EXHIBIT 10.26
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,
AND NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT AND PURSUANT TO AN EFFECTIVE REGISTRATION OR QUALIFICATION UNDER APPLICABLE
STATE SECURITIES LAWS, OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND/OR
QUALIFICATION, AND, IF AN EXEMPTION SHALL BE APPLICABLE, THE HOLDER SHALL HAVE
DELIVERED AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION
AND/OR QUALIFICATION IS NOT REQUIRED.
VOID AFTER 5:00 P.M. EASTERN TIME ON APRIL 1, 2007.
WARRANT TO PURCHASE COMMON STOCK
OF
UNIFI COMMUNICATIONS, INC.
FOR VALUE RECEIVED, UNIFI COMMUNICATIONS, INC., a Delaware corporation,
(the "Company") hereby grants to Control Data Systems, Inc., or its permitted
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assigns, the right to purchase from the Company, at any time or from time to
time commencing April 1, 1997, and prior to 5:00 P.M., Eastern Time, on April 1,
2007, up to a total of Fifty Six Thousand Four Hundred Six (56,406) (subject to
adjustment as provided in Section 3 below) fully paid and nonassessable shares
of the Common Stock, par value $.01 per share, of the Company for an aggregate
purchase price of Fourteen Thousand One Hundred One Dollars and Fifty Cents
($14,101.50) (computed on the basis of $0.25 per share).
Hereinafter,
(i) said Common Stock, together with any other equity securities which
may be issued by the Company with respect thereto or in substitution
therefor, is referred to as the "Common Stock,"
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(ii) the shares of the Common Stock purchasable hereunder are referred
to as the "Warrant Shares,"
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(iii) the aggregate purchase price payable hereunder for the Warrant
Shares is referred to as the "Aggregate Warrant Price,"
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(iv) the price payable hereunder for each of the Warrant Shares is
referred to as the "Per Share Warrant Price,"
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(v) this Warrant, and all warrants hereafter issued in exchange or
substitution for this Warrant are referred to as the "Warrant" and
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(vi) the holder of this Warrant is referred to as the "Holder."
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1. Exercise of Warrant. This Warrant may be exercised, in whole at any
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time to time, commencing April 1, 1997, and prior to 5:00 P.M., Eastern Time on
April 1, 2007, by the Holder of this Warrant by the surrender of this Warrant
(with the subscription form at the end hereof duly executed) at the address set
forth in Subsection 8(a) hereof, together with proper payment of the Aggregate
Warrant Price, or the proportionate part thereof if this Warrant is exercised in
part. The number of Warrant Shares for which this Warrant may be exercised (the
"Exercise Rate") shall be subject to adjustment from time to time as set forth
in Section 3 below. Payment for Warrant Shares shall be made by (i) certified
or official bank check payable to the order of the Company, (ii) wire transfer
of funds to the account of the Company, (iii) by surrendering principal
indebtedness of the Company evidences by that certain 14% Convertible Term Note
of the Company dated April 1, 1997 issued to Control Data Systems, Inc. in an
amount equal to the Aggregate Warrant Price, or the proportionate part thereof
if this Warrant is exercised in part, or (iv) by surrendering, in a "net
exercise," Warrant Shares with an aggregate Current Market Value (as defined
below) equal to the Aggregate Warrant Price, or the proportionate part thereof
if this Warrant is exercised in part. If this Warrant is exercised in part, the
Holder is entitled to receive a new Warrant covering the number of Warrant
Shares in respect of which this Warrant has not been exercised and setting forth
the proportionate part of the Aggregate Warrant Price applicable to such Warrant
Shares. Upon such surrender of this Warrant, the Company will issue a
certificate or certificates in the name of the Holder for the number of shares
of the Common Stock to which the Holder shall be entitled.
No Warrant granted herein shall be exercisable after 5:00 p.m. Eastern Time
on April 1, 2007.
