1
EXHIBIT 10.47
THE SECURITIES REPRESENTED BY THIS WARRANT AND THE COMMON STOCK ISSUABLE
THEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW AND,
ACCORDINGLY, THE SECURITIES REPRESENTED BY THIS WARRANT MAY NOT BE RESOLD,
PLEDGED, OR OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER, OR IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER, THE
SECURITIES ACT AND IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS.
WARRANT
to Purchase Common Stock of
INTELECT COMMUNICATIONS SYSTEMS LIMITED
Expiring on May 7, 2002
This Common Stock Purchase Warrant (the "Warrant") certifies that for
value received, THE COASTAL CORPORATION SECOND PENSION TRUST (the "Holder") or
its assigns, is entitled to subscribe for and purchase from the Company (as
hereinafter defined), in whole or in part, SEVEN HUNDRED FIFTY THOUSAND
(750,000) shares of duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock (as hereinafter defined) at an initial
Exercise Price (as hereinafter defined) per share of TWO DOLLARS (US $2.00),
subject, however, to the provisions and upon the terms and conditions
hereinafter set forth. The number of Warrants (as hereinafter defined), the
number of shares of Common Stock purchasable hereunder, and the Exercise Price
therefor are subject to adjustment as hereinafter set forth. This Warrant and
all rights hereunder shall expire at 5:00 p.m., Houston, Texas time, on May 7,
2002.
As used herein, the following terms shall have the meanings set forth
below:
"Cashless Exercise" has the meaning given in Section 1.1.
"Company" shall mean Intelect Communications Systems Limited, a
Bermuda corporation, and shall also include any successor thereto with respect
to the obligations hereunder, by merger, consolidation or otherwise.
"Common Stock" shall mean and include the Company's Common Stock, par
value $0.01 per share, authorized on the date of the original issue of this
Warrant and shall also include (i) in case of any reorganization,
reclassification, consolidation, merger, share exchange or sale, transfer or
other disposition of assets of the character referred to in Section 3.5 hereof,
the stock, securities provided for in such Section 3.5, and (ii) any other
shares of Common Stock of the Company into which such shares of Common Stock
may be converted.
"Convertible Securities" has the meaning given in Section 3.2 (b)(i).
"Exercise Date" has the meaning given in Section 1.1.
"Exercise Price" shall mean the initial purchase price of TWO
DOLLARS (US $2.00) per share of Common Stock payable upon exercise of the
Warrants, as adjusted from time to time pursuant to the provisions hereof.
"Market Price" for any day, when used with reference to Common Stock,
shall mean the price of said Common Stock determined as follows: (x) the last
reported sale price for the Common Stock on such day on the principal
securities exchange on which the Common Stock is listed or admitted to trading
or if no such sale takes place on such date, the average of the closing bid and
asked prices thereof as officially reported, or, if not so listed or admitted
to trading on any securities exchange, the last sale price for the Common Stock
on the National Association of Securities Dealers National Market on such date,
or, if there shall have been no trading on such date or if the Common Stock
shall not be listed on such system, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any NASD member firm
selected from time to time by the Company for such purpose, in each such case,
unless otherwise provided herein, averaged over a period of ten (10)
consecutive Trading Days prior to the date as of which the determination is to
be made; or (y) if the Common Stock shall not be listed or admitted to trading
as provided in clause "(x)" above, the fair market value of the Common Stock as
determined in good faith by the Board of Directors of the Company.
-1-
2
"Note" shall mean the Promissory Note of the Company issued to Holder
in the principal amount of $5,000,000, of even date herewith.
"Outstanding," when used with reference to Common Stock, shall mean
(except as otherwise expressly provided herein) at any date as of which the
number of shares thereof is to be determined, all issued shares of Common
Stock, except shares then owned or held by or for the account of the Company.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Subscription Notice" has the meaning given in Section 1.1.
"Trading Days" shall mean any days during the course of which the
principal securities exchange on which the Common Stock is listed or admitted
to trading is open for the exchange of securities.
"Warrant" shall mean the right upon exercise to purchase one Warrant
Share.
"Warrant Shares" shall mean the shares of Common Stock purchased or
purchasable by the Holder hereof upon the exercise of the Warrants.
