THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR WITH ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED
UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SECURITIES IS EFFECTIVE UNDER
THE SECURITIES ACT OR (II) THE TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT, AND, IF THE COMPANY REQUESTS, AN OPINION SATISFACTORY TO THE
COMPANY TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.
VOCALTEC COMMUNICATIONS LTD.
WARRANT
Warrant No. 2004-__ Dated: March 11, 2004
VocalTec Communications Ltd., an Israeli corporation (the "Company"),
hereby certifies that, for value received, _________________ or its registered
assigns (including permitted transferees, the "Holder"), is entitled to
purchase from the Company up to a total of _______ shares (as adjusted from
time to time as provided in Section 9) of Ordinary Shares (as defined below)
(each such share, a "Warrant Share" and all such shares, the "Warrant Shares")
at an exercise price equal to $4.75 per share (as adjusted from time to time
as provided in Section 9, the "Exercise Price"), at any time and from time to
time from and after September 12, 2004 (the "Initial Exercise Date") through
and including March 11, 2009 (the "Expiration Date"), and subject to the
following terms and conditions. This Warrant is one of a series of similar
warrants (the "Warrants") issued pursuant to that certain Securities Purchase
Agreement, dated as of the Original Issue Date, by and among the Company, the
Holder and certain other purchasers listed on Schedule A thereto (the
"Purchase Agreement"), providing for the issuance and sale of Ordinary Shares
and Warrants by the Company to the Holder and such other investors.
1. Definitions. The capitalized terms used herein and not otherwise
defined shall have the meanings set forth below:
"Affiliate" of any specified Person means any other person
or entity which directly or indirectly through one or more intermediaries
controls, is controlled by or is under common control with, such specified
Person. For purposes of this definition, "control" as used with respect to any
person or entity means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Ordinary Shares" means the Ordinary Shares of the Company,
New Israeli Shekel ("NIS") 0.01 par value per share, as constituted on the
Original Issue Date.
"Company Offer" means any tender offer (including exchange
offer), as amended from time to time, made by the Company or any of its
subsidiaries for the purchase (including the acquisition pursuant to an
exchange offer) of all or any portion of the outstanding Ordinary Shares,
except as permitted pursuant to Rule 10b-18 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
"Eligible Market" means any of the New York Stock Exchange,
the American Stock Exchange or Nasdaq.
"Market Price" means, as to any security, (i) if the
principal trading market for such security is an exchange, the average of the
last reported sale prices per share for the last five previous Trading Days in
which a sale was reported, as officially reported on any consolidated tape,
(ii) if clause (i) is not applicable, the average of the closing bid price per
share for the last five previous Trading Days as set forth by Nasdaq or (iii)
if clauses (i) and (ii) are not applicable, the average of the closing bid
price per share for the last five previous Trading Days as set forth in the
National Quotation Bureau sheet listing for such security. Notwithstanding the
foregoing, if there is no reported sales price or closing bid price, as the
case may be, on any of the ten Trading Days preceding the event requiring a
determination of Market Price hereunder, then the Market Price shall be
determined in good faith by resolution of the Board of Directors of the
Company, based on the best information available to it.
"Nasdaq" means the Nasdaq SmallCap Market or Nasdaq National
Market.
"Original Issue Date" means March 11, 2004.
"Other Securities" refers to any share capital (other than
Ordinary Shares) and other securities of the Company or any other Person which
the Holder of this Warrant at any time shall be entitled to receive, or shall
have received, upon the exercise of this Warrant, in lieu of or in addition to
Ordinary Shares, or which at any time shall be issuable or shall have been
issued in exchange for or in replacement of Ordinary Shares or Other
Securities pursuant to Section 9 hereof or otherwise.
"Person" means any court or other federal, state, local or
other governmental authority or other individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
"Registration Statement" shall have the meaning set forth in
the Purchase Agreement.
"Trading Day" means (a) any day on which the Ordinary Shares
are listed or quoted and traded on any Eligible Market or (b) if the Ordinary
Shares are not then quoted and traded on any Eligible Market, then a day on
which trading occurs on Nasdaq (or any successor thereto).