2. Reservation of IA@xxxxxx Shares. The Company agrees that, prior to
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the expiration of this Warrant, the Company will at all times have authorized
and in reserve, and will keep available, solely for issuance and delivery upon
the exercise of this Warrant, the shares of the Common Stock as from time to
time shall be receivable upon the exercise of this Warrant.
3. Anti-Dilution Provisions.
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(a) Adjustment for Change in Capital Stock. If, after the date hereof, the
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Company:
(i) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(iii) combines its outstanding shares of Common Stock into a smaller
number of shares;
(iv) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock (as defined below) (other than Common Stock or
rights, warrants, or options for its Common Stock to the extent such
issuance or distribution is covered by this Section 3); or
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(v) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants or options for its Common
Stock);
then the Exercise Rate in effect immediately prior to such action shall be
adjusted that the Holder of this Warrant thereafter exercised may receive the
number of shares of Capital Stock of the Company which such Holder would have
owned immediately following ch action if such Holder had exercised this Warrant
immediately prior to such action or mediates prior to the record date applicable
thereto, if any.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification. In the event
that such dividend or distribution is not so paid or made or such subdivision,
combination or reclassification is not effected, the exercise Rate shall again
be adjusted to be the Exercise Rate which would then be in effect if such record
date or effective date had not been so fixed.
If after an adjustment the Holder of this Warrant upon exercise of such
Warrant may receive shares of two or more classes of Capital Stock of the
Company, the Exercise Rate hall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to ny such class of Capital Stock as
is contemplated by this Section 3 with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Section 3.
(b) Adjustment for Rights Issue or Sale of Common Stock Below Current
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Market Value. If, at any time or from time to time, after the date hereof, the
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Company i) distributes any rights, warrants or options to holders of Common
Stock entitling them to purchase shares of Common Stock (other than securities
of the Company pursuant to "poison pills to the extent such issuance or
distribution is covered by paragraph (h) below) at a price per hare less than
the Current Market Value as of the Time of Determination (as defined paragraph
(p) of this Section 3) or (ii) sells any Common Stock or any securities
convertible into r exchangeable or exercisable for the Common Stock (other than
pursuant to (1) the exercise of he Warrant, (2) any options, warrants or rights
outstanding as of the date of this Agreement, 3) without limiting any options,
warrants or rights outstanding pursuant to the immediately receding clause (2),
any directors' plans and employee stock option or purchase plans approved by the
Company's Board of Directors, (4) the issuance of Common Stock or options
warrants or rights to persons or entities providing financing to the Company or
any of its subsidiaries as a condition to the provision of such financing, (5)
any registered public offering or (6) any security convertible into, or
exchangeable or exercisable for, the Common Stock as to which the issuance
thereof has previously been the subject of any required adjustment pursuant to
this Section 3) at a price per share less than the Current Market Value
immediately prior to any adjustment required pursuant to this Section 3, the
Exercise Rate shall be adjusted in accordance with the formula:
E = Ex (O+N)
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(0 + (N x P/M))
where:
E = the adjusted Exercise Rate;
E = the current Exercise Rate;
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O = the number of shares of Common Stock outstanding on the record date
for the distribution to which this paragraph (b) is being applied or on the date
of sale of Common Lock at a price per share less than the Current Market Value
immediately prior to any adjustment to which this paragraph (b) applies, as the
case may be;
N = the number of additional shares of Common Stock issuable upon exercise
of all rights, warrants and options so distributed or the number of shares of
Common Stock so sold or the maximum stated number of shares of Common Stock
issuable upon the conversion, change, or exercise of any such convertible,
exchangeable or exercisable securities, as the case may be;
P = the price per share of the additional shares of Common Stock upon the
exercise of any such rights, options or warrants so distributed or pursuant to
any such convertible, exchangeable or exercisable securities so sold or the sale
price of the shares so sold, as the case may be; and
M = the Current Market Value as of the Time of Determination or at the
time of sale, as the case may be, minus, with respect to a distribution of
rights, warrants or options, in case any other distribution has occurred to
which paragraph (a)(iv) applies or (ii) any other distribution has occurred to
which paragraph (c) applies, and with respect Lo which, in either case, (x) the
record date shall occur on or before the record date for the distribution to
which is paragraph (b) applies and (y) the Ex-Dividend Time shall occur on or
after the date of the time of Determination for the distribution to which this
paragraph (b) applies, the fair market value (on the record date for the
distribution to which this paragraph (b) applies) of (1) the capital Stock of
the Company distributed in respect of each share of Common Stock in such
paragraph (a)(iv) distribution and (2) the assets of the Company or debt
securities or any rights, warrants or options to purchase securities of the
Company distributed in respect of each share of Common Stock in such paragraph
(c) distribution.
