EXHIBIT 10.2
FORM OF WARRANT
TO SUBSCRIBE FOR AND PURCHASE COMMON STOCK OF
TELIDENT, INC.
DATED
APRIL 13, 1998
THIS CERTIFIES THAT, for value received, _______________________(the
"Holder") or registered permitted assigns is entitled to purchase from TELIDENT,
INC., (the "Corporation"), a corporation organized and existing under the laws
of the State of Minnesota, at the purchase price per share specified below
(subject to adjustment as noted below) at any time or from time to time from and
after the date hereof to and including the Termination Date (as hereinafter
defined) 200,000 fully paid and nonassessable shares of the Corporation's Common
Stock, par value $0.08 per share (the "Warrant Stock") (subject to adjustment as
noted below). This Warrant has been issued in connection with the purchase from
the Corporation of series III convertible preferred shares of the Corporation
(the "Series III Preferred Stock") pursuant to a Stock Purchase Agreement dated
April 13, 1998 (the "Purchase Agreement"), by and among the Corporation, certain
other equity investors and the Holder. For purposes of this Warrant,
"Termination Date" shall mean 5:00 P.M. Minneapolis time on the second
anniversary of the Closing Date unless extended as provided herein. All
capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Purchase Agreement.
The purchase price of the Warrant Stock upon exercise of the Warrant
shall be $3.125 per share (the "Purchase Price"). The Purchase Price shall be
subject to adjustment as provided below.
The Holder may sell, transfer, assign or otherwise dispose of any of
its rights or obligations hereunder in accordance with applicable securities
laws.
This Warrant is subject to the following provisions, terms and
conditions:
1. This Warrant may be exercised by the Holder hereof, in whole or
in part, by written notice of exercise delivered to the Corporation along with
the surrender of this Warrant (properly endorsed if required) at the principal
office of the Corporation and upon payment to it by wire transfer of the
Purchase Price for the number of shares of Warrant Stock which the Holder elects
to purchase. The Corporation agrees that the shares so purchased shall be and
are deemed to be issued to the Holder hereof as the record owner of such shares
as of the close of business on the date on which this Warrant shall have been
surrendered and payment made for such shares as aforesaid. Subject to the
provisions of the
next succeeding paragraph, certificates for the Warrant Stock so purchased shall
be delivered to the Holder hereof within a reasonable time, not exceeding two
(2) days, after the rights represented by this Warrant shall have been so
exercised, and, unless this Warrant has expired, a new Warrant representing the
number of shares, if any, with respect to which this Warrant shall not then have
been exercised shall also be delivered to the Holder hereof within such time.
2. Subject to the provisions of this Section 2, the Corporation
shall have the right to require the Holder to exercise this Warrant (the
"Call"), upon the Corporation's giving written notice to the Holder (the "Call
Notice"). The Call may be exercised at the option of the Corporation at any time
if the bid price of the Corporation's Common Stock on The NASDAQ SmallCap Market
(or such other market or exchange as such Common Stock may be traded) has
equaled or exceeded $4.375 per share (equitably adjusted to reflect stock
splits, stock dividends, reorganizations, consolidations and similar changes
hereafter effected) for a period of at least ten (10) consecutive trading days
immediately prior to the Call Notice. Upon receipt of such Call Notice, the
Holder (i) shall surrender this Warrant to the Corporation together with payment
of the Purchase Price for the number of shares of Warrant Stock to be purchased
on or before the fifteenth day following the Corporation's giving of the Call
Notice to the Holder, or (ii) shall decline to exercise the Warrant, in whole or
in part, whereupon the Warrant shall immediately terminate with respect to any
shares which the Holder does not exercise. If Holder purchases less than all of
the Warrant Stock within such fifteen (15) day period, the Warrant shall
immediately terminate with respect to all shares of Warrant Stock not so
purchased. Notwithstanding anything to the contrary contained herein, the
Corporation cannot exercise the Call at any time that the Registration Statement
required to be filed under Section 11.1 of the Purchase Agreement is not
effective. Additionally, the 15-day period described herein shall be extended by
the number of days during a period that such Registration Statement is subject
to a stop order or is otherwise not in effect or the holder is advised that the
prospectus included therein contains a material misstatement or omission.
