,500 total VACM
Warrants). The VACM Warrant is the same warrant issued by the Company as part of
its Financing Agreement dated June 6, 2002. Each VACM Warrant may be exercised
at any time commencing immediately and until June 18, 2007 at 5:00 p.m. New York
City time (the "Expiration Date").
2. EXERCISE OF UNIT WARRANT.
------------------------
a) EXERCISE FOR CASH
This Unit Warrant may be exercised, in whole at any time or in
part from time to time, commencing on the date hereof and prior to 5:00 P.M.,
New York City time, on June 18, 2007, by the Holder by the surrender of this
Unit Warrant (with the subscription form at the end hereof duly executed) at the
address set forth in Section 10 hereof, together with proper payment of the
Aggregate Unit Warrant Price, or the proportionate part thereof if this Unit
Warrant is exercised in part. A Holder may simultaneously exercise this Unit
Warrant and the underlying VACM Warrants) by paying an exercise price of $0.80
per Unit Warrant exercised. Payment shall be made by wire, or check payable to
the order of the Company. If this Unit Warrant is exercised in part, this Unit
Warrant must be exercised for a whole number of VACM Units, and the Holder is
entitled to receive a new Unit Warrant covering the VACM Units which have not
been exercised and setting forth the proportionate part of the Aggregate Unit
Warrant Price applicable to such VACM Units. Upon such surrender of this Unit
Warrant the Company will (a) issue a certificate or certificates in the name of
the Holder for the largest number of whole shares of the VACM Common Stock to
which the Holder shall be entitled and a certificate or certificates for the
number of VACM Warrants to which the Holder shall be entitled and, if this
Warrant is exercised in whole, in lieu of any fractional share of the Common
Stock to which the Holder shall be entitled, pay to the Holder cash in an amount
equal to the fair value of such fractional share (determined in such reasonable
manner as the Board of Directors of the Company shall determine), and (b)
deliver the other securities and properties receivable upon the exercise of this
Unit Warrant, or the proportionate part thereof if this Unit Warrant is
exercised in part, pursuant to the provisions of this Unit Warrant.
b) CASHLESS EXERCISE
If at any time the VACM Warrants Shares have not been registered for
resale under the Securities Act of 1933 with a current prospectus available, in
lieu of exercising this Unit Warrant and the VACM Warrants in the manner set
forth in Subsection l(a) above, the Unit Warrant may be exercised by surrender
of the Unit Warrant without payment of any other consideration, commission or
remuneration, by execution of the cashless exercise subscription form (at the
end hereof, duly executed). The number of shares to be issued in exchange for
the Unit Warrant will be computed by subtracting the Unit Warrant Exercise Price
from the closing bid price of the Common Stock on the date of receipt of the
cashless exercise subscription form, multiplying that amount by the number of
shares being exercised pursuant to the Unit Warrant, and dividing by the closing
bid price as of the same date.
c) OWNERSHIP LIMITATION
No Holders of Unit Warrants shall be permitted to exercise any Unit
Warrants to the extent that such exercise would cause any Holder to be the
beneficial owner of more than 5% of the then outstanding Common Stock, at that
given time. This limitation shall not be deemed to prevent any Holder from
acquiring an aggregate of more than 5% of the Common Stock, so long as such
Holder does not beneficially own more than 5% of the Common Stock, at any given
time.
3. RESERVATION OF VACM WARRANTS SHARES.
-----------------------------------
The Company agrees that, prior to the expiration of this Unit Warrant,
the Company will at all times have authorized and in reserve, and will keep
available, solely for issuance or delivery upon the exercise of this Unit
Warrant, the shares of the Common Stock and other securities and properties as
from time to time shall be receivable upon the exercise of this Warrant, free
and clear of all restrictions on sale or transfer (except for applicable state
or federal securities law restrictions) and free and clear of all pre-emptive
rights.
2
4. PROTECTION AGAINST DILUTION.
---------------------------
a) If, at any time or from time to time after the date of this Unit
Warrant, the Company shall issue or distribute (for no consideration) to the
holders of shares of Common Stock evidences of its indebtedness, any other
securities of the Company or any cash, property or other assets (excluding a
subdivision, combination or reclassification, or dividend or distribution
payable in shares of Common Stock, referred to in Subsection 4(b), and also
excluding cash dividends or cash distributions paid out of net profits legally
available therefor if the full amount thereof, together with the value of other
dividends and distributions made substantially concurrently therewith or
pursuant to a plan which includes payment thereof, is equivalent to not more
than 5% of the Company's net worth) (any such nonexcluded event being herein
called a "Special Dividend"), the Per Unit Warrant Price shall be adjusted by
multiplying the Per Unit Warrant Price then in effect by a fraction, the
numerator of which shall be the then current market price of the Common Stock
(defined as the average for the twenty consecutive trading days immediately
prior to the record date of the daily 4:00 PM closing bid price of the Common
Stock as reported by the NASDAQ system) less the fair market value (as
determined by the Company's Board of Directors) of the evidences of
indebtedness, securities or property, or other assets issued or distributed in
such Special Dividend applicable to one share of Common Stock and the
denominator of which shall be such then current market price per share of Common
Stock. An adjustment made pursuant to this Subsection 4(a) shall become
effective immediately after the record date of any such Special Dividend.