The Board of Directors of the Company shall reasonably and in good faith
determine fair market values for the purposes of this paragraph (b), which
determination shall be conclusive absent manifest error.
The adjustment shall become effective immediately after the record date for
the determination of stockholders entitled to receive the rights, warrants or
options to which this paragraph (b) applies or upon consummation of the sale of
Common Stock, as the case may be. o the extent that shares of Common Stock are
not delivered after the expiration of such rights r warrants, the Exercise Rate
shall be readjusted to the Exercise Rate which would otherwise in effect had the
adjustment made upon the issuance of such rights or warrants been made the basis
of delivery of only the number of shares of Common Stock actually delivered. In
ts or warrants are not so issued, the Exercise Rate shall again be adjusted to
be the Exercise Rate which would then be in effect if such date fixed for
determination of stockholders entitled to receive such rights or warrants had
not been so fixed.
No adjustment shall be made under this paragraph (b) if the application of
the formula stated above in this paragraph (b) would result in a value of E'
that is lower than the value of E.
(c) Adjustment for Other Distributions. If, after the date hereof, the
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Company distributes to holders of its Common Stock any of its assets or debt
securities or any rights, warrants, or options to purchase Common Stock of the
Company, including securities or sh, but excluding (i) distributions that would
be permitted by the debt agreements (including dentures) and (ii) distributions
of Capital Stock referred to in paragraph (a) and distributions rights, warrants
or options referred to in paragraph (b), the Exercise Rate shall be adjusted in
accordance with the formula:
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E = E x M
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M-F
where:
E = the adjusted Exercise Rate;
E = the current Exercise Rate;
M = the Current Market Value, minus in case any other distribution has
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occurred to which paragraph (a) (iv) applies, with respect to which (i) the
record date shall occur on or before the record date for the distribution to
which this paragraph (c) applies and (ii) the Exdividend Time shall occur on or
after the date of the Time of Determination for the distribution which this
paragraph (c) applies, the fair market value (on the record date for the
distribution to which this paragraph (c) applies) of any Capital Stock of the
Company distributed in respect of each share of Common Stock in such paragraph
(a) (iv) distribution; d
F = the fair market value (on the record date for the distribution to
which this paragraph (c) applies) of the assets, securities, rights, warrants or
options to be distributed in respect of each share of Common Stock in the
distribution to which this paragraph (c) is being applied (including, in the
case of cash dividends or other cash distributions giving rise to an adjustment,
all such cash distributed concurrently).
The Board of Directors of the Company shall reasonably and in good faith
determine by a board resolution, the fair market value of all property (other
than cash) distributed for the purposes of this paragraph (c).
The adjustment shall become effective immediately after the record date for
the termination of stockholders entitled to receive the distributions to which
this paragraph (c) applies. in the event that such distribution is not so made,
the Exercise Rate shall again be used to be the Exercise Rate which would then
be in effect if such record date had not been fixed.
In the event that, with respect to any distribution to which this paragraph
(c) would otherwise apply, "F" is equal to or greater than "M", then the
adjustment provided by is paragraph (c) shall not be made and in lieu thereof
the provisions of paragraph (h) shall apply to such distribution.
