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EXHIBIT 4.2
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES ACT, AND NEITHER THIS WARRANT NOR THE SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT CAN BE SOLD OR TRANSFERRED EXCEPT
PURSUANT TO THE REGISTRATION PROVISIONS OF SUCH ACTS OR AN EXEMPTION THEREFROM.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS DESCRIBED HEREIN.
No. B- Warrants
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VOID AFTER , 2002
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XXXXXXX COMMUNICATIONS, INC.
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received , or registered
assigns, is the owner of the number of Warrants set forth above, each of which
entitles the owner thereof to purchase, subject to the terms of this Warrant
Certificate, upon presentation and surrender of this Warrant Certificate with
the Form of Election to Purchase attached hereto duly executed, at any time
prior to the Expiration Date (as defined below), at the principal executive
offices of Xxxxxxx Communications, Inc., a Delaware corporation (the "Company")
one fully paid and nonassessable share of the Common Stock, $.01 par value
("Common Stock") of the Company at the purchase price of $10.25 per share
("Purchase Price"), payable in cash except as provided below. The Expiration
Date shall be the earlier of (a) 4:00 P.M. (St. Louis time) on ,
2002, or (b) subject to receipt of the Offering Notice (as defined below) by the
holder of this Warrant Certificate, the closing of the sale of Common Stock in a
firm commitment, underwritten public offering registered under the Securities
Act of 1933, as amended (the "Securities Act"), other than a registration
relating solely to a transaction under Rule 145 under the Securities Act (or any
successor thereto) or to an employee benefit plan of the Company, at a public
offering price (prior to underwriters' discounts and expenses) equal to or
exceeding $12.00 per share of Common Stock (as adjusted for any stock dividends,
combinations or splits with respect to the Common Stock), in which the aggregate
proceeds to the Company and/or any selling stockholders (prior to underwriters'
discounts and expenses) are at least $50,000,000 (a "Qualified Public
Offering"). The Company shall provide written notice (the "Offering Notice") to
the holder of this Warrant Certificate of the proposed closing date of a
Qualified Public Offering (the "Closing Date") not later than 10 days prior to
the actual Closing Date. Upon receipt of the Offering Notice, the holder of this
Warrant Certificate, upon surrender
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of this Warrant Certificate with the Form of Election to Purchase attached
hereto duly executed, may exercise the Warrants evidenced hereby conditioned
upon the closing of the Qualified Public Offering described in the Offering
Notice (a "Conditional Exercise"). If the Qualified Public Offering does not
close within 30 days of such proposed Closing Date, the Warrants evidenced
hereby shall remain outstanding and this Warrant Certificate shall be returned
to the holder hereof, subject to its prior expiration in accordance with clause
(a), above. If the holder of this Warrant Certificate exercises the Warrants
evidenced hereby conditioned upon the completion of a Qualified Public Offering
then, and only then, may the holder hereof pay the Purchase Price by delivering
to the Company cash and/or shares of Common Stock, shares of Preferred Stock (as
defined below) or other securities (other than the Warrants evidenced hereby)
issued by the Company having a "Market Price" (as defined in paragraph (ii)(E)
below) equal to the amount of the Purchase Price. These Warrants may be
exercised in whole, but not in part, and no fractional shares of Common Stock
will be issued upon exercise of the Warrants evidenced hereby.
The Warrants evidenced by this Warrant Certificate are part of a
series of duly authorized Warrants issued or to be issued under and pursuant to
the terms of an Agreement and Plan of Merger by and among the Company, Triangle
Acquisition, Inc. and State Communications, Inc., dated as of June 9, 2000 (the
"Merger Agreement") and are referred to hereinafter as the "$10.25 Warrants."
