PAC-WEST TELECOMM, INC. WARRANT TO PURCHASE SHARES OF COMMON STOCK
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY STATE SECURITIES LAWS. THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN OR WILL BE ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OF RESALE, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM. |
PAC-WEST TELECOMM, INC.
WARRANT TO PURCHASE SHARES
OF COMMON STOCK
Date of Issuance: December 19, 2003 | Certificate No. W- |
THIS CERTIFIES THAT, for value received, Deutsche Bank AG – London acting through DB Advisors, LLC as investment advisor (the “Purchaser”) and its permitted assigns are entitled to subscribe for and purchase 26,666,667 shares of duly authorized, validly issued, fully paid and nonassessable Common Stock (as adjusted pursuant to Section 6 hereof, the “Shares”) of PAC-WEST TELECOMM, INC., a California corporation (the “Company”), at the price of $1.50 per share (such price and such other price as shall result, from time to time, from the adjustments specified in Section 6 hereof is herein referred to as the “Exercise Price”), subject to the provisions and upon the terms and conditions hereinafter set forth. As used herein the term “Date of Grant” shall mean December 19, 2003. The term “Warrant” as used herein shall be deemed to include any warrants issued upon transfer or partial exercise of this Warrant unless the context clearly requires otherwise. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Note and Warrant Purchase Agreement dated as of October 17, 2003 between the Company and the Purchaser (the “Purchase Agreement”).
(a) Purchaser’s Option. At any time prior to December 19, 2006, the Purchaser may, at its option, extend both the Expiration Date and the Principal Payment Date to any coterminous date prior to and including June 19, 2008; provided, however, that the Purchaser may exercise this option only once and only with regard to that number of Warrants and that portion of the Note held by the Purchaser or its Affiliates (but not with respect to Warrants held by any other successor or assign of the Purchaser) at the time the Purchaser exercises such option.
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together with any cash in lieu of fractional Shares, by surrender of this Warrant at the principal office of the Company together with an executed Notice of Exercise or Exchange in substantially the form attached hereto as Exhibit A-1 or Exhibit A-2. For the purposes of clarity, it is understood that the failure of the holder hereof to elect a cashless exercise of this Warrant pursuant to clause (i) above or the failure of the Company to require the cashless exercise of this Warrant pursuant to clause (ii) above shall result in an exercise being effected in accordance with the procedures identified in Section 2(a) above. In such event, the number of Shares that the Company shall issue to the holder hereof shall be computed using the following formula:
Y (A – B) | ||
X = |
|
|
A |
Where: | X = | The adjusted number of Shares to be issued to the Holder as a result of the cashless exchange election under this Section 2(b); | ||
Y = | The number of Shares in respect of which the cashless exchange election under this Section 2(b) is made; | |||
A = | The Fair Market Value of one Share at the time the cashless exchange election is made; and | |||
B = | The Exercise Price. |
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(a) Xxxx-Xxxxx-Xxxxxx. If any filing or notification becomes necessary pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), based upon the planned exercise of this Warrant or any portion hereof, the holder hereof shall notify the Company of such requirement, and the holder and the Company shall file with the proper authorities all forms and other documents necessary to be filed pursuant to the HSR Act, as promptly as possible and shall cooperate with each other in promptly producing such additional information as those authorities may reasonably require to allow early termination of the notice period provided by the HSR Act or as otherwise necessary to comply with requirements of the Federal Trade Commission or the Department of Justice. The holder and the Company agree to cooperate with each other in connection with such filings and notifications, and to keep each other informed of the status of the proceedings and communications with the relevant authorities. The holder shall pay any filing fee required to be paid in connection with a filing pursuant to the HSR Act required as a result of the exercise of Warrants. Notwithstanding the preceding sentence, the Company shall pay one such filing fee required to be paid in connection with a filing pursuant to the HSR Act required as a result of the exercise of Warrants held by the Purchaser or its Affiliates (but not other successors or assigns of the Purchaser). The holder and the Company shall each bear its own expenses (other than such filing fees) incurred in connection with any filing required pursuant to the HSR Act. Each holder by acceptance of this Warrant or any portion hereof agrees to comply with the provisions of this Section 5(a).
