WARRANT TO PURCHASE COMMON STOCK
EXHIBIT
10.2
WARRANT
TO PURCHASE COMMON STOCK
THIS
WARRANT AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY
NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER
SUCH
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
|
Number
of Shares:
|
Up
to [ ] shares (subject to adjustment)
|
|
Warrant
Price:
|
$
per share
|
|
Issuance
Date:
|
December
7, 2006
|
|
Expiration
Date:
|
December
6, 2013
|
THIS
WARRANT CERTIFIES THAT
for
value received, [
]
or its
registered assigns (hereinafter called the “Holder”)
is
entitled to purchase from VoIP, Inc. (hereinafter called the “Company”),
the
above referenced number of fully paid and nonassessable shares (the
“Shares”)
of
common stock (the “Common
Stock”),
of
Company, at the Warrant Price per Share referenced above; the number of shares
purchasable upon exercise of this Warrant referenced above being subject to
adjustment from time to time as described herein.
1.
Term
and Exercise.
1.1
Term.
This
Warrant is exercisable in whole or in part (but not as to any fractional share
of Common Stock), at any time and from time to time after the date hereof prior
to 5:00 p.m. on the Expiration Date set forth above.
1.2
Warrant
Price.
The
Warrant shall be exercisable at the Warrant Price described above.
1.3
Maximum
Number of Shares.
The
maximum number of Shares of Common Stock exercisable pursuant to this Warrant
as
set forth above. However, notwithstanding anything herein to the contrary,
in no
event shall the Holder be permitted to exercise this Warrant for a number of
Shares greater than the number that would cause the aggregate beneficial
ownership of the Company’s Common Stock (calculated pursuant to Rule 13d-3 of
the Securities Exchange Act of 1934, as amended) of (a) the Holder and its
affiliates to equal 9.99% of
the
Company’s Common Stock then outstanding.
1.4
Procedure
for Exercise of Warrant.
Holder
may exercise this Warrant by delivering the following to the principal office
of
the Company in accordance with Section 5.1 hereof: (i) a duly executed
Notice of Exercise in substantially the form attached as Schedule A,
(ii) payment of the Warrant Price then in effect for each of the Shares
being purchased, as designated in the Notice of Exercise, and (iii) this
Warrant. Payment of the Warrant Price may be in cash, certified or official
bank
check payable to the order of the Company, or wire transfer of funds to the
Company’s account (or any combination of any of the foregoing) in the amount of
the Warrant Price for each share being purchased.
1.5
Delivery
of Certificate and New Warrant.
In the
event of any exercise of the rights represented by this Warrant, a certificate
or certificates for the shares of Common Stock so purchased, registered in
the
name of the Holder or such other name or names as may be designated by the
Holder, together with any other securities or other property which the Holder
is
entitled to receive upon exercise of this Warrant, shall be delivered to the
Holder hereof, at the Company’s expense, within a reasonable time after the
rights represented by this Warrant shall have been so exercised; and, unless
this Warrant has expired, a new Warrant representing the number of Shares
(except a remaining fractional share), if any, with respect to which this
Warrant shall not then have been exercised shall also be issued to the Holder
hereof within such time. The person in whose name any certificate for shares
of
Common Stock is issued upon exercise of this Warrant shall for all purposes
be
deemed to have become the holder of record of such shares on the date on which
the Warrant was surrendered and payment of the Warrant Price was received by
the
Company, irrespective of the date of delivery of such certificate, except that,
if the date of such surrender and payment is on a date when the stock transfer
books of the Company are closed, such person shall be deemed to have become
the
holder of such Shares at the close of business on the next succeeding date
on
which the stock transfer books are open.
1.6
Restrictive
Legend.
Each
certificate for Shares shall bear a restrictive legend in substantially the
form
as follows, together with any additional legend required by (i) any
applicable state securities laws and (ii) any securities exchange upon
which such Shares may, at the time of such exercise, be listed:
The
shares of stock evidenced by this certificate have not been registered under
the
U.S. Securities Act of 1933, as amended, and may not be offered, sold, pledged
or otherwise transferred ("transferred") in the absence of such registration
or
an applicable exemption therefrom. In the absence of such registration, such
shares may not be transferred unless, if the Company requests, the Company
has
received a written opinion from counsel in form and substance satisfactory
to
the Company stating that such transfer is being made in compliance with all
applicable federal and state securities laws.