ARTICLE I
EXERCISE OF WARRANTS
Section I.1 Method of Exercise. The Warrants represented hereby
may be exercised by the Holder hereof, in whole or in part, at any time and
from time to time on or after the date hereof until 5:00 p.m., Houston, Texas
time, on May 7, 2002 (the "Exercise Date"). To exercise the Warrants, the
Holder hereof shall deliver to the Company, at the Warrant Office designated in
Section 2.1 hereof, (i) a written notice in the form of the Subscription Notice
attached as an exhibit hereto, stating therein the election of such holder to
exercise the Warrants in the manner provided in the Subscription Notice; (ii)
payment in full of the Exercise Price (A) in cash or by bank check for all
Warrant Shares purchased hereunder, or (B) if the Company and the Holder
mutually elect, through a "cashless" or "net-issue" exercise of each such
Warrant ("Cashless Exercise"); the Holder shall exchange each Warrant subject
to a Cashless Exercise for that number of Warrant Shares determined by
multiplying the number of Warrant Shares issuable hereunder by a fraction, the
numerator of which shall be the difference between (x) the Market Price and (y)
the Exercise Price for each such Warrant, and the denominator of which shall be
the Market Price; the Subscription Notice shall set forth the calculation upon
which the Cashless Exercise is based, or (C) a combination of (A) and (B)
above; and (iii) this Warrant. The Warrants shall be deemed to be exercised on
the date of receipt by the Company of the Subscription Notice, accompanied by
payment for the Warrant Shares and surrender of this Warrant, as aforesaid, and
such date is referred to herein as the "Exercise Date". Upon such exercise,
the Company shall, as promptly as practicable and in any event within ten (10)
business days, issue and deliver to such holder a certificate or certificates
for the full number of the Warrant Shares purchased by such Holder hereunder,
and shall, unless the Warrants have expired, deliver to the Holder hereof a new
Warrant representing the number of Warrants, if any, that shall not have been
exercised, in all other respects identical to this Warrant. As permitted by
applicable law, the person in whose name the certificates for Common Stock are
to be issued shall be deemed to have become a holder of record of such Common
Stock on the Exercise Date and shall be entitled to all of the benefits of such
holder on the Exercise Date, including without limitation the right to receive
dividends and other distributions for which the record date falls on or after
the Exercise Date and to exercise voting rights.
Section I.2 Expenses and Taxes. The Company shall pay all
expenses, and taxes (including, without limitation, all documentary, stamp,
transfer or other transactional taxes) other than income taxes attributable to
the preparation, issuance or delivery of the Warrants and of the shares of
Common Stock issuable upon exercise of the Warrants.
Section I.3 Reservation of Shares. The Company shall reserve at
all times so long as the Warrants remain outstanding, free from preemptive
rights, out of its treasury Common Stock or its authorized but unissued shares
of Common Stock, or both, solely for the purpose of effecting the exercise of
the Warrants, a sufficient number of shares of Common Stock to provide for the
exercise of the Warrants.
-2-
3
Section I.4 Valid Issuance. All shares of Common Stock that may
be issued upon exercise of the Warrants will, upon issuance by the Company, be
duly and validly issued, fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issuance thereof and, without limiting
the generality of the foregoing, the Company shall take no action or fail to
take any action which will cause a contrary result (including, without
limitation, any action that would cause the Exercise Price to be less than the
par value, if any, of the Common Stock).
Section I.5 Purchase Agreement. The Warrants represented hereby
are part of a duly authorized issuance and sale of Warrants to purchase Common
Stock issued and sold pursuant to the Loan Agreement between Holder and Company
of even date herewith.
Section I.6 Acknowledgment of Rights. At the time of the
exercise of the Warrants in accordance with the terms hereof and upon the
written request of the Holder hereof, the Company will acknowledge in writing
its continuing obligation to afford to such holder any rights (including,
without limitation, any right to registration of the Warrant Shares) to which
such holder shall continue to be entitled after such exercise in accordance
with the provisions of this Warrant; provided, however, that if the Holder
hereof shall fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such holder any such rights.