(a) Subdivisions, Combinations and Other Issuances. Prior to the exercise or expiration of this Warrant, if the Company shall: (i) subdivide its outstanding shares of Common Stock into a larger number of shares of Common Stock by stock split or otherwise, (ii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock by reverse stock split or otherwise or (iii) issue additional shares of Common Stock or other capital stock as a dividend or distribution on or with respect to its Common Stock, the Exercise Price in effect prior to such subdivision, combination or issuance shall forthwith be proportionately decreased in the case of a subdivision or stock dividend or distribution, or proportionately increased in the case of a combination and the number of Shares issuable upon exercise of the Warrant in effect prior to such
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subdivision, combination or issuance shall forthwith be proportionately increased in the case of a subdivision, stock dividend or distribution, or proportionately decreased in the case of a combination. Any adjustment under this Section 6(a) shall become effective at the close of business on the date the subdivision, combination or reclassification becomes effective, or as of the record date of such dividend or distribution, or in the event that no record date is fixed, upon the making of such dividend or distribution.
(b) Reclassification, Reorganization, Consolidation, etc. In the event of any corporate reclassification, capital reorganization, consolidation, spin-off, merger, transfer of all or a substantial portion of the Company’s properties or assets or any dissolution, liquidation or winding up of the Company (other than as a result of a subdivision, combination, dividend or distribution provided for in Section 6(a) above) (a “Corporate Transaction”), then, as a condition of such event, provision shall be made, and duly executed documents evidencing the same from the Company and any surviving or acquiring Person (the “Successor Company”) shall be delivered to the holder hereof, so that the holder shall have the right to receive upon exercise of this Warrant the same number of shares of Common Stock and amount of cash and other property that such holder would have been entitled to receive upon such Corporate Transaction had this Warrant been exercised immediately prior to the effective date of such Corporate Transaction. The Company shall provide that any Successor Company in such Corporate Transaction shall enter into an agreement with the Company confirming the holder’s rights pursuant to this Warrant, assuming the Company’s obligations under this Warrant, jointly and severally with the Company if the Company shall survive such Corporate Transaction, and providing after the date of such Corporate Transaction for adjustments, which shall be as nearly equivalent as possible to the adjustments provided for in this Section 6. The provisions of this Section 6(b) shall apply similarly to successive Corporate Transactions involving any Successor Company. In the event of a Corporate Transaction in which consideration payable to holders of Common Stock is payable solely in cash, then the holder shall be entitled to receive in exchange for this Warrant cash in an amount equal to the amount such holder would have received had the holder exercised this Warrant immediately prior to such Corporate Transaction, less the aggregate Exercise Price for this Warrant then in effect. In case of any Corporate Transaction described in the immediately preceding sentence of this Section 6(b), the Company or any Successor Company, as the case may be, shall make available any funds necessary to pay to the holder the amount to which the holder is entitled as described above in the same manner and at the same time as holders of Common Stock would be entitled to such funds.
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provided, however, that if at such time or as a result of such adjustment the Exercise Price for any Warrant is or would be, as the case may be, equal to or less than $.001 per share, then in lieu of the adjustment of the Exercise Price the number of Shares purchasable upon exercise of this Warrant shall be increased to a number determined by multiplying the previously applicable number of Shares purchasable upon exercise of this Warrant by a fraction, (A) the numerator of which shall be the sum of (i) the number of shares of Common Stock outstanding immediately prior to such issuance or sale, plus (ii) the number of Additional Shares of Common Stock issued or sold or deemed to be issued or sold, and (B) the denominator of which shall be the sum of (x) the number of shares of Common Stock outstanding immediately prior to such issuance or sale, plus (y) the number of shares of Common Stock which the aggregate consideration received by the Company for the Additional Shares of Common Stock so issued or sold or deemed to be issued or sold would purchase at the previously applicable Exercise Price.
(d) Options and Convertible Securities.
(i) In the event that the Company at any time or from time to time issues, sells, grants or assumes, or fixes a record date for the determination of holders of any class of securities entitled to receive, any Options or Convertible Securities, other than Excluded Stock, then, and in each such case, the number of shares of Common Stock at any time issuable upon the exercise of such Options and/or the conversion or exchange of such Convertible Securities, as the case may be, shall be deemed to be Additional Shares of Common Stock issued as of the close of business on the date of the earliest of such issuance, sale, grant, assumption or record date.