The Merger Agreement also provides for the issuance of additional $10.25
Warrants of like tenor (the "Additional $10.25 Warrants") and warrants to
purchase Common Stock at a purchase price of $6.00 per share (the "$6.00
Warrants"). By accepting this Warrant Certificate, the holder hereof agrees that
the exercise of the $6.00 Warrants held by the holder hereof shall be deemed to
be an exercise of the $10.25 Warrants evidenced by this Warrant Certificate and
any and all Additional $10.25 Warrants then held by the holder hereof; provided,
however, that the Company shall not be obligated to issue any of the shares of
Common Stock that may be purchased upon such deemed exercise of the $10.25
Warrants evidenced hereby and the Additional $10.25 Warrants until the holder
thereof has fully complied with the terms and conditions hereof and thereof,
including, but not limited to, the full payment of the purchase price hereunder
and thereunder prior to the Expiration Date.
The number of Warrants evidenced by this Warrant Certificate (and the
number of shares of Common Stock which may be purchased upon exercise hereof)
set forth above, and the Purchase Price set forth above, are the number and
Purchase Price as of , 2000, based on the shares of Common Stock
of the Company as constituted at such date. In order to prevent dilution of the
exercise rights granted under this Warrant, the Purchase Price shall be subject
to adjustment from time to time as follows:
(i) If and whenever on or after the original date of issuance of
this $10.25 Warrant, the Company issues or sells, or in accordance with
subparagraphs (A) or (B) of paragraph (ii) below is deemed to have issued or
sold, any shares of its Common Stock for a consideration per share less than the
Market Price of the Common Stock, then forthwith upon such issue or sale the
Purchase Price shall be reduced to the Purchase Price determined by dividing (A)
the sum of (I) the product derived by multiplying the Purchase Price in effect
immediately prior to such issue or sale times the number of shares of Common
Stock Deemed Outstanding immediately prior to such issue or sale, plus (II) the
consideration, if any, received by the Company upon such issue or sale, by (B)
the number of shares of Common Stock Deemed
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Outstanding immediately after such issue or sale; provided that there shall be
no adjustment in the Purchase Price as a result of any issuance or sale (or
deemed issuance or sale) of shares of Common Stock in any of the following
transactions: (A) upon conversion of shares of the Company's Series A Preferred
Stock, Series A-1 Preferred Stock, Series B Preferred Stock; Series C-1
Preferred Stock, Series C-2 Preferred Stock or Series C-3 Preferred Stock
(collectively, the "Preferred Stock"); (B) to officers, directors or employees
of, or consultants or advisers to, the Company pursuant to stock option or stock
purchase plans, warrants or agreements on terms from time to time approved by
the Board of Directors, including, without limitation, the TriVergent Options
(as defined in the Merger Agreement); (C) upon the issuance or exercise of the
$10.25 Warrants, the Additional $10.25 Warrants or the $6.00 Warrants; (D) in
connection with acquisitions from time to time approved by the Board of
Directors; and (E) for which adjustment of the Purchase Price is made pursuant
to paragraph (I) or paragraph (J) of clause (ii) below. Whenever the Purchase
Price is adjusted, the holder of this $10.25 Warrant shall thereafter be
entitled to purchase at the new Purchase Price the number of shares of Common
Stock obtained by multiplying the Purchase Price in effect immediately prior to
such adjustment by the number of shares of Common Stock purchasable pursuant
hereto immediately prior to such adjustment and dividing the product thereof by
the new Purchase Price. As used herein, the term "Common Stock Deemed
Outstanding" means, at any given time, the number of shares of Common Stock
actually outstanding at such time, plus the number of shares of Common Stock
deemed to be outstanding pursuant to subparagraphs (A) and (B) of paragraph (ii)
below.