Any
certificate issued at any time in exchange or substitution for any certificate
bearing such legend shall also bear such legend unless, in the opinion of
counsel for the Holder thereof (which counsel shall be reasonably satisfactory
to the Company), the securities represented thereby are not, at such time,
required by law to bear such legend.
1.7
Fractional
Shares.
No
fractional Shares shall be issuable upon exercise or conversion of the Warrant.
In the event of a fractional interest, the number of Shares to be issued shall
be rounded down to the nearest whole Share.
2.
Representations,
Warranties and Covenants.
2.1
Representations
and Warranties.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of its state of incorporation and has all necessary power and
authority to perform its obligations under this Warrant;
The
execution, delivery and performance of this Warrant has been duly authorized
by
all necessary actions on the part of the Company and constitutes the legal,
valid and binding obligation of the Company, enforceable against the Company
in
accordance with its terms; and
This
Warrant does not violate and is not in conflict with any of the provisions
of
the Company’s Articles of Incorporation or Certificate of Determination, Bylaws
and any resolutions of the Company’s Board of Directors or stockholders, or any
agreement of the Company, and no event has occurred and no condition or
circumstance exists that might (with or without notice or lapse of time)
constitute or result directly or indirectly in such a violation or
conflict.
B-1
2.2
Issuance
of Shares.
The
Company covenants and agrees that all shares of Common Stock that may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance,
be validly issued, fully paid and nonassessable, and free from all taxes, liens
and charges with respect to the issue thereof. The Company further covenants
and
agrees that it will pay when due and payable any and all federal and state
taxes
which may be payable in respect of the issue of this Warrant or any Common
Stock
or certificates therefor issuable upon the exercise of this Warrant. The Company
represents that as of the issuance date of this Warrant, the Company does not
have a sufficient number of shares of Common Stock to provide for the exercise
in full of the rights represented by this Warrant. The Company undertakes,
subject to the limitations set forth in Section 1.3 hereto, to take all such
corporate action as may be deemed necessary or advisable to increase the number
of its authorized shares of Common Stock as shall be sufficient to permit the
exercise of the Warrant in full, subject to the limitations set forth in Section
1.3 hereto, including without limitation, using its best efforts to obtain
any
necessary stockholder approval of such increase. The Company further covenants
and agrees that if any shares of capital stock to be reserved for the purpose
of
the issuance of shares upon the exercise of this Warrant require registration
with or approval of any governmental authority under any federal or state law
before such shares may be validly issued or delivered upon exercise, then the
Company will in good faith use its best efforts to endeavor to secure such
registration or approval as soon as reasonably practical, as the case may be.
If
and so long as the Common Stock issuable upon the exercise of this Warrant
is
listed on any national securities exchange or the Nasdaq Stock Market, the
Company will, if permitted by the rules of such exchange or market, list and
keep listed on such exchange or market, upon official notice of issuance, all
shares of such Common Stock issuable upon exercise of this Warrant.
2.3
Registration
of Warrant Shares. The
Company at its sole cost and expense will use its best efforts to file a
registration statement with the United States Securities and Exchange Commission
registering the Warrant Shares as soon as reasonably practical.
3.
Other
Adjustments.
3.1
Subdivision
or Combination of Shares.
In case
the Company shall at any time subdivide its outstanding Common Stock into a
greater number of shares, the Warrant Price in effect immediately prior to
such
subdivision shall be proportionately reduced, and the number of Shares subject
to this Warrant shall be proportionately increased, and conversely, in case
the
outstanding Common Stock of the Company shall be combined into a smaller number
of shares, the Warrant Price in effect immediately prior to such combination
shall be proportionately increased, and the number of Shares subject to this
Warrant shall be proportionately decreased.