b) In case the Company shall hereafter (i) pay a dividend or make a
distribution on its capital stock in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
or (iv) issue by reclassification of its Common Stock any shares of capital
stock of the Company, the Per Unit Warrant Price shall be adjusted so that the
Holder of any Unit Warrant upon the exercise hereof shall be entitled to receive
the number of shares of Common Stock or other capital stock of the Company which
he would have owned had he exercised the warrants immediately prior thereto. An
adjustment made pursuant to this Subsection 4(b) shall become effective
immediately after the record date in the case of a dividend or distribution, and
shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an adjustment
made pursuant to this Subsection 4(b), the Holder of any Unit Warrant thereafter
surrendered for exercise shall become entitled to receive shares of two or more
classes of capital stock or shares of Common Stock and other capital stock of
the Company, the Board of Directors (whose determination shall be described in a
written notice to the Holder of any Unit Warrant promptly after such adjustment)
shall determine the allocation of the adjusted Per Unit Warrant Price between or
among shares of such classes or capital stock or shares of Common Stock and
other capital stock.
c) In case of any capital reorganization or reclassification, or any
consolidation or merger to which the Company is a party other than a merger or
consolidation in which the Company is the continuing corporation, or in case of
any sale or conveyance to another entity of the property of the Company as an
entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), the Holder
of this Unit Warrant shall have the right thereafter to receive upon exercise of
3
such Unit Warrant into the kind and amount of securities, cash or other property
which he would have owned or have been entitled to receive immediately after
such reorganization, reclassification, consolidation, merger, statutory
exchange, sale or conveyance had this Unit Warrant been exercised immediately
prior to the effective date of such reorganization, reclassification,
consolidation, merger, statutory exchange, sale or conveyance and in any such
case, if necessary, appropriate adjustment shall be made in the application of
the provisions set forth in this Section 4 with respect to the rights and
interests thereafter of the Holder of this Unit Warrant to the end that the
provisions set forth in this Section 4 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or be, in relation to any shares of stock or other
securities or property thereafter deliverable on the conversion of this Unit
Warrant. The above provisions of this Subsection 4(c) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers,
statutory exchanges, sales or conveyances. The issuer of any shares of stock or
other securities or property thereafter deliverable on the conversion of this
Unit Warrant shall be responsible for all of the agreements and obligations of
the Company hereunder. Notice of any such reorganization, reclassification,
consolidation, merger, statutory exchange, sale or conveyance and of said
provisions so proposed to be made, shall be mailed to the Holders of the Unit
Warrants not less than 20 days prior to such event. A sale of all or
substantially all of the assets of the Company for a consideration consisting
primarily of securities shall be deemed a consolidation or merger for the
foregoing purposes.
d) No adjustment in the Per Unit Warrant Price shall be required unless
such adjustment would require an increase or decrease of at least $0.01 per
share of Common Stock; PROVIDED, HOWEVER, that any adjustments which by reason
of this Subsection 4(f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; PROVIDED FURTHER, however, that
adjustments shall be required and made in accordance with the provisions of this
Section 4 (other than this Subsection 4(f)) not later than such time as may be
required in order to preserve the tax-free nature of a distribution to the
Holder of this Unit Warrant or Common Stock issuable upon exercise hereof. All
calculations under this Section 4 shall be made to the nearest cent. Anything in
this Section 4 to the contrary notwithstanding, the Company shall be entitled to
make such reductions in the Per Unit Warrant Price, in addition to those
required by this Section 4, as it in its discretion shall deem to be advisable
in order that any stock dividend, subdivision of shares or distribution of
rights to purchase stock or securities convertible or exchangeable for stock
hereafter made by the Company to its shareholders shall not be taxable.
e) Whenever the Per Unit Warrant Price is adjusted as provided in this
Section 4 and upon any modification of the rights of a Holder of Unit Warrants
in accordance with this Section 4, the Company shall promptly obtain, at its
expense, a certificate of a firm of independent public accountants of recognized
standing selected by the Board of Directors (who may be the regular auditors of
the Company) setting forth the Per Unit Warrant Price and the number of VACM
Warrants Shares after such adjustment or the effect of such modification, a
brief statement of the facts requiring such adjustment or modification and the
manner of computing the same and cause copies of such certificate to be mailed
to the Holders of the Unit Warrants.
f) If the Board of Directors of the Company shall declare any dividend
or other distribution with respect to the Common Stock, other than a cash
distribution out of earned surplus, the Company shall mail notice thereof to the
Holders of the Unit Warrants not less than 20 days prior to the record date
fixed for determining shareholders entitled to participate in such dividend or
other distribution.