(ii) For purposes of determining the adjusted Purchase Price, the
following shall be applicable:
(A) Issuance of Rights or Options. If and whenever on or
after the original date of issuance of this $10.25 Warrant the Company in any
manner grants any rights or options to subscribe for or to purchase Common Stock
or any stock or other securities convertible into or exchangeable for Common
Stock (such rights or options being herein called "Options" and such convertible
or exchangeable stock or securities being herein called "Convertible
Securities") and the price per share for which Common Stock is issuable upon the
exercise of such Options or upon conversion or exchange of such Convertible
Securities is less than the Market Price at the time of the granting of such
Options, then the total maximum number of shares of Common Stock issuable upon
the exercise of such Options or upon conversion or exchange of the total maximum
amount of such Convertible Securities shall be deemed to be outstanding and to
have been issued and sold by the Company at the time of the granting of such
Options for such price per share. For purposes of this paragraph, the "price per
share for which Common Stock is issuable" shall be determined by dividing (I)
the total amount, if any, received or receivable by the Company as consideration
for the granting of such Options, plus the minimum aggregate amount of
additional consideration payable to the Company upon exercise of all such
Options, plus in the case of such Options which relate to Convertible
Securities, the minimum aggregate amount of additional consideration if any,
payable to the Company upon the issuance or sale of such Convertible Securities
and the conversion or exchange thereof, by (II) the total maximum number of
shares of Common Stock issuable upon the exercise of such Options or upon the
conversion or exchange of all such Convertible Securities issuable upon the
exercise of such Options. No further adjustment of the Purchase Price shall be
made when Convertible Securities are actually issued upon the exercise of such
Options or when Common Stock is
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actually issued upon the exercise of such Options or the conversion or exchange
of such Convertible Securities.
(B) Issuance of Convertible Securities. If and whenever on
or after the original date of issuance of this $10.25 Warrant the Company in any
manner issues or sells any Convertible Securities and the price per share for
which Common Stock is issuable upon such conversion or exchange of such
Convertible Securities is less than the Market Price at the time of such issue
or sale, then the maximum number of shares of Common Stock issuable upon
conversion or exchange of such Convertible Securities shall be deemed to be
outstanding and to have been issued and sold by the Company at the time of the
issuance or sale of such Convertible Securities for such price per share. For
the purposes of this paragraph, the "price per share for which Common Stock is
issuable" shall be determined by dividing (I) the total amount received or
receivable by the Company as consideration for the issue or sale of such
Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange
thereof, by (II) the total maximum number of shares of Common Stock issuable
upon the conversion or exchange of all such Convertible Securities. No further
adjustment of the Purchase Price shall be made when Common Stock is actually
issued upon the conversion or exchange of such Convertible Securities, and if
any such issue or sale of such Convertible Securities is made upon exercise of
any Options for which adjustments of the Purchase Price had been or are to be
made pursuant to other provisions hereof, no further adjustment of the Purchase
Price shall be made by reason of such issue or sale.
(C) Change in Option Price or Conversion Rate. If the
exercise price provided for in any Options, the additional consideration, if
any, payable upon the conversion or exchange of any Convertible Securities, or
the rate at which any Convertible Securities are convertible into or
exchangeable for Common Stock change at any time, the Purchase Price in effect
at the time of such change shall be readjusted to the Purchase Price, which
would have been in effect at such time had such Options or Convertible
Securities provided for such changed exercise price, additional consideration or
changed conversion rate, as the case may be, at the time initially granted,
issued or sold; provided that if such adjustment would result in an increase of
the Purchase Price then in effect, such adjustment shall not be effective until
30 days after written notice thereof has been given by the Company to the holder
of this $10.25 Warrant.
(D) Treatment of Expired Options and Unexercised Convertible
Securities. Upon the expiration of any Option or the termination of any right to
convert or exchange any Convertible Security without the exercise of any such
Option or right, the Purchase Price then in effect hereunder shall be adjusted
to the Purchase Price, which would have been in effect at the time of such
expiration or termination had such Option or Convertible Security, to the extent
outstanding immediately prior to such expiration or termination, never been
issued; provided that if such expiration or termination would result in an
increase in the Purchase Price then in effect, such increase shall not be
effective until 30 days after written notice thereof has been given to the
holder of this $10.25 Warrant.