"Transfer Agent" shall mean American Stock Transfer & Trust
Company or such other Person as the Company may appoint from time to time.
"Warrant Shares" shall initially mean Ordinary Shares and,
in addition, may include Other Securities and Distributed Property (as defined
in Section 9(e)) issued or issuable from time to time upon exercise of this
Warrant.
2. Registration of Warrant. The Company shall register this Warrant,
upon records to be maintained by the Company for that purpose (the "Warrant
Register"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent actual notice
to the contrary.
3. Registration of Transfers. The Company shall register the transfer
of any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto as Appendix A duly
completed and signed, to the Company at its address specified herein. Upon any
such registration and transfer, a new warrant in substantially the form of a
Warrant (any such new warrant, a "New Warrant"), evidencing the portion of
this Warrant so transferred shall be issued to the transferee and a New
Warrant evidencing the remaining portion of this Warrant not so transferred,
if any, shall be issued to the transferring Holder. Each new warrant
evidencing the Warrant so transferred shall bear the appropriate restrictive
legend set forth in Section 4(k)(ii) of the Purchase Agreement. The acceptance
of the New Warrant by the transferee thereof shall be deemed the acceptance by
such transferee of all of the rights and obligations of a holder of a Warrant,
and such transferee shall be subject to the terms and conditions of the
Purchase Agreement, including, without limitation, the restrictions on
transfer set forth in Section 4(l) of the Purchase Agreement.
4. Exercise and Duration of Warrant.
(a) This Warrant shall be exercisable by the registered
Holder at any time and from time to time on and after September 12, 2004 to
and including the Expiration Date. At 5:00 P.M., New York City time on the
Expiration Date, the portion of this Warrant not exercised prior thereto shall
be and become void and of no value, regardless of whether this Warrant shall
be returned to the Company.
(b) A Holder may exercise this Warrant by delivering to the
Company (i) an exercise notice, in the form attached hereto as Appendix B (the
"Exercise Notice"), appropriately completed and duly signed, and (ii) payment
of the Exercise Price for the number of Warrant Shares as to which this
Warrant is being exercised (as set forth in Section 4(c) below), and the date
such items are received by the Company is an "Exercise Date." Execution and
delivery of the Exercise Notice shall have the same effect as cancellation of
the original Warrant and issuance of a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares, if any.
(c) The Holder shall pay the Exercise Price (i) in cash, by
certified bank check payable to the order of the Company or by wire transfer
of immediately available funds in accordance with the Company's instructions
or (ii) if at any time on or after the Initial Exercise Date (x) there is no
effective Registration Statement registering the resale of the Warrant Shares
by the Holder and (y) the Market Price exceeds the Exercise Price, by means of
a "cashless exercise", by presenting and surrendering to the Company this
Warrant, in which event the Company shall issue to the Holder the number of
Warrant Shares determined as follows:
X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be
issued to the Holder upon such cashless
exercise;
Y = the number of Warrant Shares with
respect to which this Warrant is being
exercised;
A = the Market Price on the Exercise Date;
and
B = the Exercise Price.
(d) If an exercise of this Warrant is to be made in
connection with a registered public offering or sale of the Company, such
exercise may, at the election of the Holder, be conditioned on the
consummation of the public offering or sale of the Company, in which case such
exercise shall not be deemed effective until the consummation of such
transaction.