(d) When Adjustment May Be Deferred. No adjustment in the Exercise Rate
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need be made unless the adjustment would require a change of at least 1.0% in
the Exercise Rate. Any adjustments that are not made shall be carried forward
and taken into count in any subsequent adjustment. However, with respect to a
dividend of the Company's Capital Stock (or rights to acquire such Capital
Stock) adjustments can be deferred only until, and must be made by, the earlier
of (i) three years from the date of such stock dividend and (ii) e date as of
which the aggregate stock dividends for which adjustments have not been made
total at least 1.0% of the then issued and outstanding Common Stock with respect
to which such stock dividends were distributed.
All calculations under this Section 3 shall be made to the nearest 1/1000th
of a share.
(e) When No Adjustment Required. No adjustment need be made for rights to
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purchase Common Stock pursuant to a Company plan for reinvestment of dividends
or interest.
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No adjustment need be made for a change in the par value or no par value of
the Common Stock.
(f) Notice of Adjustment. Whenever the Exercise Rate is adjusted, the
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Company shall promptly mail to the Holder of this Warrant at the address
appearing in Section 8(b) below a notice of the adjustment.
(g) Notice of Certain Transactions. If:
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(i) the Company takes any action that would require an adjustment in
the Exercise Rate pursuant to paragraphs (a), (b) or (c) (unless no
adjustment is to occur pursuant to paragraph (e)); or
(ii) the Company takes any action that would require a supplemental
warrant agreement pursuant to paragraph (h); or
(iii) there is a liquidation or dissolution of the Company;
then the Company shall mail to the Holder of this Warrant at the address
appearing in Section b) hereof a notice stating the proposed record date for a
dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, sale, merger, binding share
exchange, transfer, liquidation or dissolution, as the case may be. The Company
shall file and give the notice at least 15 days before such date. Failure to
file or give the notice or any defect in it shall not affect the validity of the
transaction.
(h) Reorganization of Company; Special Distributions. If the Company, in a
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single transaction or through a series of related transactions, consolidates
with r merges with or into any other person or transfers (by lease, assignment,
sale or otherwise) all r substantially all of its properties and assets to
another person or group of affiliated persons there than a sale of all or
substantially all of the assets of the Company in a transaction in which the
holders of Common Stock immediately prior to such transaction do not receive
securities, cash, or other assets of the Company or any other person) or is a
party to a merger or binding share exchange which reclassifies or changes its
outstanding Common Stock, the company covenants that prior to entering into such
transaction, the person obligated to deliver securities, cash or other assets
upon exercise of this Warrant will enter into a supplemental xxxxxx agreement.
If the issuer of securities deliverable upon exercise of this Warrant is an
affiliate of the successor Company, that issuer shall join in the supplemental
warrant agreement.
The supplemental warrant agreement shall provide that the Holder of this
xxxxxx may exercise it for the kind and amount of securities, cash or other
assets which such older would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had exercised this
Warrant immediately before the effective ate of the transaction, assuming (to
the extent applicable) that such Holder (i) was not a constituent person or an
affiliate of a constituent person to such transaction; and (ii) made no
selection with respect thereto. The supplemental warrant agreement shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 3. The successor
Company shall mail to the Holder of this Warrant at the address appearing in
Section 8(b) below a notice briefly describing the supplemental Warrant
agreement.
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If the Company makes a distribution to all holders of its Common Stock of
any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Company that, but for the provisions of the last
paragraph of paragraph (c), would result in an adjustment in the Exercise Rate
pursuant to the provisions of paragraph (c), then, from and after the record
date for determining the holders of Common Stock entitled to receive the
distribution, the Holder of this Warrant that exercises such Warrant in
accordance with its rms will upon such exercise be entitled to receive, in
addition to the Warrant Shares into which this Warrant is exercisable, the kind
and amount of securities, cash or other assets comprising the distribution that
such Holder would have received if such Holder had exercised is Warrant
immediately prior to the record date for determining the holders of Common Stock
entitled to receive the distribution (whether or not this Warrant was then
exercisable hereunder).