(E) Calculation of Consideration Received. If any Common
Stock, Options or Convertible Securities are issued or sold or deemed to have
been issued or sold for
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cash, the consideration received therefor shall be deemed to be the net amount
received by the Company therefor. In case any Common Stock, Options or
Convertible Securities are issued or sold or deemed to have been issued or sold
for consideration other than cash, the amount of the consideration other than
cash received by the Company shall be the fair value of such consideration,
except where such consideration consists of securities, in which case the amount
of consideration received by the Company shall be the Market Price thereof as of
the date of receipt. If any Common Stock, Options or Convertible Securities are
issued to the owners of the non-surviving entity in connection with any merger
in which the Company is the surviving corporation, the amount of consideration
therefor shall be deemed to be the fair value of such portion of the net assets
and business of the nonsurviving entity as is attributable to such Common Stock,
Options or Convertible Securities, as the case may be. The fair value of any
consideration other than cash and securities shall be determined by a majority
of the Company's board of directors (including two-thirds of its Outside
Directors). As used herein, the term "Market Price" of any security means the
average of the closing sales prices of such security on all securities exchanges
on which such security may at the time be listed, or, if there has been no sale
on any such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and asked
prices quoted in the NASDAQ System as of 4:00 P.M., New York time, or, if on any
day such security is not quoted in the NASDAQ System, the average of the highest
bid and lowest asked prices on such day in the domestic over-the-counter market
as reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of 21 days
consisting of the day as of which "Market Price" is being determined and the 20
consecutive business days prior to such day; provided, however, that, if at any
time such security is not listed on any securities exchange or quoted in the
NASDAQ System or the over-the-counter market, the "Market Price" shall be the
fair value thereof determined jointly by the Company and the holder of this
$10.25 Warrant. If such parties are unable to reach agreement within a
reasonable period of time, such fair value shall be determined by an independent
appraiser experienced in valuing securities jointly selected by the Company and
the holder of this $10.25 Warrant. The determination of such appraiser shall be
final and binding upon the parties, and the Company shall pay the fees and
expenses of such appraiser.
(F) Integrated Transactions. In case any Option is issued in
connection with the issue or sale of other securities of the Company, together
comprising one integrated transaction in which no specific consideration is
allocated to such Option by the parties thereto, the Option shall be deemed to
have been issued for a consideration of $.01.
(G) Treasury Shares. The number of shares of Common Stock
outstanding at any given time does not include shares owned or held by or for
the account of the Company or any Subsidiary of the Company, and the disposition
of any shares so owned or held shall be considered an issue or sale of Common
Stock.
(H) Record Date. If the Company takes a record of the
holders of Common Stock for the purpose of entitling them (a) to receive a
dividend or other distribution payable in Common Stock, Options or Convertible
Securities or (b) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed to be
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the date of the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or upon the making of such
other distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(I) Subdivision or Combination of Common Stock. If the
Company at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) its outstanding shares of Common Stock into a
greater number of shares, the Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced, and if the Company at any time
combines (by reverse stock split or otherwise) its outstanding shares of Common
Stock into a smaller number of shares, the Purchase Price in effect immediately
prior to such combination shall be proportionately increased.