(e) Notwithstanding anything to the contrary contained
herein, the number of Ordinary Shares that may be acquired by the Holder upon
any exercise of this Warrant (or otherwise in respect hereof) shall be limited
to the extent necessary to insure that, following such exercise (or other
issuance), the total number of Ordinary Shares then beneficially owned by such
Holder and its Affiliates and any other Persons whose beneficial ownership of
Ordinary Shares would be aggregated with the Holder's for purposes of Section
13(d) of the Exchange Act, does not exceed 4.999% of the total number of
issued and outstanding Ordinary Shares (including for such purpose the
Ordinary Shares issuable upon such exercise). For purposes of the foregoing
sentence, the aggregate number of Ordinary Shares beneficially owned by such
Holder and its Affiliates shall exclude Ordinary Shares which would be
issuable upon (i) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by such Holder and its Affiliates and (ii) exercise
or conversion of the unexercised or unconverted portion of any other
securities of the Company beneficially owned by such Holder and its Affiliates
(including, without limitation, any convertible notes, convertible preferred
stock or warrants) subject to a limitation on conversion or exercise analogous
to the limitation contained herein. Except as set forth in the preceding
sentence, for purposes of this Section, beneficial ownership shall be
determined in accordance with Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder. Each delivery of an Exercise Notice
hereunder will constitute a representation by the Holder that it has evaluated
the limitation set forth in this paragraph and determined that issuance of the
full number of Warrant Shares requested in such Exercise Notice is permitted
under this paragraph. This provision shall not restrict the number of Ordinary
Shares that a Holder may receive or beneficially own in order to determine the
amount of securities or other consideration that such Holder may receive in
the event of a Fundamental Transaction (as defined in Section 9(f)).
5. Delivery of Warrant Shares.
(a) Upon exercise of this Warrant, the Company shall
promptly, but in no event later than the third Trading Day following such
exercise, issue or cause to be issued and deliver or cause to be delivered to
the Holder, in such name or names as the Holder may designate, a certificate
for the Warrant Shares issuable upon such exercise bearing (only if such
legend is required by applicable law) the restrictive legend set forth in
Section 4(k)(i) of the Purchase Agreement. The Holder, or any Person so
designated by the Holder to receive the Warrant Shares, shall be deemed to
have become holder of record of such Warrant Shares as of the Exercise Date.
(b) This Warrant is exercisable, either in its entirety or,
from time to time, for a portion of the number of Warrant Shares. Upon
surrender of this Warrant following one or more partial exercises, the Company
shall issue or cause to be issued, at its expense, a New Warrant evidencing
the right to purchase the remaining number of Warrant Shares.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates
for Ordinary Shares upon exercise of this Warrant shall be made without charge
to the Holder for any issue or transfer tax, withholding tax, transfer agent
fee or other incidental tax or expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the Company;
provided, however, that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the registration of any
certificates for Warrant Shares or Warrant in a name other than that of the
Holder. The Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and in
substitution for this Warrant, a New Warrant, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested.
8. Reservation of Warrant Shares. The Company covenants that it will
at all times reserve and keep available out of the aggregate of its authorized
but unissued and otherwise unreserved Ordinary Shares, solely for the purpose
of enabling it to issue Warrant Shares upon exercise of this Warrant as herein
provided, the number of Warrant Shares which are then issuable and deliverable
upon the exercise of this entire Warrant, free from all taxes, liens, claims,
encumbrances with respect to the issuance of such Warrant Shares and will not
be subject to any pre-emptive rights or similar rights (taking into account
the adjustments and restrictions of Section 9 hereof). The Company covenants
that all Warrant Shares so issuable and deliverable shall, upon issuance and
the payment of the applicable Exercise Price in accordance with the terms
hereof, be duly and validly authorized, issued, fully paid and nonassessable.
The Company will take all such action as may be necessary to assure that such
Ordinary Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any securities
exchange or automated quotation system upon which the Ordinary Shares may be
listed or quoted, as the case may be.
9. Certain Adjustments. The Exercise Price and number of Warrant
Shares issuable upon exercise of this Warrant are subject to adjustment from
time to time as set forth in this Section 9.
(a) Dividends. If the Company, at any time while this
Warrant is outstanding, pays a dividend on its Ordinary Shares payable in
additional Ordinary Shares or otherwise makes a distribution on any class of
share capital that is payable in Ordinary Shares, then in each such case the
Exercise Price shall be multiplied by a fraction, (A) the numerator of which
shall be the number of Ordinary Shares outstanding immediately prior to the
opening of business on the day after the record date for the determination of
shareholders entitled to receive such dividend or distribution and (B) the
denominator of which shall be the number of Ordinary Shares outstanding
immediately after such event. Any adjustment made pursuant to this Section
9(a) shall become effective immediately after the record date for the
determination of shareholders entitled to receive such dividend or
distribution; provided, however, that if such record date shall have been
fixed and such dividend is not fully paid or if such distribution is not fully
made on the date fixed therefor, any such adjustment shall become effective as
of the time of actual payment of such dividends or distribution..