Section I.7 No Fractional Shares. The Company shall not be
required to issue fractional shares of Common Stock on the exercise of this
Warrant. If more than one Warrant shall be presented for exercise at the same
time by the same holder, the number of full shares of Common Stock which shall
be issuable upon such exercise shall be computed on the basis of the aggregate
number of whole shares of Common Stock purchasable on exercise of the Warrants
so presented. If any fraction of a share of Common Stock would, except for the
provisions of this Section 1.7, be issuable on the exercise of this Warrant,
the Company shall pay an amount in cash calculated by it to be equal to the
Market Price of one share of Common Stock at the time of such exercise
multiplied by such fraction computed to the nearest whole cent.
ARTICLE II
TRANSFER
Section II.1 Warrant Office. The Company shall maintain an office
for certain purposes specified herein (the "Warrant Office"), which office
shall initially be the Company's offices at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxx 00000 and may subsequently be such other office of the Company or of any
transfer agent of the Common Stock in the continental United States as to which
written notice has previously been given to the Holder hereof. The Company
shall maintain, at the Warrant Office, a register for the Warrants in which the
Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each permitted
assignee of the rights of the registered owner hereof.
Section II.2 Ownership of Warrants. The Company may deem and
treat the person in whose name the Warrants are registered as the Holder and
owner hereof (notwithstanding any notations of ownership or writing hereon made
by anyone other than the Company) for all purposes and shall not be affected by
any notice to the contrary until presentation of this Warrant for registration
of transfer as provided in this Article II. Notwithstanding the foregoing, the
Warrants represented hereby, if properly assigned in compliance with this
Article II, may be exercised by an assignee for the purchase of Warrant Shares
without having a new Warrant issued.
Section II.3 Restrictions on Transfer of Warrants.
(a) The Company agrees to maintain at the Warrant Office
books for the registration and transfer of the Warrants. Subject to the
restrictions on transfer of the Warrants in this Section 2.3, the Company, from
time to time, shall register the transfer of the Warrants in such books upon
surrender of this Warrant at the Warrant Office properly endorsed or
accompanied by appropriate instruments of transfer and written instructions for
transfer satisfactory to the Company. Upon any such transfer and upon payment
by the Holder or its transferee of any applicable transfer taxes, new Warrants
shall be issued to the transferee and the transferor (as their respective
interests may appear) and the surrendered Warrants shall be canceled by the
Company. The Company shall pay all taxes (other than securities transfer taxes
or income taxes) and all other expenses and charges payable in connection with
the transfer of the Warrants pursuant to this Section 2.3.
-3-
4
(b) Restrictions in General. The Holder of the Warrants
agrees that it will neither (i) transfer the Warrants prior to delivery to the
Company of written notice of such transfer, nor (ii) transfer such Warrant
Shares prior to delivery to the Company of written notice of such transfer, or
until registration of such Warrant Shares under the Securities Act and any
applicable state securities or Blue Sky laws has become effective.
Section II.4 Compliance with Securities Laws. Subject to the
terms of the Registration Rights Agreement between the Holder and the Company
dated as of the date hereof and notwithstanding any other provisions contained
in this Warrant, the Holder hereof understands and agrees that the following
restrictions and limitations shall be applicable to all Warrant Shares and to
all resales or other transfers thereof pursuant to the Securities Act:
(a) The Holder hereof agrees that the Warrant Shares shall
not be sold or otherwise transferred unless the Warrant Shares are registered
under the Securities Act and applicable state securities or Blue Sky laws or
are exempt therefrom.
(b) A legend in substantially the following form will be
placed on the certificate(s) evidencing the Warrant Shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY OTHER APPLICABLE
SECURITIES LAW AND, ACCORDINGLY, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED, OR OTHERWISE
TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER, OR IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER, THE SECURITIES ACT AND IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS."
(c) Stop transfer instructions will be imposed with respect
to the Warrant Shares so as to restrict resale or other transfer thereof,
subject to this Section 2.4.
(d) The Holder understands that it must bear the economic
risk of the investment for an indefinite period of time because the Warrant
Shares have not been registered under the Securities Act and therefor cannot be
sold unless they are subsequently registered under the Securities Act or an
exemption from such registration is available. The Holder acknowledges that
the Holder or the Holder's representative is familiar with the condition,
financial and otherwise, of the Company. The Holder or the Holder's
representative has such knowledge and experience in financial and business
matters that the Holder or the Holder's representative is able to weigh the
information so received and to evaluate the merits and risks of the Holder's
investment in the Warrant Shares.