(ii) If any Options or Convertible Securities provide, with the passage of time or otherwise, for any decrease or increase, as the case may be, in (A) the consideration payable to the Company or for which such Options or Convertible Securities are exercisable, convertible or exchangeable, or (B) the number of Additional Shares of Common Stock issuable upon the exercise and/or conversion or exchange thereof, then the Exercise Price for this Warrant shall be adjusted upon any such decrease or increase becoming effective to reflect such decrease or increase insofar as it affects any such Options or Convertible Securities which are outstanding at such time, as if such Options or Convertible Securities included such terms as adjusted upon their original issuance, sale, grant, assumption or record date, as the case may be; provided, however, that no adjustments relating to any Options or Convertible Securities pursuant to this subsection, individually or in the aggregate, shall increase the Exercise Price for this Warrant by more than all previous reductions in the Exercise Price for such Warrant relating to the same Options or Convertible Securities.
(iii) In any case in which Additional Shares of Common Stock are deemed to be issued, sold, granted or assumed, no further adjustment of the Exercise Price shall be made upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consequent issue or sale of Convertible Securities or shares of Common Stock.
(iv) Upon (x) the expiration, or the repurchase and cancellation or retirement by the Company, of any Options which have not been exercised, or (y) the expiration of any rights of conversion or exchange under any Convertible Securities which have not been exercised, or the repurchase and cancellation or retirement by the Company of any such Convertible Securities the rights of conversion or exchange of which have not been exercised, any adjustments to
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the Exercise Price computed upon the original issuance, sale, grant, assumption or record date, and upon any subsequent adjustments to such Options or Convertible Securities, shall, effective as of such expiration, cancellation or retirement, as the case may be, be recomputed as if: (i) the only Additional Shares of Common Stock (including, without limitation, pursuant to the issuance or sale of Options or Convertible Securities) issued or sold were the Additional Shares of Common Stock (including, without limitation, pursuant to the issuance or sale of Options or Convertible Securities), if any, actually issued or sold upon the exercise of such Options or upon the conversion or exchange of such Convertible Securities; (ii) in the case of Options, the consideration received therefor was the consideration actually received by the Company for the issuance, sale, grant or assumption of such Options, whether or not exercised, plus the consideration actually received by the Company upon such exercise, plus, in the case of Options for Convertible Securities, any additional consideration deemed to be received by the Company upon the issuance of such Convertible Securities for which Options were exercised; and (iii) in the case of Convertible Securities, the consideration received therefor was the consideration actually received by the Company for the issuance, sale, grant or assumption of such Convertible Securities which were actually converted or exchanged, plus the additional consideration, if any, actually received by the Company upon such conversion or exchange; provided, however, that no adjustments relating to any Options or Convertible Securities pursuant to this subsection, individually or in the aggregate, shall increase the Exercise Price by more than all previous reductions in the Exercise Price relating to the same Options or Convertible Securities.
(i) For purposes of this Section 6, the consideration for the issuance, sale, grant or assumption of any Additional Shares of Common Stock, irrespective of the accounting treatment of such consideration, shall equal:
(1) insofar as it consists of cash, the amount of cash paid in consideration for the issuance, sale, grant or assumption of such Additional Shares of Common Stock, without giving effect to customary expenses, commissions or other compensation paid by the Company and customary concessions or discounts allowed by the Company to underwriters, dealers or others performing similar services in connection with any such issuance, sale, grant or assumption;
(2) insofar as it consists of property (including, without limitation, securities) other than cash actually received by the Company as direct consideration for the issuance, sale, grant or assumption or such Additional Shares of Common Stock, the Fair Market Value thereof at the time of such issuance, sale, grant or assumption;
(3) insofar as it consists of other property or consideration, including the provision of services to the Company, the Fair Market Value of such other property or consideration; and
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(4) in the event Additional Shares of Common Stock are issued or sold together with other securities or property for a consideration which covers both, the portion of such consideration so received, computed as provided in clauses (1), (2) and (3) above, allocable to such Additional Shares of Common Stock (as reasonably determined by the Board of Directors of the Company in good faith, as evidenced by a written board resolution delivered to the holder hereof).