(b) Share Splits. If the Company, at any time while this
Warrant is outstanding, (i) subdivides outstanding Ordinary Shares into a
larger number of shares, or (ii) combines outstanding Ordinary Shares into a
smaller number of shares, then in each such case the Exercise Price shall be
multiplied by a fraction, (A) the numerator of which shall be the number
Ordinary Shares outstanding immediately before such event and (B) the
denominator of which shall be the number of Ordinary Shares outstanding
immediately after such event. Any adjustment pursuant to this Section 9(b)
shall become effective immediately after the effective date of such
subdivision or combination.
(c) Reclassifications. A reclassification of the Ordinary
Shares (other than any such reclassification in connection with a merger or
consolidation to which Section 9(f) applies) into shares of any other class of
shares shall be deemed:
(i) a distribution by the Company to the holders of
its Ordinary Shares of such shares of such other class
of shares for the purposes and within the meaning of this Section 9; and
(ii) if the outstanding Ordinary Shares shall be
changed into a larger or smaller number of Ordinary Shares
as part of such reclassification, such change shall be deemed a subdivision or
combination, as the case may be, of the outstanding Ordinary Shares for the
purposes and within the meaning of Section 9(b).
(d) Self-Tender Offers. In the event, at any time or from
time to time after the Original Issue Date while the Warrants remain
outstanding and unexpired, in whole or in part, a Company Offer shall be made
and expire, then and in each such event the Exercise Price in effect
immediately prior to close of business on the date of the last time (the
"Expiration Time") tenders could have been made pursuant to such Company Offer
shall be decreased by multiplying such Exercise Price by a fraction (not to be
greater than one (1)):
(i) the numerator of which shall be equal to (A)
the product of (1) the Market Price per Ordinary Share on the date of the
Expiration Time and (2) the number of Ordinary Shares outstanding (including
any tendered shares) at the Expiration Time less (B) the fair market value (as
determined in good faith by the Board of Directors of the Company) of the
aggregate consideration payable to shareholders based on the acceptance (up to
any maximum specified in the terms of the Company Offer) of all shares validly
tendered and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any maximum amount provided for in connection with such
Company Offer, being referred to as the "Purchased Shares"); and
(ii) the denominator of which shall be equal to the
product of (A) the Market Price per Ordinary Share on the date of the
Expiration Time and (B) the number of Ordinary Shares outstanding (including
any tendered shares) on the Expiration Time less the number of Purchased
Shares.
Any adjustment under this Section 9(d) shall become
effective immediately prior to the opening of business on the day after the
Expiration Time.
(e) Other Distributions. If the Company, at any time while
this Warrant is outstanding, distributes to holders of Ordinary Shares (i)
evidences of its indebtedness, (ii) any security (other than a distribution of
Ordinary Shares covered by Section 9(a)), (iii) rights or warrants to
subscribe for or purchase any security or (iv) any other asset (in each case,
"Distributed Property"), then in each such case the Exercise Price in effect
immediately prior to the record date fixed for determination of shareholders
entitled to receive such distribution (and the Exercise Price thereafter
applicable) shall be adjusted (effective on and after such record date) to
equal the product of such Exercise Price multiplied by a fraction, (A) the
numerator of which shall be Market Price on such record date less the then
fair market value per share of the Distributed Property distributed in respect
of one outstanding Ordinary Shares, which, if the Distributed Property is
other than cash or marketable securities, shall be as determined in good faith
by the Board of Directors of the Company, and (B) the denominator of which
shall be the Market Price on such record date.