3.2
Dividends
in Common Stock, Other Stock or Property.
If at
any time or from time to time the holders of Common Stock (or any shares of
stock or other securities at the time receivable upon the exercise of this
Warrant) shall have received or become entitled to receive, without payment
therefor:
Common
Stock, Options or any shares or other securities which are at any time directly
or indirectly convertible into or exchangeable for Common Stock, or any rights
or options to subscribe for, purchase or otherwise acquire any of the foregoing
by way of dividend or other distribution;
any
cash
paid or payable otherwise than as a regular cash dividend; or
Common
Stock or additional shares or other securities or property (including cash)
by
way of spin-off, split-up, reclassification, combination of shares or similar
corporate rearrangement (other than Common Stock issued as a stock split or
adjustments in respect of which shall be covered by the terms of Section 3.1
above) and additional shares, other securities or property issued in connection
with a Change (as defined below) (which shall be covered by the terms of Section
3.4 below), then and in each such case, the Holder hereof shall, upon the
exercise of this Warrant, be entitled to receive, in addition to the number
of
shares of Common Stock receivable thereupon, and without payment of any
additional consideration therefor, the amount of stock and other securities
and
property (including cash in the cases referred to in clause (b) above and this
clause (c)) which such Holder would hold on the date of such exercise had such
Holder been the holder of record of such Common Stock as of the date on which
holders of Common Stock received or became entitled to receive such shares
or
all other additional stock and other securities and property.
3.3
Reorganization,
Reclassification, Consolidation, Merger or Sale.
If
any
recapitalization, reclassification or reorganization of the share capital of
the
Company, or any consolidation or merger of the Company with another corporation,
or the sale of all or substantially all of its shares and/or assets or other
transaction (including, without limitation, a sale of substantially all of
its
assets followed by a liquidation) shall be effected in such a way that holders
of Common Stock shall be entitled to receive shares, securities or other assets
or property (a “Change”),
then,
as a condition of such Change, lawful and adequate provisions shall be made
by
the Company whereby the Holder hereof shall thereafter have the right to
purchase and receive (in lieu of the Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby) such shares, securities or other assets or property as
may
be issued or payable with respect to or in exchange for the number of
outstanding Common Stock which such Holder would have been entitled to receive
had such Holder exercised this Warrant immediately prior to the consummation
of
such Change. The Company or its successor shall promptly issue to Holder a
new
Warrant for such new securities or other property. The new Warrant shall provide
for adjustments which shall be as nearly equivalent as may be practicable to
give effect to the adjustments provided for in this Section 3 including, without
limitation, adjustments to the Warrant Price and to the number of securities
or
property issuable upon exercise of the new Warrant. The provisions of this
Section 3.3 shall similarly apply to successive Changes.
4.
Ownership
and Transfer.
4.1
Ownership
of This Warrant.
The
Company may deem and treat the person in whose name this Warrant is registered
as the holder and owner hereof (notwithstanding any notations of ownership
or
writing hereon made by anyone other than the Company) for all purposes and
shall
not be affected by any notice to the contrary until presentation of this Warrant
for registration of transfer as provided in this Section 4.
4.2
Transfer
and Replacement.
This
Warrant and all rights hereunder are transferable in whole or in part upon
the
books of the Company by the Holder hereof in person or by duly authorized
attorney, and a new Warrant or Warrants, of the same tenor as this Warrant
but
registered in the name of the transferee or transferees (and in the name of
the
Holder, if a partial transfer is effected) shall be made and delivered by the
Company upon surrender of this Warrant duly endorsed, at the office of the
Company in accordance with Section 5.1 hereof. Upon receipt by the Company
of
evidence reasonably satisfactory to it of the loss, theft or destruction, and,
in such case, of indemnity or security reasonably satisfactory to it, and upon
surrender of this Warrant if mutilated, the Company will make and deliver a
new
Warrant of like tenor, in lieu of this Warrant; provided that if the Holder
hereof is an instrumentality of a state or local government or an institutional
holder or a nominee for such an instrumentality or institutional holder an
irrevocable agreement of indemnity by such Holder shall be sufficient for all
purposes of this Warrant, and no evidence of loss or theft or destruction shall
be necessary. This Warrant shall be promptly cancelled by the Company upon
the
surrender hereof in connection with any transfer or replacement. Except as
otherwise provided above, in the case of the loss, theft or destruction of
a
Warrant, the Company shall pay all expenses, taxes and other charges payable
in
connection with any transfer or replacement of this Warrant, other than income
taxes and stock transfer taxes (if any) payable in connection with a transfer
of
this Warrant, which shall be payable by the Holder. Holder will not transfer
this Warrant and the rights hereunder except in compliance with federal and
state securities laws and except after providing evidence of such compliance
reasonably satisfactory to the Company.