3. The Corporation covenants and agrees that, the Warrant Stock
will, upon issuance, be duly authorized and issued, fully paid and
nonassessable. The Corporation further covenants and agrees that during the
period within which the rights represented by this Warrant may be exercised, the
Corporation will, at all times have authorized and reserved for the purpose of
issue or transfer upon exercise of the rights evidenced by this Warrant, a
sufficient number of shares of Warrant Stock to provide for the exercise of the
rights represented by this Warrant.
4. The above provisions are, however, subject to the following:
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(a) The Purchase Price shall, from and after the date of issuance of
this Warrant, be subject to adjustment from time to time as hereinafter
provided. Upon each adjustment of the Purchase Price, the Holder of this Warrant
shall thereafter be entitled to purchase, at the Purchase Price resulting from
such adjustment, the number of shares obtained by multiplying the Purchase Price
in effect immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment and dividing
the product thereof by the Purchase Price resulting from such adjustment.
(b) Except for (i) options to purchase shares of Common Stock
pursuant to the Corporation's 1988 Stock Option Plan adopted by the Corporation
which are outstanding as of the date hereof and except for shares of Common
Stock issued upon the exercise of such options granted pursuant to such plan and
(ii) shares of Common Stock issued upon conversion of the Series III Preferred
Stock or exercise of this Warrant or other warrants or rights to purchase the
securities of the Corporation outstanding as of the date hereof, if and whenever
the Corporation shall issue or sell any additional shares of its Common Stock
for a consideration per share less than the Purchase Price in effect immediately
prior to the time of such issue or sale, then, forthwith upon such issue or
sale, the Purchase Price shall be reduced to such lesser price as is determined
by multiplying the Purchase Price in effect immediately prior thereto by a
fraction, the numerator of which shall be the sum of the number of shares of
Common Stock outstanding immediately prior to the issuance or sale of such
additional shares and the number of shares of Common Stock which the aggregate
consideration received (determined in accordance with this paragraph 4) for the
issuance or sale of such additional shares would purchase at the Purchase Price
then in effect, and the denominator of which shall be the number of shares of
Common Stock outstanding immediately after the issuance or sale of such
additional shares.
(c) For the purposes of paragraph (b), the following provisions (i)
to (iii), inclusive, shall also be applicable:
(i) In case at any time the Corporation shall grant (whether
directly or by assumption in a merger or otherwise) any rights to
subscribe for or to purchase, or any options for the purchase of, (aa)
Common Stock or (bb) any obligations or any shares of stock of the
Corporation which are convertible into or exchangeable for Common Stock
(any of such obligations or shares of stock being hereinafter called
"Convertible Securities") whether or not such rights or options or the
right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such rights or options or upon conversion or
exchange of such Convertible Securities (determined by dividing (cc) the
total amount, if any, received or receivable by the Corporation as
consideration for the granting of such rights or options, plus the minimum
aggregate amount of additional consideration payable to the Corporation
upon the exercise of
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such rights or options, plus, in the case of such rights or options which
relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof, by
(dd) the total maximum number of shares of Common Stock issuable upon the
exercise of such rights or options or upon the conversion or exchange of
all such Convertible Securities issuable upon the exercise of such rights
or options) shall be less than the Purchase Price in effect immediately
prior to the time of the granting of such rights or options on the date of
such grant, then the total maximum number of shares of Common Stock
issuable upon the exercise of such rights or options or upon conversion or
exchange of the total maximum amount of such Convertible Securities
issuable upon the exercise of such rights or options shall (as of the date
of granting of such rights or options) be deemed to be outstanding and to
have been issued for such price per share. No further adjustments of the
Purchase Price shall be made upon the actual issue of such Common Stock or
of such Convertible Securities upon exercise of such rights or options or
upon the actual issue of such Common Stock upon conversion or exchange of
such Convertible Securities.
