EXHIBIT 10.31
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH
SECURITIES MAY NOT BE OFFERED OR SOLD OR TRANSFERRED IN THE UNITED STATES OR TO
U.S. PERSONS IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
THE SECURITIES ACT WHICH, EXCEPT IN THE CASE OF AN EXEMPTION PURSUANT TO (A)
RULE 144 UNDER THE SECURITIES ACT, OR (B) REGULATION S PROMULGATED UNDER THE
SECURITIES ACT, IS CONFIRMED IN A LEGAL OPINION SATISFACTORY TO THE COMPANY.
Warrant No. L-_____ Date: May 11, 2001
Warrant Expiration Date: May 11, 2004
CLASS L STOCK PURCHASE WARRANT
TO PURCHASE SHARES OF COMMON STOCK OF
VOICE MOBILITY INTERNATIONAL, INC.
THIS CLASS L STOCK PURCHASE WARRANT (this "WARRANT") certifies that, for
value received, ________________ (the "INVESTOR"), is entitled, upon the terms
and subject to the conditions hereinafter set forth, at any time after the date
hereof and on or prior to May 11, 2004 (the "TERMINATION DATE"), but not
thereafter, to subscribe for and purchase from VOICE MOBILITY INTERNATIONAL,
INC., a Nevada corporation (the "COMPANY"), _________ shares of Common Stock
(the "WARRANT SHARES") on the terms and at the Exercise Price set forth below.
This Warrant is being issued in connection with the Nonnegotiable Promissory
Note (the "NOTE"), dated as of even date herewith, made by the Company in favor
of the Investor, and is subject to the terms of the Note.
The purchase price of one share of Common Stock (the "EXERCISE PRICE")
under this Warrant shall be shall be One Dollar and Fifty Cents (US$1.50). The
Exercise Price and the number of shares for which the Warrant is exercisable
shall be subject to adjustment as provided herein.
1. TITLE OF WARRANT. This Warrant shall be issued in the name of the
Investor. This Warrant is not transferable.
2. AUTHORIZATION OF SHARES. The Company covenants that all shares of
Common Stock which may be issued upon the exercise of rights represented by this
Warrant will, upon exercise of the rights represented by this Warrant and
payment in full of the Exercise Price, be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges in respect of
the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).
3. EXERCISE OF WARRANT. This Warrant may not be exercised in the United
States or by or on behalf of a U.S. person unless it has been registered under
the Securities Act of 1933, as
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amended (the "SECURITIES ACT"), and any applicable State securities laws, or
unless an exemption from such registration requirements is available. Exercise
of the purchase rights represented by this Warrant may be made at any time or
times one day after the date hereof, in whole or in part, before the close of
business on the Termination Date by the surrender of this Warrant and the Notice
of Exercise annexed hereto duly executed, at the office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Investor at the address of the Investor appearing on the books of the
Company) and upon payment of the Exercise Price of the shares thereby purchased;
whereupon the Investor shall be entitled to receive a certificate for the number
of shares of Common Stock so purchased. Certificates for shares purchased
hereunder shall be delivered to the Investor within five (5) business days after
the date on which this Warrant shall have been exercised as aforesaid. Payment
of the Exercise Price of the shares may be by certified check or cashier's check
or by wire transfer to an account designated by the Company in an amount equal
to the Exercise Price multiplied by the number of shares being purchased.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant.
5. CHARGES, TAXES AND EXPENSES. Issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without charge to
the Investor for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and expenses
shall be paid by the Company, and such certificates shall be issued in the name
of the Investor.
6. RESTRICTIONS ON TRANSFER OF WARRANT SHARES.
(a) Investor hereby agrees that Investor shall sell not, transfer,
assign or distribute, either directly or indirectly, any of the Warrant Shares
other than in accordance with and pursuant to the Securities Act and any
exemptions from registration thereunder, including without limitation, Rule 144
or Regulation S. Notwithstanding the foregoing, Investor agrees that Investor
will not transfer, assign or distribute, either directly or indirectly, any of
the Warrant Shares pursuant to an exemption from registration under the
Securities Act and any applicable State securities laws unless all appropriate
action necessary for compliance with such exemption (including Rule 144
promulgated under the Securities Act) shall have been taken. Any transferee of
the Warrant Shares must agree in writing to comply with the provisions of this
Section 6(a) with respect to any resale or other disposition of such securities.
(b) The Company shall not be required to: (i) transfer on its books
any Warrant Shares that have been sold, transferred, assigned or distributed in
violation of the provisions of Section 6(a), or (ii) treat as the owner of the
Warrant Shares, or otherwise to accord voting or dividend rights to, any
transferee to whom Warrant Shares have been transferred in contravention of this
Agreement.