ARTICLE III
ANTI-DILUTION
Section III.1 Anti-Dilution Provisions. The Exercise Price shall
be subject to adjustment from time to time as hereinafter provided. Upon each
adjustment of the Exercise Price, the Holder of this Warrant shall thereafter
be entitled to purchase, at the Exercise Price resulting from such adjustment,
the number of shares of Common Stock obtained by multiplying the Exercise 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 Exercise Price resulting from such adjustment.
Section III.2 Adjustment of Exercise Price Upon Issuance of Common
Stock.
(a) (i) If and whenever after the date hereof the
Company shall issue or sell any Common Stock for no consideration or
for a consideration per share less than the Exercise Price, then,
forthwith upon such issue or sale, the Exercise Price shall be reduced
(but not increased, except as otherwise specifically provided in
Section 3.2 hereof), to the price (calculated to the nearest one-ten
thousandth of a cent) determined by dividing (x) an amount equal to
the sum of (i) the aggregate number of shares of Common Stock
-4-
5
Outstanding immediately prior to such issue or sale multiplied by the
consideration received by the Company upon such issuance or sale on a
per share basis plus (ii) the consideration received by the Company
upon such issue or sale by (y) the aggregate number of shares of
Common Stock Outstanding immediately after such issue or sale.
(ii) Notwithstanding the provisions of this Section
3.2, no adjustment shall be made in the Exercise Price in the event
that the Company issues, in one or more transactions, (A) Common Stock
or Convertible Securities upon exercise of any options issued to
officers, directors or employees of the Company pursuant to a stock
option plan or an employment, severance or consulting agreement as now
or hereafter in effect, in each case approved by the Board of
Directors (provided that the aggregate number of shares of Common
Stock which may be issuable, including options issued prior to the
date hereof, under all such employee plans and agreements shall at no
time exceed the number of such shares of Common Stock that are
issuable under currently effective employee plans and agreements); (B)
Common Stock upon exercise of the Warrants or any other Warrant issued
pursuant to the terms of the Agreement or otherwise issued to the
Holder; (C) Common Stock upon exercise of any stock purchase Warrant
or option (other than the options referred to in clause "(A)" above)
or other convertible security outstanding on the date hereof; (D)
Common Stock upon conversion of the Note; or (E) Common Stock issued
as consideration in acquisitions. In addition, for purposes of
calculating any adjustment of the Exercise Price as provided in this
Section 3.2, all of the shares of Common Stock issuable pursuant to
any of the foregoing shall be assumed to be Outstanding prior to the
event causing such adjustment to be made.
(b) For purposes of this Section 3.2, the following
Sections 3.2(b)(i) to 3.2(b)(v) inclusive, shall be applicable:
(i) Issuance of Rights or Options. In case at any
time after the date hereof the Company shall in any manner 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, Common Stock or any stock or securities convertible into
or exchangeable for Common Stock (such convertible or exchangeable
stock or securities being herein 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 shares of Common Stock are issuable
upon the exercise of such rights or options or upon conversion or
exchange of such Convertible Securities (determined by dividing (A)
the total amount, if any, received or receivable by the Company as
consideration for the granting of such rights or options, plus the
minimum aggregate amount of additional consideration, if any, payable
to the Company upon the exercise of such rights or options, or plus,
in the case of such rights or options that 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 (B) 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 Exercise Price in effect as of the
date of granting such rights or options, 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 all such Convertible
Securities issuable upon the exercise of such rights or options shall
be deemed to be outstanding as of the date of the granting of such
rights or options and to have been issued for such price per share,
with the effect on the Exercise Price specified in Section 3.2(a)
hereof. Except as provided in Section 3.2(b) hereof, no further
adjustment of the Exercise Price shall be made upon the actual
issuance of such Common Stock or of such Convertible Securities upon
exercise of such rights or options or upon the actual issuance of such
Common Stock upon conversion or exchange of such Convertible
Securities.
(ii) Change in Option Price or Conversion Rate.