(ii) In case the Corporation shall issue or sell (whether directly
or by assumption in a merger or otherwise) any Convertible Securities,
whether or not the rights to exchange or convert thereunder are
immediately exercisable, and the price per share for which Common Stock is
issuable upon such conversion or exchange (determined by dividing (aa) the
total amount received or receivable by the Corporation as consideration
for the issue or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange thereof, by (bb) the total
maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less than the
Purchase Price in effect immediately prior to the time of such issue or
sale, then the total maximum number of shares of Common Stock issuable
upon conversion or exchange of all such Convertible Securities shall (as
of the date of the issue or sale of such Convertible Securities) be deemed
to be outstanding and to have been issued for such price per share,
provided that if any such issue or sale of such Convertible Securities is
made upon exercise of any rights to subscribe for or to purchase or any
option to purchase any such Convertible Securities for which adjustments
of the Purchase Price have been or are to be made pursuant to other
provisions of this paragraph (c), no further adjustment of the Purchase
Price shall be made by reason of such issue or sale.
(iii) In case any shares of Common Stock or Convertible Securities
or any rights or options to purchase any such Common Stock or Convertible
Securities shall be issued or sold for cash, the consideration received
therefor shall be deemed to be
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the amount received by the Corporation therefor, without deduction
therefrom of any expenses incurred or any underwriting commissions,
discounts or concessions paid or allowed by the Corporation in connection
therewith. In case any shares of Common Stock or Convertible Securities or
any rights or options to purchase any such Common Stock or Convertible
Securities shall be issued or sold for a consideration other than cash,
the amount of the consideration other than cash received by the
Corporation shall be deemed to be the fair value of such consideration as
determined by the Board of Directors of the Corporation, without deducting
therefrom any expenses incurred or any underwriting commissions, discounts
or concessions paid or allowed by the Corporation in connection therewith.
In case any shares of Common Stock or Convertible Securities or any rights
or options to purchase such Common Stock or Convertible Securities shall
be issued in connection with any merger or consolidation in which the
Corporation is the surviving corporation, the amount of consideration
therefor shall be deemed to be the fair value as determined by the Board
of Directors of the Corporation of such portion of the assets and business
of the non-surviving corporation or corporations as such Board shall
determine to be attributable to such Common Stock, Convertible Securities,
rights or options, as the case may be. In the event of any consolidation
or merger of the Corporation in which the Corporation is not the surviving
corporation or in the event of any sale of all or substantially all of the
assets of the Corporation for stock or other securities of any other
corporation, the Corporation shall be deemed to have issued a number of
shares of its Common Stock for stock or securities of the other
corporation computed on the basis of the actual exchange ratio on which
the transaction was predicated and for a consideration equal to the fair
market value on the date of such transaction of such stock or securities
of the other corporation, and if any such calculation results in
adjustment of the Purchase Price, the determination of the number of
shares of Common Stock issuable upon exercise of this Warrant immediately
prior to such merger, conversion or sale, for purposes of paragraph (g)
below, shall be made after giving effect to such adjustment of the
Purchase Price.
(d) In case the Corporation shall (i) declare a dividend upon the
Common Stock payable in Common Stock (other than a dividend declared to effect a
subdivision of the outstanding shares of Common Stock, as described in paragraph
(e) below) or Convertible Securities, or in any rights or options to purchase
Common Stock or Convertible Securities, or (ii) declare any other dividend or
make any other distribution upon the Common Stock payable otherwise than out of
earnings or earned surplus, then thereafter the Holder of this Warrant upon the
exercise hereof will be entitled to receive the number of shares of Warrant
Stock to which Holder shall be entitled upon such exercise, and, in addition and
without further payment therefor, each dividend described in clause (i) above
and each dividend or distribution described in clause (ii) above which Holder
would have received by way of dividends or distributions if continuously since
the issuance of this
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Warrant, Holder (i) had been the record Holder of the number of shares of
Warrant Stock then received, and (ii) had retained all dividends or
distributions in stock or securities (including Common Stock or Convertible
Securities, or in any rights or options to purchase any Common Stock or
Convertible Securities) payable in respect of such Warrant Stock or in respect
of any stock or securities paid as dividends or distributions and originating
directly or indirectly from such Warrant Stock. For the purposes of the
foregoing, a dividend or distribution other than in cash shall be considered
payable out of earnings or earned surplus only to the extent that such earnings
or earned surplus are charged an amount equal to the fair value of such dividend
or distribution as determined by the Board of Directors of the Corporation.