(f) Fundamental Transactions. If, at any time while this
Warrant is outstanding, (i) the Company effects any merger or consolidation of
the Company with or into another Person, (ii) the Company effects any sale of
all or substantially all of its assets in one or a series of related
transactions or (iii) there shall occur any merger of another Person into the
Company whereby the Ordinary Shares are cancelled, converted or reclassified
into or exchanged for other securities, cash or property (in any such case, a
"Fundamental Transaction"), then, as a condition to the consummation of such
Fundamental Transaction, the Company shall (or, in the case of any Fundamental
Transaction in which the Company is not the surviving entity, the Company
shall take all reasonable steps to cause such other Person to) execute and
deliver to each Holder of Warrants a written instrument providing that:
(x) so long as any Warrant remains outstanding on
such terms and subject to such conditions as shall be as nearly equivalent as
may be practicable to the provisions set forth in this Warrant, each Warrant,
upon the exercise thereof at any time on or after the consummation of such
Fundamental Transaction, shall be exercisable into, in lieu of Ordinary Shares
issuable upon such exercise prior to such consummation, the securities or
other property (the "Substituted Property") that would have been received in
connection with such Fundamental Transaction by a holder of the number of
Ordinary Shares into which such Warrant was exercisable immediately prior to
the consummation of such Fundamental Transaction, assuming such holder of
Ordinary Shares:
(A) is not a Person with which the Company
consolidated or into which the Company merged or which merged into the Company
or to which such sale or transfer was made, as the case may be (a "Constituent
Person"), or an Affiliate of a Constituent Person; and
(B) failed to exercise such Holder's
rights of election, if any, as to the kind or amount of securities, cash and
other property receivable in connection with such Fundamental Transaction
(provided, however, that if the kind or amount of securities, cash or other
property receivable in connection with such Fundamental Transaction is not the
same for each Ordinary Share held immediately prior to such Fundamental
Transaction by a Person other than a Constituent Person or an Affiliate
thereof and in respect of which such rights of election shall not have been
exercised (a "Non-Electing Share"), then, for the purposes of this Section
9(f), the kind and amount of securities, cash and other property receivable in
connection with such Fundamental Transaction by each Non-Electing Share shall
be deemed to be the kind and amount so receivable per share by a plurality of
the Non-Electing Shares); and
(y) the rights and obligations of the Company (or,
in the event of a transaction in which the Company is not the surviving
Person, such other Person) and the Holders in respect of Substituted Property
shall be as nearly equivalent as may be practicable to the rights and
obligations of the Company and Holders in respect of Ordinary Shares
hereunder.
Such written instrument shall provide for adjustments which,
for events subsequent to the effective date of such written instrument, shall
be as nearly equivalent as may be practicable to the adjustments provided for
in Section 9. The above provisions of this Section 9(f) shall similarly apply
to successive Fundamental Transactions.
(g) Adjustment of Exercise Price. Simultaneously with any
adjustment to the Exercise Price pursuant to paragraphs (a) through (e) of
this Section 9, the number of Warrant Shares that may be purchased upon
exercise of this Warrant shall be increased or decreased proportionately, so
that after such adjustment the aggregate Exercise Price payable hereunder for
the increased or decreased number of Warrant Shares shall be the same as the
aggregate Exercise Price payable for the Warrant Shares immediately prior to
such adjustment.
(h) Calculations. All calculations under this Section 9
shall be made to the nearest cent or the nearest 1/100th of a share, as
applicable. The number of Ordinary Shares outstanding at any given time shall
not include shares owned or held by or for the account of the Company, and the
disposition of any such shares shall be considered an issue or sale of
Ordinary Shares.
(i) Adjustments. Notwithstanding any provision of this
Section 9, no adjustment of the Exercise Price shall be required if such
adjustment is less than $0.01; provided, however, that any adjustments which
by reason of this Section 9(i) are not required to be made shall be carried
forward and taken into account for purposes of any subsequent adjustment.
(j) Notice of Adjustments. Upon the occurrence of each
adjustment pursuant to this Section 9, the Company will promptly deliver to
the Holder a certificate executed by the Company's Chief Financial Officer
setting forth, in reasonable detail, the event requiring such adjustment and
the method by which such adjustment was calculated, the adjusted Exercise
Price and the adjusted number or type of Warrant Shares or other securities
issuable upon exercise of this Warrant (as applicable). The Company will
retain at its office copies of all such certificates and cause the same to be
available for inspection at said office during normal business hours by the
Holder or any prospective purchaser of the Warrant designated by the Holder.