If this paragraph (h) applies, neither paragraph (a), (b), (c) nor (d)
shall apply.
(1) Adjustment for Tax Purposes. The Company may make such creases in the
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Exercise Rate, in addition to those otherwise required by this Section, as it
insiders to be advisable in order that any event treated for Federal income tax
purposes as a dividend of stock or stock rights shall not be taxable to the
recipients.
(j) Specificity of Adjustment. Irrespective of any adjustments in the
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number or kind of shares purchasable upon the exercise of this Warrant, Warrant
Certificates heretofore or thereafter issued may continue to express the same
number and kind of Warrant Shares as are stated on this Warrant Certificate.
(k) Adjustments to Par Value. Subject to receiving shareholder approval,
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the Company shall make such adjustments to the par value of the Common Stock in
order that, upon exercise of this Warrant, the Warrant Shares will be fully paid
and nonassessable.
(l) Voluntary Adjustment. The Company from time to time may increase the
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Exercise Rate by any number and for any period of time (provided that such
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period not less than 20 Business Days). Whenever the Exercise Rate is so
increased, the Company all mail to the Holder at the address appearing in
Section 8(b) a notice of the increase. The Company shall give the notice at
least 15 days before the date the increased Exercise Rate takes effect. The
notice shall state the increased Exercise Rate and the period it will be in
effect. A voluntary increase in the Exercise Rate does not change or adjust the
Exercise Rate otherwise in effect as determined by this Section 3.
(m) No other Adjustment For Dividends. Except as provided in this Section
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3, no payment or adjustment will be made for dividends on any Common Stock.
(n) Priority of Adjustments. If this Section 3 requires adjustments to
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Exercise Rate under more than one of paragraphs (a)(iv), (b) or (c), and the
record dates for the distributions giving rise to such adjustments shall occur
on the same date, then such adjustments shall be made by applying, first, the
provisions of paragraph (a), second, the revisions of paragraph (c) and, third,
the provisions of paragraph (b).
(o) Multiple Adjustments. After an adjustment to the Exercise Rate rider
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this Section 3, any subsequent event requiring an adjustment under this Section
3 shall cause an adjustment to the Exercise Rate as so adjusted.
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(p) Definitions. "Capital Stock" means, with respect to any corporation,
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any and all shares, interests, rights to purchase, warrants, options,
participations r other equivalents of or interests (however designated) in stock
issued by that corporation.
"Current Market Value" per share of Common Stock or of any other Securities
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at any date shall be (1) if the security is not registered under the Exchange
Act, (i) the value of the security determined in good faith by the Company's
Board of Directors, based on the most recently completed arm's length
transaction between the Company and a person other than an affiliate of the
Company, or (2) if the security is registered under the Exchange Act, the
average of the daily closing bid prices for each Business Day during the period
commencing 15 Business Days before such date and ending on the date one day
prior to such date or, if the security has been registered under the Exchange
Act for less than 15 consecutive Business Days before such date, then the
average of the daily closing bid prices for all of the Business Days before
such, date for which daily Closing bidprices are available. If the market price
is not determinable for at least 10 Business Days in such period, the Current
Market Value of the security shall be determined as if the security was not
registered under the Exchange Act.
"Time of Determination" means the time and date of the earlier of (i) the
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determination of stockholders entitled to receive rights, warrants, or options
or a distribution, each case, to which paragraphs (b) and (c) apply and (ii) the
time ("Ex-Dividend Time") immediately prior to the commencement of "ex-dividend"
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trading for such rights, warrants or distribution on such national or regional
exchange or market on which the Common Stock is enlisted or quoted.
(q) Notice. If the Board of Directors of the Company shall declare any
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dividend or other distribution in cash with respect to the Common Stock, other
than out of earned surplus, the Company shall mail notice thereof to the Holder
not less than 15 days prior the record date fixed for determining shareholders
entitled to participate in such dividend or other distribution.