(e) In case the Corporation shall at any time subdivide its
outstanding shares of Common Stock into a greater number of shares, the Purchase
Price in effect immediately prior to such subdivision shall be proportionately
reduced, and conversely, in case the outstanding shares of Common Stock of the
Corporation shall be combined into a smaller number of shares, the Purchase
Price in effect immediately prior to such combination shall be proportionately
increased.
(f) If (i) the purchase price provided for in any right or option
referred to in clause (i) of paragraph (c), or (ii) the additional
consideration, if any, payable upon the conversion or exchange of Convertible
Securities referred to in clause (i) or clause (ii) of paragraph (c), or (iii)
the rate at which any Convertible Securities referred to in clause (i) or clause
(ii) of paragraph (c) are convertible into or exchangeable for Common Stock
shall change at any time (other than under or by reason of provisions designed
to protect against dilution), the Purchase Price then in effect shall forthwith
be increased or decreased to such Purchase Price which would have been obtained
had the adjustments made upon the issuance of such rights, options or
Convertible Securities been made upon the basis of (i) the issuance of the
number of shares of Common Stock theretofore actually delivered upon the
exercise of such options or rights or upon the conversion or exchange of such
Convertible Securities, and the total consideration received therefor, and (ii)
the issuance at the time of such change of any such options, rights or
Convertible Securities then still outstanding for the consideration, if any,
received by the Corporation therefor and to be received on the basis of such
changed price; and on the expiration of any such option or right or the
termination of any such right to convert or exchange such Convertible
Securities, the Purchase Price then in effect hereunder shall forthwith be
increased to such Purchase Price which would have obtained had the adjustments
made upon the issuance of such rights or options or Convertible Securities been
made upon the basis of the issuance of the shares of Common Stock theretofore
actually delivered (and the total consideration received therefor) upon the
exercise of such rights or options or upon the conversion or exchange of such
Convertible Securities. If the purchase price provided for in any such right or
option referred to in clause (i) of paragraph (c) or the rate at which any
Convertible Securities referred to in
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clause (i) or clause (ii) of paragraph (c) are convertible into or exchangeable
for Common Stock shall decrease at any time under or by reason of provisions
with respect thereto designed to protect against dilution, then in case of the
delivery of Common Stock upon the exercise of any such right or option or upon
conversion or exchange of any such Convertible Security, the Purchase Price then
in effect hereunder shall forthwith be decreased to such Purchase Price as would
have obtained had the adjustments made upon the issuance of such right, option
or Convertible Securities been made upon the basis of the issuance of (and the
total consideration received for) the shares of Common Stock delivered as
aforesaid.
(g) If any capital reorganization or reclassification of the capital
stock of the Corporation, or consolidation or merger of the Corporation with
another corporation, or the sale of all or substantially all of its assets to
another corporation shall be effected in such a way that the holders of Common
Stock shall be entitled to receive stock, securities or assets with respect to
or in exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the Holder hereof shall thereafter have the right to
purchase and receive, upon the basis and upon the terms and conditions specified
in this Warrant and in lieu of the shares of the Warrant Stock of the
Corporation immediately theretofore purchasable and receivable upon the exercise
of the rights represented hereby, such shares of stock, securities or assets as
may be issued or payable with respect to or in exchange for a number of
outstanding shares of such Common Stock equal to the number of shares of such
stock immediately theretofore purchasable and receivable upon the exercise of
the rights represented hereby had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests of the Holder
of this Warrant to the end that the provisions hereof (including without
limitation provisions for adjustments of the Purchase Price and of the number of
shares purchasable upon the exercise of this Warrant) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise hereof. The Corporation shall
not effect any such consolidation, merger or sale, unless prior to the
consummation thereof the successor corporation (if other than the Corporation)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume, by written instrument executed and mailed to the registered
Holder hereof at the last address of Holder appearing on the books of the
Corporation, the obligation to deliver to Holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions, the Holder
may be entitled to purchase.