(k) Notice of Corporate Events. If the Company (i) declares
a dividend or any other distribution of cash, securities or other property in
respect of its Ordinary Shares, including, without limitation, any granting of
rights or warrants to subscribe for or purchase any share capital of the
Company or any subsidiary of the Company, (ii) authorizes, approves, enters
into any agreement contemplating, or solicits shareholder approval for, any
Fundamental Transaction or (iii) authorizes the voluntary dissolution,
liquidation or winding up of the affairs of the Company, then the Company
shall deliver to the Holder a notice describing the material terms and
conditions of such transaction at least 15 calendar days prior to the
applicable record or effective date on which a Person would need to hold
Ordinary Shares in order to participate in or vote with respect to such
transaction; provided, however, that the failure to deliver such notice or any
defect therein shall not affect the validity of the corporate action required
to be described in such notice.
10. Fractional Shares. The Company shall not be required to issue or
cause to be issued fractional Warrant Shares on the exercise of this Warrant.
If any fraction of a Warrant Share would, except for the provisions of this
Section, be issuable upon exercise of this Warrant, the Company shall make a
cash payment to the Holder equal to (a) such fraction multiplied by (b) the
Market Price on the Exercise Date of one full Warrant Share.
11. Restricted Securities. The Holder represents and warrants that it
(i) understands that the Warrant and the Warrant Shares have not been
registered under the Securities Act and (ii) understands the restrictions set
forth on the legend printed on the face of this Warrant.
12. Listing on Securities Exchanges. In furtherance and not in
limitation of any other provision of this Warrant, if the Company at any time
shall list any Ordinary Shares on any Eligible Market, the Company will, at
its expense, simultaneously list the Warrant Shares (and maintain such
listing) on such Eligible Market, upon official notice of issuance following
the exercise of this Warrant; and the Company will so list, register and
maintain such listing on any Eligible Market any Other Securities, if and at
the time that any securities of like class or similar type shall be listed on
such Eligible Market by the Company.
12. Remedies. The Company stipulates that the remedies at law of the
Holder of this Warrant in the event of any default or threatened default by
the Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any
agreement contained herein or by an injunction against a violation of any of
the terms hereof or otherwise.
13. Notices. Any and all notices or other communications or
deliveries hereunder (including without limitation any Exercise Notice) shall
be in writing and shall be mailed by certified mail, return receipt requested,
or by a nationally recognized courier service or delivered (in person or by
facsimile), against receipt to the party to whom such notice or other
communication is to be given. The address for such notices or communications
shall be as set forth in the Purchase Agreement entered into by the Holder and
the Company. Any notice or other communication given by means permitted by
this Section 13 shall be deemed given at the time of receipt thereof.
14. Warrant Agent. The Company shall serve as warrant agent under
this Warrant. Upon 30 days' notice to the Holder, the Company may appoint a
new warrant agent. Any Person into which any new warrant agent may be merged,
any Person resulting from any consolidation to which any new warrant agent
shall be a party or any Person to which any new warrant agent transfers
substantially all of its corporate trust or shareholders services business
shall be a successor warrant agent under this Warrant without any further act.
Any such successor warrant agent shall promptly cause notice of its succession
as warrant agent to be mailed (by first class mail, postage prepaid) to the
Holder at the Holder's last address as shown on the Warrant Register.
15. Miscellaneous. (a) This Warrant may be assigned by the Holder.
This Warrant may not be assigned by the Company, except to a successor in the
event of a Fundamental Transaction. This Warrant shall be binding on and inure
to the benefit of the parties hereto and their respective successors and
assigns. Subject to the preceding sentence, nothing in this Warrant shall be
construed to give to any Person other than the Company and the Holder any
legal or equitable right, remedy or cause of action under this Warrant. This
Warrant may be amended only in writing signed by the Company and the Holder
and their successors and assigns.
(b) The Company will not, by amendment of its governing
documents or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary
action, avoid or 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 such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder against
impairment. Without limiting the generality of the foregoing, the Company (i)
will not increase the par value of any Warrant Shares above the amount payable
therefor upon exercise thereof, (ii) will take all such action as may be
reasonably necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares on the exercise of
this Warrant, free from all taxes, liens, claims and encumbrances and (iii)
will not close its shareholder books or records in any manner which interferes
with the timely exercise of this Warrant.
