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 Exercisustment 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 such Adelphi Warrants, upon surrender to the Company, or its duly
authorized 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 xxxx 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 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
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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 Paragraph A above) or
rights, options or warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase
shares of
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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; 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
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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.
H. Upon the expiration of any rights, options or warrants or
conversion or exchange privileges, if any thereof shall not
have been
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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.
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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 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 8(a), 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 8(a).
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(ii) If any registration pursuant to this Section
8(a) 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 e 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 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
8
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.
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
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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.
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/ Xxxx Xxxxxxxx
-----------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxx
-------------------------
ADELPHI UNIVERSITY
(Corporate Seal) By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxxxxx Xxxxxxxx
Attest:
-------------------------
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 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 Agreementeceive
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:
EDUCATIONAL VIDEO CONFERENCING, INC.
By
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(Corporate Seal)
Attest:
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Secretary