(J) Reorganization, Reclassification, Consolidation, Merger
or Sale. Any reorganization, reclassification, consolidation, merger, sale of
all or substantially all of the Company's assets to another Person or other
transaction which is affected in such a manner that holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock is referred
to herein as an "Organic Change". Prior to the consummation of any Organic
Change, the Company shall make appropriate provision to insure that the holder
of this $10.25 Warrant shall thereafter have the right to acquire and receive,
in lieu of or in addition to (as the case may be) the shares of Common Stock
immediately theretofore acquirable and receivable upon the exercise of this
$10.25 Warrant, such shares of stock, securities or assets as such holder would
have received in connection with such Organic Change if the holder of this
$10.25 Warrant had exercised this $10.25 Warrant immediately prior to such
Organic Change. In each such case, the Company shall also make appropriate
provision to insure that the adjustment provisions of this $10.25 Warrant shall
thereafter continue to apply (including, in the case of any such consolidation,
merger or sale in which the successor entity or purchasing entity is other than
the Company, an immediate adjustment of the Purchase Price to the value for the
Common Stock reflected by the terms of such consolidation, merger or sale, and a
corresponding immediate adjustment in the number of shares of Common Stock
acquirable and receivable upon exercise of this $10.25 Warrant, if the value so
reflected is less than the Purchase Price in effect immediately prior to such
consolidation, merger or sale). The Company shall not effect any consolidation,
merger or sale, unless prior to the consummation thereof, the successor
corporation (if other than the Company) resulting from such consolidation or
merger or the corporation purchasing such assets assumes by written instrument
the obligation to deliver to the holder of this $10.25 Warrant such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to acquire.
(K) Certain Events. If any event occurs of the type
contemplated by the adjustment provisions of this $10.25 Warrant but not
expressly provided for by such provisions (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or other rights with
equity features), then the Company's board of directors shall make an
appropriate adjustment in the Purchase Price so as to protect the rights of the
holder of this $10.25 Warrant; provided that no such adjustment shall increase
the Purchase Price as otherwise determined pursuant hereto or decrease the
number of shares of Common Stock issuable upon exercise of this $10.25 Warrant.
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(L) Notices. Immediately upon any adjustment of the Purchase
Price, the Company shall give written notice thereof to the holder of this
$10.25 Warrant, setting forth in reasonable detail and certifying the
calculation of such adjustment. The Company shall also give written notice to
the holder of this $10.25 Warrant at least 20 days prior to the date on which
the Company closes its books or takes a record (I) with respect to any dividend
or distribution upon the Common Stock, (II) with respect to any pro rata
subscription offer to holders of the Common Stock or (III) for determining
rights to vote with respect to any Organic Change, dissolution or liquidation,
and the date on which any Organic Change shall take place.
(M) Purchase Rights. If at any time the Company grants,
issues or sells any Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property (the "Purchase Rights") pro rata to each
record holder of the Common Stock, in its capacity as such record holder, then
the holder of this $10.25 Warrant shall thereafter be entitled to acquire, in
addition to the shares of Common Stock acquirable and receivable upon exercise
of this $10.25 Warrant, and upon the terms applicable to such Purchase Rights,
the aggregate Purchase Rights which such holder could have acquired if such
holder had held the number of shares of Common Stock acquirable upon exercise of
this $10.25 Warrant immediately before the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is
taken, the date as of which the record holders of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issuance
upon exercise of this $10.25 Warrant, such number of shares of Common Stock as
shall from time to time be issuable upon the exercise of this $10.25 Warrant;
and if at any time the number of authorized but unissued and issued but not
outstanding shares of the Common Stock, on a fully diluted basis, shall not be
sufficient to effect the exercise of this $10.25 Warrant at the Purchase Price
then in effect, the Company will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued or
issued but not outstanding shares of the Common Stock to such number of shares
as shall be sufficient for such purpose. The Company covenants that all shares
of Common Stock which shall be so issuable, when issued upon conversion of this
$10.25 Warrant, shall be duly and validly issued, fully-paid and non-assessable.
The issuance of certificates for shares of the Common Stock upon the
exercise of this $10.25 Warrant shall be made without charge to the holder
hereof for any issuance tax in respect of the issuance of such certificates or
other cost incurred by the Company in connection with such exercise and the
related issuance of shares of Common Stock.