4. Fully Paid Stock; Taxes. The Company agrees that the shares of the
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Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and non-assessable, and not
subject to preemptive rights, and the Company will take all such actions as may
be necessary to assure that the par value or stated value, if any, per hare of
the Common Stock is at all times equal to or less than the then Per Share
Warrant Price. The Company further covenants and agrees that it will pay, when
due and payable, any and all federal and state stamp, original issue or similar
taxes that may be payable in respect of the xxx of any Warrant Share or
certificate therefor.
5. Transfer.
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(a) Securities Laws. Neither this Warrant nor the Warrant Shares suable
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upon the exercise hereof have been registered under the Securities Act of 1933,
as mended (the "Securities Act"), or under any state securities laws and unless
so registered may not be transferred, sold, pledged, hypothecated or otherwise
disposed of unless an exemption rom such registration is available. In the
event the Holder desires to transfer this Warrant or any of the Warrant Shares
issued, the Holder must give the Company prior written notice of such proposed
transfer including the name and address of the proposed transferee. Such
transfer may be made only either (i) upon issuance by the Securities and
Exchange Commission the "Commission") of a ruling, interpretation, opinion or
"no action letter" based upon facts resented to said commission, or (ii) upon
receipt by the Company of an opinion of counsel to the Holder, reasonably
acceptable to the Company both as to
8
such counsel and as to such pinion, in either case to the effect that the
proposed transfer will not violate the provisions of the Securities Act, or the
rules and regulations promulgated under such act, or in the case of clause (ii)
above, to the, effect that the Warrant or Warrant Shares to be sold or
transferred has been registered under the Securities Act and that there is in
effect a current prospectus meeting e requirements of Subsection 10(a) of the
Securities Act that is being or will be delivered to e purchaser or transferee
at or prior to the time of delivery of the certificates evidencing the xxxxxx or
Warrant Stock to be sold or transferred.
(b) Lock-Up Agreements with Underwriters. In the event of a public
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offering of the Company's securities, the Holder agrees to enter into an
agreement with the underwriter or underwriter's representative for such offering
restricting the sale, transfer or her disposition of this Warrant or the Warrant
Shares to the extent that such agreement is required to be executed by the
underwriter or the underwriter's representative.
(c) Conditions to Transfer. Prior to any such proposed transfer, and a
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condition thereto, if such transfer is not made pursuant Lo an effective
registration statement under the Securities Act, the Holder will, if requested
by the Company, deliver to the Company (i) an agreement by the proposed
transferee to the impression of the restrictive vestment legend set forth herein
on the certificate or certificates representing the securities required by such
transferee, (ii) an agreement by such transferee that the Company may place a
top transfer order" with its transfer a ent or registrar, and (iii) an agreement
by the transferee indemnify the Company to the same extent as set forth in the
next succeeding paragraph.
(d) Indemnity. The Holder acknowledges that the Holder understands the
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meaning and legal consequences of this Section 5, and the Holder hereby agrees
to indemnify and hold harmless the Company, its representatives and each officer
and director thereof from and against any and all loss, damage or liability
(including all attorneys fees and costs incurred in enforcing this indemnity
provision) due to or arising out of (a) the accuracy of any representation or
the breach of any warranty of the Holder contained in, or v other breach of,
this Warrant, (b) any transfer of any of the Warrant or the Warrant Shares
violation of the Securities Act or the rules and regulations promulgated under
such act, (c) y transfer of the Warrant or any of the Warrant Shares not in
accordance with this Warrant or any untrue statement or omission to state any
material fact in connection with the estment representations or with respect to
the facts and representations supplied by the older to counsel upon which its
opinion as to a proposed transfer shall have been based.