4
5. FULLY PAID STOCK, TAXES.
------------------------
The Company agrees that the shares of the Common Stock represented by
each and every certificate for VACM Warrants Shares delivered on the exercise of
this Unit Warrant shall, at the time of such delivery, be validly issued and
outstanding, fully paid and nonassessable, and not subject to pre-emptive
rights, and the Company will take all such actions as may be necessary to assure
that the par value or stated value, if any, per share of the Common Stock is at
all times equal to or less than the then Per Unit Warrant Price. The Company
further covenants and agrees that it will pay, when due and payable, any and all
Federal and state stamp, original issue or similar taxes which may be payable in
respect of the issue of any VACM Warrant Share or certificate therefor.
6. REGISTRATION RIGHTS
-------------------
The Company shall maintain the registration this Unit Warrant and the
VACM Warrants Shares until the earlier of (i) exercise in full of the Unit
Warrant; or (ii) expiration of the Unit Warrant.
7. TRANSFERABILITY.
---------------
The Company may treat the registered Holder of this Unit Warrant as he
or it appears on the Company's books at any time as the Holder for all purposes.
The Company shall permit any Holder of a Unit Warrant or his duly authorized
attorney, upon written request during ordinary business hours, to inspect and
copy or make extracts from its books showing the registered holders of Unit
Warrants. All warrants issued upon the transfer or assignment of this Unit
Warrant will be dated the same date as this Unit Warrant, and all rights of the
Holder thereof shall be identical to those of the Holder.
8. LOSS, ETC., OF UNIT WARRANT.
---------------------------
Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Unit Warrant, and of indemnity
reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon
surrender and cancellation of this Unit Warrant, if mutilated, the Company shall
execute and deliver to the Holder a new Unit Warrant of like date, tenor and
denomination.
9. UNIT WARRANT HOLDERS NOT SHAREHOLDERS.
-------------------------------------
Except as otherwise provided herein, this Unit Warrant does not confer
upon the Holder any right to vote or to consent to or receive notice as a
shareholder of the Company, as such, in respect of any matters whatsoever, or
any other rights or liabilities as a shareholder, prior to the exercise hereof;
provide, however, Company shall give not less than twenty days written notice to
the Holder of any action which would required adjustment of any terms of the
Unit Warrant in accordance with Section 4 above.
5
10. COMMUNICATION.
-------------
Any notice or other communication under this Unit Warrant shall be
effective unless and shall be deemed to have been given if, the same is in
writing and is mailed by first-class mail, postage prepaid, or sent vial
facsimile, electronic transmission, overnight courier or hand delivery addressed
to:
If to the Company:
ValCom, Inc.
00000 Xxxxxx Xxxx
#0
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx, President & CEO
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Holder:
Bathgate Capital Partners LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxx X.X. Xxxxxx, Manager and CFO/CCO
Fax: (000) 000-0000
Tel: (000) 000-0000
xxxxx@xxxxxxxxxxxxxxxx.xxx
11. HEADINGS.
--------
The headings of this Unit Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
12. APPLICABLE LAW.
--------------
This Unit Warrant shall be governed by and construed in
accordance with the law of the state of Nevada without giving effect to the
principles of conflicts of law thereof.
IN WITNESS WHEREOF, ValCom, Inc. has caused this Unit Warrant to be
signed by its President and Chief Executive Officer as of the date set forth
above.
---------------------------------
Xxxxx Xxxxxxxxxx, President & CEO
6
SUBSCRIPTION
The undersigned, _____________________, pursuant to the provisions of the
foregoing Unit Warrant, hereby agrees to subscribe for and purchase shares of
the Common Stock and VACM Warrants of ValCom, Inc. covered by said Unit Warrant,
and makes payment therefor in full at the Per Unit Warrant provided by said Unit
Warrant.
Dated: Signature:
Address:
ASSIGNMENT
FOR VALUE RECEIVED___________________ hereby sells, assigns and transfers unto
____________ the foregoing Unit Warrant and all rights evidenced thereby, and
does irrevocably constitute and appoint _______________________, attorney, to
transfer said Unit Warrant on the books of ________________
Dated: Signature:
Address:
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED ____________________hereby assigns and transfers
unto ____________________ the right to purchase ______________ shares of the
Common Stock and VACM Warrants by the foregoing Unit Warrant, and a
proportionate part of said Unit Warrant and the rights evidenced hereby, and
does irrevocably constitute and appoint ____________________, attorney, to
transfer that part of said Unit Warrant on the books of ValCom, Inc.
Dated: Signature:
Address:
7
CASHLESS EXERCISE SUBSCRIPTION
------------------------------
The undersigned _______________________ pursuant to the provisions of
the foregoing Unit Warrant, hereby agrees to subscribe to that number of shares
of stock of ValCom, Inc. as are issuable in accordance with the formula set
forth in Section l(b) of the Unit Warrant, and makes payment therefore in full
by surrender and delivery of this Unit Warrant.
Dated: Signature:
Address:
8