(h) In case any time:
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(1) the Corporation shall declare any cash dividend on
its Common Stock or preferred stock at a rate in excess of the rate
of the last cash dividend theretofore paid;
(2) the Corporation shall pay any dividend payable in
stock upon its Common Stock or make any distribution (other than
regular cash dividends) to the holders of its Common Stock or
preferred stock;
(3) the Corporation shall offer for subscription pro
rata to the holders of its Common Stock or preferred stock any
additional shares of stock of any class or other rights;
(4) there shall be any capital reorganization, or
reclassification of the capital stock of the Corporation, or
consolidation or merger of the Corporation with, or sale of all or
substantially all of its assets to, another corporation; or
(5) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give written
notice, by first-class mail, postage prepaid, addressed to the registered Holder
of this Warrant at the address of the Holder as shown on the books of the
Corporation, of the date on which (aa) the books of the Corporation shall close
or a record shall be taken for such dividend, distribution or subscription
rights, or (bb) such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up shall take place, as the case may
be. Such notice shall also specify the date as of which the holders of Common
Stock of record shall participate in such dividend, distribution or subscription
rights, or shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the case
may be. Such written notice shall be given at least 20 days prior to the action
in question and not less than 20 days prior to the record date or the date on
which the Corporation's transfer books are closed in respect thereto.
(i) If any event occurs as to which in the opinion of the Board of
Directors of the Corporation the other provisions of this paragraph 4 are not
strictly applicable or if strictly applicable would not fairly protect the
purchase rights of the Holder of this Warrant or of Warrant Stock in accordance
with the essential intent and principles of such provisions, then the Board of
Directors shall make an adjustment in the application of such provisions, in
accordance with such essential intent and principles, so as to protect such
purchase rights as aforesaid.
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(j) No fractional shares of Warrant Stock shall be issued upon the
exercise of this Warrant, but, instead of any fraction of a share which would
otherwise be issuable, the Corporation shall pay a cash adjustment (which may be
effected as a reduction of the amount to be paid by the Holder hereof upon such
exercise) in respect of such fraction in an amount equal to the same fraction of
the Market Price per share of Common Stock as of the close of business on the
date of the notice required by paragraph 1 above. "Market Price" shall mean, if
the Common Stock is traded on a securities exchange, the NASDAQ National Market
or on The NASDAQ SmallCap Market, the closing price of the Common Stock on such
exchange, the NASDAQ National Market or the NASDAQ SmallCap Market, or, if the
Common Stock is otherwise traded in the over-the-counter market, the closing
price, in each case averaged over a period of 20 consecutive business days prior
to the date as of which "Market Price" is being determined. If at any time the
Common Stock is not traded on an exchange, the NASDAQ National Market or The
NASDAQ SmallCap Market, or otherwise traded in the over-the-counter market, the
"Market Price" shall be deemed to be the higher of (i) the book value thereof as
determined by any firm of independent public accountants of recognized standing
selected by the Board of Directors of the Corporation as of the last day of any
month ending within 60 days preceding the date as of which the determination is
to be made, or (ii) the fair value thereof determined in good faith by the Board
of Directors of the Corporation as of a date which is within 15 days of the date
as of which the determination is to be made.
(k) Whenever the number of shares purchasable upon the exercise of
this Warrant or the Purchase Price is adjusted, as provided herein, the
Corporation shall promptly, but in no event more than 3 days following such
adjustment, give the Holder notice of such adjustment, certified by the chief
financial officer of the Corporation, setting forth the number of shares
purchasable upon exercise of the Warrant and the Purchase Price, the computation
by which such adjustment was made and a brief statement of the facts requiring
such adjustment.