(e) Transfer. Except as restricted hereby, this Warrant and the xxxxxx
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Shares issued may be transferred by the Holder in whole or in part at any time
or from me to time. Upon surrender of this Warrant to the Company or at the
office of its stock transfer agent, if any, with assignment documentation duly
executed and funds sufficient to pay any transfer tax, and upon compliance with
the foregoing provisions, the Company shall, without charge, execute and deliver
a new Warrant in the name of the assignee named in such strument of assignment,
and this Warrant shall promptly be canceled. Any assignment, transfer, pledge,
hypothecation or other disposition of this Warrant attempted contrary to the
provisions of this Warrant, or any levy of execution, attachment or other
process attempted upon the Warrant, shall be null and void and without effect.
(f) Legend and Stop Transfer Orders. Unless the Warrant Shares ave been
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registered under the Securities Act, upon exercise of any part of the Warrant
and the issuance of any of the shares of Warrant Shares, the Company shall
instruct its transfer agent to enter stop transfer orders
9
with respect to such shares, and all certificates representing Warrant ares
shall bear on the face thereof substantially the following legend, insofar as is
consistent with Delaware law:
"The shares of common stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not be
sold, offered for sale, assigned, transferred or otherwise disposed of
unless registered pursuant to the provisions of that Act or an opinion of
counsel to the Company is obtained stating that such disposition is in
compliance with an available exemption from such registration."
6. Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the
---------------------
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder new Warrant of like date, tenor and
denomination.
7. Warrant Holder Not A Shareholder. Except as otherwise specifically
--------------------------------
provided herein, this Warrant does not confer upon the Holder any right to vote
or to consent or receive notice as a shareholder of the Company, as such, in
respect of any matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
8. Communications. No notice or other communication under this Warrant
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all be effective unless the same is in writing and is delivered personally,
mailed by first-class mail, postage prepaid, or mailed by nationally recognized
overnight courier (e.g. Federal Express), addressed to:
(a) the Company at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000,
attn: Counsel, or such other address as the Company has designated in writing to
the Holder, or
(b) the Holder at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx
00000-0000, or such other address as the Holder has designated in writing to the
Company.
Any such notice shall be effective upon receipt.
9. Headings. The headings of this Warrant have been inserted as a matter
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of convenience and shall not affect the construction hereof.
10. Applicable Law. This Warrant shall be governed by and construed in
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accordance with the internal substantive laws of the State of Delaware.
IN WITNESS WHEREOF, UNIFI COMMUNICATIONS, INC., has caused this Warrant to
be signed by its duly authorized representative and its corporate seal to be
hereunto affixed as of the 1st day of April, 1997.
ATTEST: UNIFI COMMUNICATIONS, INC.
____________________ By: _______________________________
Name:
Title:
10
SUBSCRIPTION
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The undersigned, ____________________, pursuant to the provisions of the
foregoing Warrant, hereby agrees to subscribe for the purchase of __________
shares of the Common Stock of UNIFI COMMUNICATIONS, INC., covered by said
Warrant, and makes payment therefor in full at the price per share provided by
said Warrant.
Dated: ______________________ Signature:
______________________
Address:
______________________
______________________
ASSIGNMENT
----------
FOR VALUE RECEIVED _________________ hereby sells, assigns and transfers
unto ________________ the foregoing Warrant and all rights evidenced thereby,
and does irrevocably constitute and appoint ______________ attorney to transfer
said Warrant on the books of UNIFI Communications, INC.
Dated: ______________________ Signature:
______________________
Address:
______________________
______________________
PARTIAL ASSIGNMENT
------------------
FOR VALUE RECEIVED _________________ hereby assigns and transfers unto
_______________ the right to purchase ___________ shares of the Common Stock of
UNIFI COMMUNICATIONS, INC. by the foregoing Warrant, and a proportionate part of
said Warrant and the rights evidenced hereby, and does irrevocably constitute
and appoint attorney to transfer that part of said Warrant on the books of UNIFI
COMMUNICATIONS, INC.
Dated: ______________________ Signature:
______________________
Address:
______________________
______________________
11