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 herein be construed to
confer upon the holder hereof, as such, any of the rights of a shareholder of
the Company 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,
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consolidation, merger, conveyance, or otherwise), or except as provided above,
to receive notice of meetings, or to receive dividends of subscription rights or
otherwise, until the Warrant or Warrants evidenced by this Warrant Certificate
shall have been exercised.
Every holder of this Warrant Certificate by accepting the same
consents and agrees with the Company that:
(a) Neither this Warrant Certificate nor any rights hereunder may
be assigned, transferred, pledged or hypothecated in any way (whether
by operation of law or otherwise) without the express prior written
consent of the Company, which consent will be given at the Company's
sole discretion; provided, however, that the holder hereof may
transfer this Warrant Certificate and the rights hereunder to an
Affiliate (as defined below) of such holder without such consent;
provided, further, however, that, notwithstanding the foregoing
proviso, that any such permitted transfer may be effected only if the
Additional $10.25 Warrants and the $6.00 Warrants held by the holder
of this $10.25 Warrant are transferred to the same transferee as part
of the same transfer. This Warrant Certificate shall not be subject to
execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of this Warrant
Certificate or the rights hereunder contrary to the provisions hereof
shall be null and void and without legal effect;
(b) This Warrant Certificate, if transferred in accordance with
paragraph (a), above, is transferable only on the registry books of
the Company if surrendered at the principal office of the Company,
duly endorsed, or accompanied by a proper instrument of transfer;
(c) The Company may deem and treat the person in whose name the
Warrant Certificate is registered as the absolute owner thereof and of
the $10.25 Warrants evidenced thereby (notwithstanding any notations
of ownership or writing on the Warrant Certificates made by anyone
other than the Company) for all purposes whatsoever, and the Company
shall not be affected by any notice to the contrary;
(d) If this $10.25 Warrant is exercised at any time prior to the
closing of a Qualified Public Offering, the holder hereof shall, prior
to the delivery of any shares of Common Stock which may be purchased
upon exercise hereof, execute and deliver to the Company instruments
of accession providing that the holder of such shares shall become a
party to, and shall be subject to the terms and conditions of, the
Amended and Restated Stockholders' Agreement dated as of March 31,
2000 by and among the Company and its stockholders, as the same may be
amended from time to time, and the Amended and Restated Registration
Rights Agreement dated as of March 31, 2000 by and among the Company
and its stockholders, as the same may be amended from time to time;
and
(e) In the event of the exercise of this $10.25 Warrant, the
holder hereof
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intends to purchase the shares purchased upon exercise hereof for
investment purposes only and not with a view to resale or other
distribution; except that the Company, at its election, may waive or
release this condition in the event the shares purchased upon such
exercise are registered under the Securities Act of 1933, or upon the
happening of any other contingency which the Company shall determine
warrants the waiver or release of this condition. The holder hereof
also agrees that the certificates evidencing the shares purchase upon
exercise of this $10.25 Warrant may bear restrictive legends, if
appropriate, indicating that the shares have not been registered under
the Securities Act of 1933 and are subject to restrictions on the
transfer thereof, which legends may be in such forms as the Company
shall determine to be proper.
As used herein, the term "Affiliate" shall mean any Person (as defined
below) directly or indirectly controlling, controlled by or under direct or
indirect common control with the Company (or other specified Person) and shall
include (a) any Person who is a director or beneficial owner of at least 10% of
the then outstanding capital stock of the Company (or other specified Person)
and Family Members (as defined below) of any such Person, (b) any Person in
which the Company (or other specified Person) or an Affiliate (as defined in
clause (a) above) of the Company (or other specified Person) shall, directly or
indirectly, either beneficially own at least 10% of its then outstanding equity
securities or constitute at least a 10% equity participant, and (c) in the case
of a specified Person who is an individual, Family Members of such Person.
As used herein, the term "Family Members" shall mean, as applied to
any individual, any spouse, child, grandchild, parent, brother or sister thereof
or any spouse of any of the foregoing, and each trust created for the benefit of
one or more of such Persons and each custodian of property of one or more such
Persons.