B-2
5.
Miscellaneous
Provisions.
5.1
Notices.
Any
notice or other document required or permitted to be given or delivered to
the
Holder shall be delivered or forwarded to the Holder, in care of Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00, 0000 Xxxxxxxxxxx, Xxxxxxxxxxx, Facsimile No.
011-41-44-777-76-33, or to such other address or number as shall have been
furnished to the Company in writing by the Holder. Any notice or other document
required or permitted to be given or delivered to the Company shall be delivered
or forwarded to the Company at
151
So. Xxxxxx Xx., Suite 3000, Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
Attn:
Xxxxxx Xxxxxx, Chief Accounting Officer, Facsimile No. 000-000-0000, or
to
such other address or number as shall have been furnished to Holder in writing
by the Company.
5.2
All
notices, requests and approvals required by this Warrant shall be in writing
and
shall be conclusively deemed to be given (i) when hand-delivered to the other
party, (ii) when received if sent by facsimile at the address and number set
forth above; provided that notices given by facsimile shall not be effective,
unless either (a) a duplicate copy of such facsimile notice is promptly given
by
depositing the same in the mail, postage prepaid and addressed to the party
as
set forth below or (b) the receiving party delivers a written confirmation
of
receipt for such notice by any other method permitted under this paragraph;
and
further provided that any notice given by facsimile received after 5:00 p.m.
(recipient’s time) or on a non-business day shall be deemed received on the next
business day; (iii) five (5) business days after deposit in the United States
mail, certified, return receipt requested, postage prepaid, and addressed to
the
party as set forth below; or (iv) the next business day after deposit with
an
international overnight delivery service, postage prepaid, addressed to the
party as set forth below with next business day delivery guaranteed; provided
that the sending party receives confirmation of delivery from the delivery
service provider.
5.3
No
Rights as Shareholder; Limitation of Liability.
This
Warrant shall not entitle the Holder to any of the rights of a shareholder
of
the Company except upon exercise in accordance with the terms hereof. No
provision hereof, in the absence of affirmative action by the Holder to purchase
shares of Common Stock, and no mere enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of the Holder for
the
Warrant Price hereunder or as a shareholder of the Company, whether such
liability is asserted by the Company or by creditors of the
Company.
5.4
Governing
Law.
This
Warrant shall be governed by and construed in accordance with the laws of the
State of Texas.
5.5
Binding
Effect on Successors.
This
Warrant shall be binding upon any corporation succeeding the Company by merger,
consolidation or acquisition of all or substantially all of the Company’s assets
and/or securities. All of the obligations of the Company relating to the Shares
issuable upon the exercise of this Warrant shall survive the exercise and
termination of this Warrant. All of the covenants and agreements of the Company
shall inure to the benefit of the successors and assigns of the
Holder.
5.6
Waiver,
Amendments and Headings.
This
Warrant and any provision hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by both parties (either
generally or in a particular instance and either retroactively or
prospectively). The headings in this Warrant are for purposes of reference
only
and shall not affect the meaning or construction of any of the provisions
hereof.
5.7
Jurisdiction.