5. As used herein, the term "Common Stock" shall include the
Corporation's presently authorized Common Stock and shall also include any
capital stock of any class of the Corporation hereafter authorized which shall
not be limited to a fixed sum or percentage in respect of the rights of the
Holders thereof to participate in dividends or in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; provided that the shares purchasable pursuant to this Warrant shall
include shares designated as Common Stock of the Corporation on the date of
original issue of this Warrant or, in the case of any reclassification of the
outstanding shares thereof, the stock, securities or assets provided for in
paragraph 4(g) above.
6. So long as this Warrant remains outstanding, the Corporation will
not issue any additional capital stock of any class preferred as to dividends or
as to the
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distribution of assets upon voluntary or involuntary liquidation, dissolution or
winding up, unless the rights of the holders thereof shall be limited to a fixed
sum or percentage of par, liquidation or redemption value in respect of
participation in dividends and in the distribution of such assets.
7. This Warrant shall not entitle the Holder hereof to any voting
rights or other rights as a stockholder of the Corporation.
8. The Holder of this Warrant, by acceptance hereof, agrees to give
written notice to the Corporation before transferring this Warrant or
transferring any unregistered Warrant Stock issuable or issued upon the exercise
hereof of Xxxxxx's intention to do so, describing briefly the manner of any
proposed transfer of this Warrant or Xxxxxx's intention as to the disposition to
be made of shares of Common Stock issuable or issued upon the exercise hereof.
Holder shall also provide the Corporation with an opinion of counsel
satisfactory to the Corporation to the effect that the proposed transfer of this
Warrant or disposition of unregistered shares may be effected without
registration or qualification (under any Federal or State law) of this Warrant
or the shares of Common Stock issuable or issued upon the exercise hereof. Upon
receipt of such written notice and opinion by the Corporation, Holder shall be
entitled to transfer this Warrant, or to exercise this Warrant in accordance
with its terms and dispose of the shares received upon such exercise or to
dispose of shares of Common Stock received upon the previous exercise of this
Warrant, provided that an appropriate legend respecting the aforesaid
restrictions on transfer and disposition may be endorsed on this Warrant or the
certificates for such shares. The Holder and any assignee of the Holder shall be
entitled to the registration rights provided in Section 11 of the Purchase
Agreement.
9. Subject to the provisions of paragraph 8 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, by the Holder hereof
in person or by duly authorized attorney, upon surrender at the principal office
of the Corporation of this Warrant properly endorsed. Each taker and holder of
this Warrant, by taking or holding the same, consents and agrees that the bearer
of this Warrant, when endorsed, may be treated by the Corporation and all other
persons dealing with this Warrant as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented by this Warrant,
or to the transfer hereof on the books of the Corporation, any notice to the
contrary notwithstanding; but until such transfer on such books, the Corporation
may treat the registered Holder hereof as the owner for all purposes.
10. This Warrant is exchangeable, upon the surrender hereof by the
Holder hereof at the principal office of the Corporation, for new Warrants of
like tenor representing in the aggregate the right to subscribe for and purchase
the number of shares which may be subscribed for and purchased hereunder, each
of such new Warrants to represent the right to
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subscribe for and purchase such number of shares as shall be designated by said
Xxxxxx hereof at the time of such surrender.
11. The Holder of this Warrant and of the Warrant Stock issuable or
issued upon the exercise hereof shall be entitled to the registration rights set
forth in Section 11 of the Purchase Agreement.
12. The obligations contained herein shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
13. All questions concerning this Warrant will be governed and
interpreted and enforced in accordance with the internal law of the State of
Minnesota.
14. Any notice required to be given to the Corporation under the
terms of this Warrant shall be in writing and addressed to the Secretary of the
Corporation at Xxx Xxxx Xxxxxx, X.X., Xxxxx 00, Xxxxxxxxxxx, Xxxxxxxxx 00000.
