Exhibit 10.34
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. M-_____ Date: June 14, 2001
Warrant Expiration Date: June 14, 2004
CLASS M STOCK PURCHASE WARRANT
TO PURCHASE SHARES OF COMMON STOCK OF
VOICE MOBILITY INTERNATIONAL, INC.
THIS CLASS M 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 June 14, 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
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: June 14, 2001
VOICE MOBILITY INTERNATIONAL, INC.
By:
----------------------------
Name: Xxxxx Xxxxxx
----------------------------
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:_____________ INVESTOR
By:
--------------------------------
Name:
------------------------------
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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