As used herein, the term "Person" shall mean an individual,
partnership, corporation, association, trust, joint venture, unincorporated
organization, and any government, governmental department or agency or political
subdivision thereof.
All notices, demands and other communications provided for hereunder
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, one Business Day after being sent to the recipient
by reputable express courier service (charges prepaid) or three Business Days
after being mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be delivered or sent (i) to the Company at its principal
executive offices and (ii) to the holder of this $10.25 Warrant at its address
as it appears on the Company's records (or such other address as may be
indicated by the holder of this $10.25 Warrant upon written notice to the
Company).
THIS WARRANT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ITS CONFLICTS OF
LAWS PRINCIPLES.
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Any legal action or proceeding with respect to this $10.25 Warrant may
be brought in the courts of the City of St. Louis, State of Missouri, or of the
United States of America for the Eastern District of Missouri in St. Louis,
Missouri, and, by execution and issuance or acceptance of this $10.25 Warrant,
the Company and the holder of this $10.25 Warrant hereby accepts for itself and
in respect of its property, generally and unconditionally, the jurisdiction of
the aforesaid courts. The Company and the holder of this $10.25 Warrant further
irrevocably consents to the service of process out of any of the aforementioned
courts in any action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Company at its principal
executive offices and to the holder of this $10.25 Warrant at its address as it
appears on the Company's records (or such other address as may be indicated by
the holder of this $10.25 Warrant upon written notice to the Company), such
service to become effective seven days after such mailing. Nothing herein shall
affect the right of the Company or the holder of this $10.25 Warrant to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed in any other jurisdiction. The Company and the holder of this
$10.25 Warrant further hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this $10.25 Warrant brought in
the courts referred to above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and issued by its duly authorized officer as of , 2000.
XXXXXXX COMMUNICATIONS, INC.
By:
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ATTEST:
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FORM OF ELECTION TO PURCHASE
(TO BE EXECUTED IF HOLDER DESIRES TO EXERCISE THE WARRANT CERTIFICATE.)
To Xxxxxxx Communications, Inc.
[ ] The undersigned hereby irrevocably elects to exercise by cash payment
of the aggregate Purchase Price all of the $10.25 Warrants represented by this
Warrant Certificate to purchase the shares of Common Stock issuable upon the
exercise of such Warrants and requests that certificates for such shares be
issued in the name of:
Please insert social security
or other identifying number
--------------------------------------------------------------------------------
(Please print name and address)
[ ] The undersigned hereby irrevocably elects, subject to and conditioned
upon the closing of a Qualified Public Offering on the Closing Date in
accordance with the terms of this Warrant Certificate, to exercise
[ ] by cash payment of the aggregate Purchase Price
[ ] by "Cashless Exercise" of securities equal to the Market Value
of the aggregate Purchase Price
of all of the $10.25 Warrants represented by this Warrant Certificate to
purchase the shares of Common Stock issuable upon the exercise of such Warrants
and requests that certificates for such shares be issued in the name of:
Please insert social security
or other identifying number
--------------------------------------------------------------------------------
(Please print name and address)
Dated: ,
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-----------------------------------
Signature
(SIGNATURE MUST CONFORM IN ALL
RESPECTS TO NAME OF HOLDER AS
SPECIFIED ON THE FACE OF THIS
WARRANT
11
12
CERTIFICATE)
12
13
FORM OF ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH HOLDER DESIRES
TO TRANSFER THE WARRANT CERTIFICATE.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto this Warrant
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint
Attorney, to transfer the within Warrant Certificate on the books of the within-
named Company, with full power of substitution.
Dated: ,
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Signature
(SIGNATURE MUST CORRESPOND IN ALL
RESPECTS TO THE NAME OF HOLDER AS
SPECIFIED ON THE FACE OF THIS WARRANT
CERTIFICATE).