Each of
the parties irrevocably agrees that any and all suits or proceedings based
on or
arising under this Agreement may be brought only in and shall be resolved in
the
federal or state courts located in Orange County, Florida and consents to the
jurisdiction of such courts for such purpose. Each of the parties irrevocably
waives the defense of an inconvenient forum to the maintenance of such suit
or
proceeding in any such court. Each of the parties further agrees that service
of
process upon such party mailed by first class mail to the address set forth
in
Section 5.1 shall be deemed in every respect effective service of process
upon such party in any such suit or proceeding. Nothing herein shall affect
the
right of either party
to serve
process in any other manner permitted by law. Each of the parties agrees that
a
final non-appealable judgment in any such suit or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on such judgment or in any
other lawful manner.
5.8
Attorneys'
Fees and Disbursements.
If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party or parties shall be entitled to receive
from the other party or parties reasonable attorneys’ fees and disbursements in
addition to any other relief to which the prevailing party or parties may be
entitled.
IN
WITNESS WHEREOF,
the
Company has caused this Warrant to be signed by its duly authorized officer
this
7th day of December, 2006.
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COMPANY:
|
VOIP,
INC.
By
Print
Name: Xxxxxxx
Xxxxxxx
Title:
Chief
Executive
Officer
|
B-3
SCHEDULE
A
FORM
OF NOTICE OF EXERCISE
[To
be signed only upon exercise of the Warrant]
TO
BE EXECUTED BY THE REGISTERED HOLDER
TO
EXERCISE THE WITHIN WARRANT
The
undersigned hereby elects to purchase _______ shares of Common Stock (the
“Shares”) of VoIP, Inc. under the Warrant to Purchase Common Stock dated
December 7, 2006, which the undersigned is entitled to purchase pursuant to
the
terms of such Warrant. The undersigned has delivered $_________, the aggregate
Warrant Price for _____ Shares purchased herewith, in full in cash or by
certified or official bank check or wire transfer.
Please
issue a certificate or certificates representing such shares of Common Stock
in
the name of the undersigned or in such other name as is specified below and
in
the denominations as is set forth below:
[Type
Name of Holder as it should appear on the stock certificate]
[Requested
Denominations - if no denomination is specified, a single certificate will
be
issued]
The
initial address of such Holder to be entered on the books of Company shall
be:
The
undersigned hereby represents and warrants that the undersigned is acquiring
such shares for his own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
|
By:
Print
Name:
Title:
Dated:
|
B-4
FORM
OF ASSIGNMENT
(ENTIRE)
[To
be signed only upon transfer of entire Warrant]
TO
BE EXECUTED BY THE REGISTERED HOLDER
TO
TRANSFER THE WITHIN WARRANT
FOR
VALUE RECEIVED
___________________________ hereby sells, assigns and transfers unto
_______________________________ all rights of the undersigned under and pursuant
to the within Warrant, and the undersigned does hereby irrevocably constitute
and appoint _____________________ Attorney to transfer the said Warrant on
the
books of ________ _________, with full power of substitution.
[Type
Name
of Holder]
By:
Title:
Dated:
NOTICE
The
signature to the foregoing Assignment must correspond exactly to the name as
written upon the face of the within Warrant, without alteration or enlargement
or any change whatsoever.
B-5
FORM
OF ASSIGNMENT
(PARTIAL)
[To
be signed only upon partial transfer of Warrant]
TO
BE EXECUTED BY THE REGISTERED HOLDER
TO
TRANSFER THE WITHIN WARRANT
FOR
VALUE
RECEIVED ___________________________ hereby sells, assigns and transfers unto
____________________________ (i) the rights of the undersigned to purchase
____________________ shares of Common Stock under and pursuant to the within
Warrant, and (ii) on a non-exclusive basis, all other rights of the
undersigned under and pursuant to the within Warrant, it being understood that
the undersigned shall retain, severally (and not jointly) with the transferee(s)
named herein, all rights assigned on such non-exclusive basis. The undersigned
does hereby irrevocably constitute and appoint __________________________
Attorney to transfer the said Warrant on the books of VoIP, Inc., with full
power of substitution.
[Type
Name
of Holder]
By:
Title:
Dated:
NOTICE
The
signature to the foregoing Assignment must correspond exactly to the name as
written upon the face of the within Warrant, without alteration or enlargement
or any change whatsoever.
B-6