(ii) Additional Shares of Common Stock deemed to have been issued, sold, granted or assumed pursuant to Section 6(d) hereof shall be deemed to have been issued, sold, granted or assumed for consideration per share equal to the quotient of: (A) the total amount of cash and other property, if any, received by the Company as direct consideration for the issuance, sale, grant or assumption of the Options or Convertible Securities in question, plus the aggregate amount of additional consideration (as set forth in the instruments relating thereto) payable to the Company upon the exercise of such Options or the conversion or exchange of such Convertible Securities or, in the case of Options for Convertible Securities, the exercise of such Options and the conversion or exchange of such Convertible Securities, divided by (B) the number of shares of Common Stock (as set forth in the instruments relating thereto) issuable upon the exercise of such Options and the conversion or exchange of such Convertible Securities.
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of shares of Common Stock as the holder would have owned had this Warrant been exercised prior to the event and had the holder continued to hold such Common Stock until after the event requiring the adjustment, but in no event shall any such adjustment have the effect of increasing the Exercise Price.
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assets, dissolution, liquidation, winding-up, any similar transaction or any other voluntary action, solely to avoid or solely to seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all terms hereunder and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holder hereof against dilution or other impairment in a manner that is consistent with the Company’s obligations hereunder. Without limiting the generality of the foregoing, the Company (a) will not permit the par value of any shares of Common Stock receivable upon the exercise of this Warrant to exceed the Exercise Price, and (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant by the holder hereof. Without limiting the generality of the foregoing, before taking any action that would cause a reduction of the Exercise Price pursuant to Section 6 hereof below the then par value (if any) of the Common Stock, the Company shall take any and all corporate action (including, without limitation, a reduction in par value) which shall be necessary to validly and legally issue fully paid and nonassessable shares of Common Stock, as the case may be, at the Exercise Price as so reduced.
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holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of capital stock or any other securities or property; or (ii) consummate any capital reorganization, reclassification, recapitalization, consolidation, merger, transfer of all or substantially all of its assets, dissolution, liquidation or winding-up, or any similar transaction; then, at least 10 days prior to the earlier of any applicable record date or such event, as the case may be, the Company shall mail to the holder hereof a notice specifying: (a) the date or expected date on which any such payment or distribution is to be made or record is to be taken and the amount and character of any such dividend, distribution or right; (b) the date or expected date on which any such reorganization, reclassification, recapitalization, consolidation, merger, transfer, dissolution, liquidation, winding-up or similar transaction is to take effect and any record date therefor; (c) the time as of which any holders of record of shares of Common Stock and/or any other class of securities shall be entitled to exchange their shares of Common Stock and/or other securities for the securities or other property deliverable upon such reorganization, reclassification, recapitalization, consolidation, merger, transfer, dissolution, liquidation, winding-up or similar transaction and a description in reasonable detail of such transaction; and (d) in each case, the expected effect on the number of Shares purchasable upon exercise of this Warrant and the Exercise Price of each such transaction or event. The Company shall update any such notice to reflect any change in the foregoing information.
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10. Compliance with Securities Act; Disposition of Warrant or Shares of Common Stock.
(a) Compliance With Securities Act. The Holder, by acceptance hereof, agrees that this Warrant, and the Shares issuable upon exercise of this Warrant, are being acquired for investment and that such Holder will not offer, sell or otherwise dispose of this Warrant, or any Shares issuable upon exercise of this Warrant, except under circumstances which will not result in a violation of the Securities Act or any applicable state securities laws. This Warrant and all Shares issued upon exercise of this Warrant (unless registered under the Securities Act and any applicable state securities laws) shall be stamped or imprinted with a legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.” |
Whenever the foregoing legend is no longer required in the opinion of counsel to the holder hereof, upon request of the holder hereof, the Company, at its sole expense (including, without limitation, the payment of any applicable issue taxes), shall issue or cause to be issued in the name of and delivered to the holder hereof or as the holder hereof may direct new Warrant Certificates of like tenor, dated the date hereof, and/or new certificates for shares of Common Stock.