(c) Unless the Warrant Shares have been registered under the
Securities Act, or are exempt from registration, upon exercise of the Warrant or
any portion thereof and the issuance of any Warrant Shares, all certificates
representing Warrant Shares shall bear on the face thereof substantially the
following legend:
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THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AS
APPLICABLE, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (A) IN ACCORDANCE WITH
THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT,
(B) PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT AND APPROPRIATE
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY APPLICABLE STATE, OR
(C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. NO HEDGING
TRANSACTIONS INVOLVING THE SECURITIES EVIDENCED BY THIS CERTIFICATE
MAY BE CONDUCTED EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT.
The Investor agrees and acknowledges that this Warrant is being purchased for
its own account, for investment purposes only, and not for the account of any
other person, and not with a view to distribution, assignment, pledge or resale
to others or to fractionalization in whole or in part. The Investor further
represents, warrants and agrees as follows: no other person has or will have a
direct or indirect beneficial interest in this Warrant and the Investor will not
sell, hypothecate or otherwise transfer the Warrant except in accordance with
the Securities Act and applicable state securities laws or unless, in the
opinion of counsel for the Investor acceptable to the Company, an exemption from
the registration requirements of the Securities Act and such laws is available;
and that Investor is an "accredited investor" under the Securities Act.
7. CLOSING OF BOOKS. The Company will at no time close its shareholder
books or records in any manner which interferes with the timely exercise of this
Warrant.
8. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. This Warrant does not entitle
the Investor to any voting rights or other rights as a shareholder of the
Company prior to the exercise thereof. If, however, at the time of the surrender
of this Warrant and purchase of Warrant Shares the Investor shall be entitled to
exercise this Warrant, the shares so purchased shall be and be deemed to be
issued to the Investor as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been exercised.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
represents and warrants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any Warrant,
and in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of such
Warrant, if mutilated, the Company will make and deliver a new Warrant of like
tenor and dated as of such cancellation, in lieu of this Warrant.
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10. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday in the United States, then
such action may be taken or such right may be exercised on the next succeeding
day not a Saturday, Sunday or legal holiday.
11. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. In the
event of any stock split, reverse stock split, stock dividend, reclassification
or similar event affecting the Common Stock occurring after the date hereof
(each an "ADJUSTMENT TRANSACTION"), (i) the Exercise Price shall be adjusted by
multiplying it by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such Adjustment
Transaction, and the denominator of which shall be the number of shares of
Common Stock outstanding immediately after such Adjustment Transaction, and (ii)
the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted by multiplying it by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately after such Adjustment Transaction, and the denominator of which
shall be the number of shares of Common Stock outstanding immediately prior to
such Adjustment Transaction; PROVIDED, HOWEVER, that the Company shall not issue
any fractional shares of Common Stock in any exercise of this Warrant, and the
number of shares of Common Stock issuable upon such exercise, if not a whole
number, shall be rounded up to the next whole number of shares.
12. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may at its
discretion, at any time during the term of this Warrant, reduce the then current
Exercise Price to any amount and for any period of time deemed appropriate by
the Board of Directors of the Company.
13. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or number
or kind of securities or other property purchasable upon the exercise of this
Warrant or the Exercise Price is adjusted as herein provided, the Company shall
promptly mail by registered or certified mail, return receipt requested, to the
Investor notice of such adjustment or adjustments setting forth the number of
Warrant Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth computation by which such adjustment was made. Such
notice, in absence of manifest error, shall be conclusive evidence of the
correctness of such adjustment.
14. AUTHORIZED SHARES. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to
its officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of the Company's Common
Stock upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
shares of Common Stock may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the OTC Bulletin Board
or any domestic securities exchange upon which the Common Stock may be listed.
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15. MISCELLANEOUS.
(a) ISSUE DATE; JURISDICTION. The provisions of this Warrant shall be
construed and shall be given effect in all respects as if it had been issued and
delivered by the Company on the date hereof. This Warrant shall be binding upon
any successors or assigns of the parties hereto. This Warrant shall constitute a
contract under the laws and jurisdiction of the state of Nevada and for all
purposes shall be construed in accordance with and governed by the laws of said
state without regard to its conflict of law, principles or rules.
(b) RESTRICTIONS. The Investor acknowledges that the Common Stock
acquired upon the exercise of this Warrant, if not registered, may have
restrictions upon its resale imposed by state and federal securities laws.
(c) MODIFICATION AND WAIVER. This Warrant and any provisions hereof
may be changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of the same is sought.
(d) NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the Investor or the Company shall be
delivered or shall be sent by certified or registered mail, postage prepaid, to
the Investor at its address as shown on the books of the Company or to the
Company at the address set forth in the Note.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: May 11, 2001
VOICE MOBILITY INTERNATIONAL, INC.
By:
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Name: Xxxxx Xxxxxx
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Title: CFO
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NOTICE OF EXERCISE
To: Voice Mobility International, Inc.
(1) The undersigned hereby elects to purchase _________________
shares of Common Stock of Voice Mobility International, Inc. pursuant to the
terms of the attached Warrant, and tenders herewith payment of the purchase
price in full, together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned.
Dated:
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By:
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Name:
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Title:
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NOTE: Signature must conform in all respects to xxxxxx's name as specified on
the face of the attached warrant.
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