(c) This Warrant shall be governed by and construed and
enforced in accordance with the laws of the State of New York without regard
to conflicts of laws principles thereof. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and Federal courts sitting in the
City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein (including with respect to the enforcement of the
Purchase Agreement), and hereby irrevocably waives, and agrees not to assert
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Warrant and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. THE PARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
(d) Neither party shall be deemed in default of any
provision of this Warrant, to the extent that performance of its obligations
or attempts to cure a breach hereof are delayed or prevented by any event
reasonably beyond the control of such party, including, without limitation,
war, hostilities, acts of terrorism, revolution, riot, civil commotion,
national emergency, strike, lockout, unavailability of supplies, epidemic,
fire, flood, earthquake, force of nature, explosion, embargo, or any other Act
of God, or any law, proclamation, regulation, ordinance, or other act or order
of any court, government or governmental agency, provided that such party
gives the other party written notice thereof promptly upon discovery thereof
and uses reasonable efforts to cure or mitigate the delay or failure to
perform.
(e) The headings herein are for convenience only, do not
constitute a part of this Warrant and shall not be deemed to limit or affect
any of the provisions hereof.
(f) In case any one or more of the provisions of this
Warrant shall be deemed invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Warrant shall
not in any way be affected or impaired thereby and the parties will attempt in
good faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
VOCALTEC COMMUNICATIONS LTD.
By:
--------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
Acknowledged and agreed:
----------------------------
Holder
By:
-----------------------------------------
Name:
Title:
APPENDIX A
----------
FORM OF ASSIGNMENT
(to be completed and signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________________ the right represented
by the within Warrant to purchase _____________ Ordinary Shares of VocalTec
Communications Ltd. to which the within Warrant relates and appoints
__________________________ attorney to transfer said right on the books of
VocalTec Communications Ltd. with full power of substitution in the premises.
Dated:____________ _________________________________________
(Signature must conform in all respects to
name of Holder as specified on face of the
Warrant)
Address of Transferee:
_________________________________________
_________________________________________
_________________________________________
In the presence of:
__________________________________
APPENDIX B
----------
FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase Ordinary Shares
under the foregoing Warrant)
To: VocalTec Communications Ltd.
The undersigned is the Holder of Warrant No. 2004-__ (the "Warrant") issued by
VocalTec Communications Ltd., an Israeli corporation (the "Company").
Capitalized terms used herein and not otherwise defined have the respective
meanings set forth in the Warrant.
1. The Warrant is currently exercisable to purchase a total of _________
Warrant Shares.
2. The undersigned Holder hereby exercises its right to purchase ________
Warrant Shares pursuant to the Warrant.
3. The Holder intends that payment of the Exercise Price shall be made
as (check one):
Cash Exercise _______
Cashless Exercise _______
4. If the Holder has elected a Cash Exercise, the Holder shall pay the
sum of $________ to the Company in accordance with the terms of the
Warrant.
5. If the Holder has elected a Cashless Exercise, a certificate shall be
issued to the Holder for the number of shares equal to the whole
number portion of the product of the calculation set forth below,
which is ___________. The Company shall pay a cash adjustment in
respect of the fractional portion of the product of the calculation
set forth below in an amount equal to the product of the fractional
portion of such product and the Market Price on the Exercise Day,
which product is
------------.
X = Y[(A-B)/A]
X = the number of Warrant Shares to be issued to the Holder.
Number of Warrant Shares being exercised: _____________ ("Y").
Market Price on the Exercise Day: _____________ ("A").
Exercise Price: _____________ ("B")
6. Pursuant to this exercise, the Company shall deliver to the Holder
Warrant Shares in accordance with the terms of the Warrant.
7. Following this exercise, the Warrant shall be exercisable to purchase
a total of __________ Warrant Shares.
Dated: _________ Name of Holder:
(Print)_____________________________
By:_________________________________
Name:_______________________________
Title:______________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant)