Any notice required to be given to the Holder shall be in writing and addressed
to the Holder at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
such other address as it may designate in writing from time to time. All notices
shall be deemed to have been given or delivered upon: personal delivery; five
(5) days after deposit in the United States Mail, certified or registered
(return receipt requested); one (1) business day after deposit with a nationally
recognized overnight courier (prepaid) or one (1) business day after
transmission by facsimile and receipt of confirmation of receipt by sender.
15. In the event that (i) (A) the Corporation shall fail for any
reason to deliver shares of Common Stock to a Holder upon any exercise of this
Warrant within the time period specified in Section 1 hereof, or (B) the Company
shall fail to remove any restrictive legend or any certificates evidencing such
shares of Common Stock as and when required under Section 4.3 of the Purchase
Agreement and (ii) thereafter, such Holder shall purchase (in an open market
transaction or otherwise) shares of Common Stock to make delivery in
satisfaction of a sale by such Holder of (A) all or a portion of the shares of
Common Stock which such Holder anticipated receiving upon such exercise, or (B)
all or a portion of such unlegended shares of Common Stock, as the case may be
(in each case, the "Sold Shares"), then the Corporation shall pay to such Holder
(in addition to any other remedies available to the Holder) the amount by which
(x) such Holder's total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased shall exceed (y) the net proceeds
received by such Holder from the sale of the Sold Shares. The Corporation shall
make any payments required pursuant to this paragraph 15 within five (5)
business days after receipt of written notice from the Holder setting forth the
calculation of the amount due hereunder.
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16. The Termination Date of this Warrant shall be extended by the
number of days that any of the following events has occurred and is continuing:
(i) commencing ninety-one (91) days after the date hereof, the Registration
Statement required to be filed under Section 11.1 of the Purchase Agreement is
not effective, or (ii) such Registration Statement is subject to a stop order or
is otherwise not in effect or the Holder is advised that the prospectus included
therein contains a material misstatement or omission.
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IN WITNESS WHEREOF, the Corporation and the Holder have caused this
Warrant to be signed by their duly authorized officers as of April 13, 1998.
TELIDENT, INC.
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By: X. Xxxxxx XxXxxxxxxx
Its: President and Chief Executive Officer
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By:
-----------------------
Its:
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RESTRICTION ON TRANSFER
The securities evidenced hereby may not be transferred without (i)
an opinion of counsel reasonably satisfactory to the Corporation that such
transfer may be lawfully made without registration under the Federal Securities
Act of 1933 and all applicable state securities laws or (ii) such registration.
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FORM OF ASSIGNMENT
(TO BE SIGNED ONLY UPON ASSIGNMENT)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
this Warrant, and appoints
to transfer this Warrant on the books of the Corporation with the full power of
substitution in the premises.
Dated:
In the presence of:
------------------------------------------
(Signature must conform in all respects to
the name of the Holder as specified on the
face of this Warrant without alteration,
enlargement or any change whatsoever)
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SUBSCRIPTION FORM
To Be Executed by the Holder of This Warrant if Holder
Desires to Exercise This Warrant in Whole or in Part:
To: Telident, Inc. (the "Corporation")
The undersigned ________________________________
Please insert Social Security or other
identifying number of Subscriber:
______________________________
hereby irrevocably elects to exercise the right of purchase represented by this
Warrant for, and to purchase thereunder, _________ shares of the Common Stock
provided for therein and tenders payment herewith to the order of the
Corporation in the amount of $_________, such payment being made as provided on
the face of this Warrant.
The undersigned requests that certificates for such shares of Common
Stock be issued as follows:
Name:
---------------------------------------------------
Address:
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Deliver to:
---------------------------------------------------
Address:
---------------------------------------------------
and, if such number of shares of Common Stock shall not be all the shares of
Common Stock purchasable hereunder, that a new Warrant for the balance remaining
of the shares of Common Stock purchasable under this Warrant be registered in
the name of, and delivered to, the undersigned at the address stated above.
Dated:
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Signature
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Note: The signature on this
Subscription Form must correspond
with the name as written upon the
face of this Warrant in every
particular, without alteration or
enlargement or any change whatever.
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