(b) Transferability. Subject to compliance with applicable federal and state securities laws, the holder hereof may, without the prior written consent of the Company, transfer this Warrant, in whole or in part, at any time to any Person or Group (including any Affiliate or Permitted Transferee); provided, however, the holder hereof may not transfer, in one or more series of transactions, this Warrant, in whole or in part, without the prior written consent of the Company (i) to any Competitor or (ii) with respect to a number of shares of Common Stock issuable upon exercise of this Warrant or any portion hereof representing 10% or more of the outstanding Common Stock on a fully diluted basis to any Person or Group (other than an Affiliate or Permitted Transferee); provided, further, that with respect to clause (ii) above, the consent of the Company shall not be unreasonably withheld. Notwithstanding the foregoing, until the date that is six months after the Date of Grant, the Purchaser may not assign, in whole or in part, this Warrant to a Permitted Assignee unless such Permitted Assignee shall have agreed to be bound by Section 5.07 of the Purchase Agreement. Any transfer of this Warrant or any portion hereof shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed for transfer by delivery of an Assignment Form in substantially the form attached hereto as Exhibit B, to the Company at the address set forth in Section 16 hereof. In the event of a partial transfer of this Warrant, the Company shall issue to the holder one or more appropriate new Warrants.
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and the holder hereof shall not be entitled to any notice or other communication concerning the business or affairs of the Company, other than as specifically required by this Warrant. Nothing contained in this Warrant shall be construed as imposing any obligation on any holder to purchase any securities or as imposing any liabilities on such holder as a stockholder of the Company, whether such obligation or liabilities are asserted by the Company or by creditors of the Company or otherwise.
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To the Company: | Pac-West Telecomm, Inc. | |
1776 W. March Lane | ||
Suite 250 | ||
Stockton, CA 95207 | ||
Facsimile: (000) 000-0000 | ||
Attention: General Counsel |
“Additional Shares of Common Stock” means all shares, including treasury shares, of Common Stock, issued, sold or granted, or deemed to be issued, sold or granted pursuant to the terms hereof, by the Company after the date hereof, whether or not subsequently reacquired or retired by the Company, other than the shares of Common Stock issued upon the exercise of this Warrant.
“Affiliate” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person.
“Appraiser” means an independent nationally recognized investment bank or other qualified financial institution acceptable to the Company and the holder hereof.
“Business Day” means any day other than a Saturday or a Sunday or a day on which commercial banking institutions in New York City are authorized or required to be closed.
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“Common Stock” means the common stock of the Company, par value $0.001 per share, any capital stock into which such Common Stock shall have been changed or converted, any capital stock resulting from any reclassification of such Common Stock, and all other capital stock of any class or classes of the Company, other than preference stock, the holders of which share equally with the Common Stock in current dividends and liquidating dividends after the payment of dividends and distributions on any shares entitled to preference.
“Competitor” means any Person, firm, partnership, corporation or other entity that (i) is engaged directly or indirectly in the business of providing telecommunication services of the type (a) provided by the Company or (b) that the Company or its subsidiaries have taken significant actions to begin providing or (ii) that controls, or is under common control with, any Person, firm, partnership, corporation or other entity identified in clause (i) above.
“Convertible Securities” means any evidences of indebtedness, shares of capital stock or any other securities convertible into or exchangeable for, directly or indirectly, shares of Common Stock.
“Current Market Price” means the average of the closing prices of the Common Stock during the five-day trading period ending immediately prior to the date of determination as quoted on the Nasdaq Small Cap Market or any United States automated quotation system or national securities exchange or national market system on which the Common Stock is then quoted or traded, as applicable
“Excluded Stock” means (a) securities issued, or deemed issued (as provided below), to directors, officers, employees or consultants of the Company or a subsidiary of the Company in connection with their service as directors of the Company or a subsidiary of the Company, their employment by the Company or a subsidiary of the Company or their retention as consultants by the Company or a subsidiary of the Company under the Company’s employee benefit plans approved by the Company’s board of directors, including, without limitation, the 1999 Stock Incentive Plan, the 1998 Xxxxxxx Non-Qualified Stock Incentive Plan and the 2000 Napa Valley Non-Qualified Stock Incentive Plan (collectively, the “Plans”), as such plans may be amended from time to time with the approval of the Company’s board of directors, or under other plans, adopted or assumed by the Company with the approval of the Company’s board of directors, and (b) shares of Common Stock issued, or deemed issued (as provided below), pursuant to merger, consolidation or stock or asset acquisition approved by the Company’s board of directors.
“Fair Market Value” means (i) with respect to any share of Common Stock, including with respect to a Share for purposes of Section 2(b), the Current Market Price; provided, that, if the Common Stock is not then quoted on the Nasdaq Small Cap Market or any United States automated quotation system or national securities exchange or national market system or the OTC Bulletin Board or Pink Sheets, the fair market value shall be: (A) the value based on the most recently completed arm’s length transaction between the Company and a Person other than an affiliate of the Company within the three-month period prior to the date of determination with respect to such security, or (B) if (A) does not apply, the fair market value as reasonably determined by the Board of Directors of the Company in good faith, as evidenced by a written board resolution delivered to the holder hereof; and (ii) with respect to any other property other than cash or Common Stock, (A) the value based on the most recently completed arm’s length transaction between the Company and a Person other than
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an affiliate of the Company within the three-month period prior to the date of determination with respect to such property, or (B) if (A) does not apply, the fair market value as reasonably determined by the Board of Directors of the Company in good faith, as evidenced by a written board resolution delivered to the holder hereof. Any determination pursuant to subsections (i)(B) or (ii)(B) shall be made on the basis of an arm’s length sale of a going concern between an informed and willing buyer and an informed and willing seller, under no compulsion to buy or sell, taking into account all the relevant facts and circumstances then prevailing and without consideration of (x) the lack of an actively trading public market for the Common Stock, (y) any restrictions on the transfer of shares of Common Stock or (z) any control premium or minority discount. For the avoidance of doubt, any determination pursuant to subsections (i)(B) or (ii)(B) shall be subject to Section 6(k).
“Group” shall have the meaning given to such term in Section 13(d)(3) of Securities Exchange Act of 1934, as amended.
“Note” means the senior secured promissory note issued to the Purchaser on the date hereof pursuant to the Purchase Agreement.
“Options” means rights, options or warrants to subscribe for, purchase or otherwise acquire, directly or indirectly, shares of Common Stock, including, without limitation, Convertible Securities.
“Permitted Transferee” means any Person listed in Schedule 1 of the Purchase Agreement.
“Person” means any individual, partnership, limited liability company, unlimited liability company, corporation, association, joint stock company, trust, joint venture, unincorporated organization or any federal, state, county or municipal governmental or quasi-governmental agency, department, commission, board, bureau, instrumentality or similar entity.
“Registration Rights Agreement” means the Registration Rights Agreement entered into by the Company and the Purchaser on the date hereof.
“Securities Act” means the Securities Act of 1933 and all rules and regulations of the Securities and Exchange Commission thereunder, as amended from time to time.
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PAC-WEST TELECOMM, INC.
By: /s/ X. XXXX XXXX
Title: Chief Financial Officer
EXHIBIT A-1
NOTICE OF EXERCISE
To: PAC-WEST TELECOMM, INC. (the “Company”)
1. The undersigned hereby:
elects to purchase shares of Common Stock of the Company pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full, or elects to exercise its net issuance rights pursuant to Section 2(b) of the attached Warrant with respect to shares of Common Stock.
2. Please issue a certificate or certificates representing said shares in the name of the undersigned or in such other name or names as are specified below:
3. The undersigned represents that the aforesaid shares are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares, all except as in compliance with applicable securities laws.
B-1
EXHIBIT A-2
NOTICE OF EXERCISE
To: PAC-WEST TELECOMM, INC. (the “Company”)
1. Contingent upon and effective immediately prior to the closing (the “Closing”) of the Company’s public offering contemplated by the Registration Statement on Form S- (File No. ), which was filed with the Securities and Exchange Commission on , 20 , the undersigned hereby:
elects to purchase shares of Common Stock of the Company (or such lesser number of shares as may be sold on behalf of the undersigned at the Closing) pursuant to the terms of the attached Warrant, or elects to exercise its net issuance rights pursuant to Section 2(b) of the attached Warrant with respect to Shares of Common Stock.
2. Please deliver to the custodian for the selling shareholders a stock certificate representing such shares.
3. The undersigned has instructed the custodian for the selling shareholders to deliver to the Company $ or, if less, the net proceeds due the undersigned from the sale of shares in the aforesaid public offering. If such net proceeds are less than the purchase price for such shares, the undersigned agrees to deliver the difference to the Company prior to the Closing.
B-1
EXHIBIT B
ASSIGNMENT FORM
The undersigned hereby assigns and transfers unto (Please typewrite or print in block letters) the right to purchase Shares (as defined in the Warrant) of Pac-West Telecomm, Inc., subject to the Warrant, dated as of , granted to the undersigned (the “Warrant”).
This assignment complies with the provisions of Section 10 of the Warrant.
Date:
By:
B-1