Upon the happening of any of the following events, namely, if the
purchase price provided for in any right or option referred to in
Section 3.2(b), the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in
Section 3.2(b), or the rate at which any Convertible Securities
referred to in Section 3.2(b), are convertible into or exchangeable
for Common Stock shall change (other than under or by reason of
provisions designed to protect against dilution), the Exercise Price
then in effect hereunder shall forthwith be readjusted (increased or
decreased, as the case may be) to the Exercise Price that would have
been in effect at such time
-5-
6
had such rights, options or Convertible Securities still outstanding
provided for such changed purchase price, additional consideration or
conversion rate, as the case may be, at the time initially granted,
issued or sold. On the expiration of any such option or right
referred to inSection 3.2(b), or on the termination of any such right
to convert or exchange any such Convertible Securities referred to
inSection 3.2(b), the Exercise Price then in effect hereunder shall
forthwith be readjusted (increased or decreased, as the case may be)
to the Exercise Price that would have been in effect at the time of
such expiration or termination had such right, option or Convertible
Securities, to the extent outstanding immediately prior to such
expiration or termination, never been granted, issued or sold, and the
Common Stock issuable thereunder shall no longer be deemed to be
Outstanding. If the purchase price provided for in Section 3.2(b) or
the rate at which any Convertible Securities referred to in Section
3.2(b) reduced 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
Securities, the Exercise Price then in effect hereunder shall, if not
already adjusted, forthwith be adjusted to such amount as would have
obtained had such right, option or Convertible Securities never been
issued as to such Common Stock and had adjustments been made upon the
issuance of the Common Stock delivered as aforesaid, but only if as a
result of such adjustment the Exercise Price then in effect hereunder
is thereby reduced.
(iii) Consideration for Stock. In case at any time
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 therefor shall be deemed to
be the amount received by the Company therefor. In case at any time
any Common Stock, Convertible Securities or any rights or options to
purchase any such Common Stock or Convertible Securities shall be
issued or sold for consideration other than cash, the amount of the
consideration other than cash received by the Company shall be deemed
to be the fair value of such consideration, as determined reasonably
and in good faith by the Board of Directors of the Company. In case
at any time any Common Stock, Convertible Securities or any rights or
options to purchase any Common Stock or Convertible Securities shall
be issued in connection with any merger or consolidation in which the
Company is the surviving corporation, the amount of consideration
received therefor shall be deemed to be the fair value, as determined
reasonably and in good faith by the Board of Directors of the Company,
of such portion of the assets and business of the nonsurviving
corporation as such Board of Directors may determine to be
attributable to such Common Stock, Convertible Securities, rights or
options as the case may be. In case at any time any rights or options
to purchase any shares of Common Stock or Convertible Securities shall
be issued in connection with the issuance and sale of other securities
of the Company, together consisting of one integral transaction in
which no consideration is allocated to such rights or options by the
parties, such rights or options shall be deemed to have been issued
with consideration.
(iv) Record Date. In the case the Company shall
take a record of the holders of its Common Stock for the purpose of
entitling them (i) to receive a dividend or other distribution payable
in Common Stock or Convertible Securities, or (ii) to subscribe for or
purchase Common Stock or Convertible Securities, then such record date
shall be deemed to be the date of the issuance or sale of the Common
Stock or Convertible Securities deemed to have been issued or sold as
a result of the declaration of such dividend or the making of such
other distribution or the date of the granting of such right of
subscription or purchase, as the case may be.
(v) Treasury Shares. The number of shares of Common
Stock Outstanding at any given time shall not include shares owned
directly by the Company in treasury, and the disposition of any such
shares shall be considered an issuance or sale of Common Stock for the
purpose of this Section 3.2.
Section III.3 Stock Dividends. In case the Company shall declare a
dividend or make any other distribution upon any shares of the Company, payable
in Common Stock or Convertible Securities, any Common Stock or Convertible
Securities, as the case may be, issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold without consideration.
Section III.4 Stock Splits and Reverse Splits. In the event that
the Company shall at any time subdivide its Outstanding shares of Common Stock
into a greater number of shares, the Exercise Price in effect immediately prior
to such subdivision shall be proportionately reduced and the number of Warrant
Shares purchasable pursuant to this Warrant immediately prior to such
subdivision shall be proportionately increased, and conversely, in the event
that the
-6-
7
Outstanding shares of Common stock shall at any time be combined into a smaller
number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
purchasable upon the exercise of this Warrant immediately prior to such
combination shall be proportionately reduced. Except as provided in this
Section 3.4, no adjustment in the Exercise Price and no change in the number of
Warrant Shares purchasable shall be made under this Article III as a result of
or by reason of any such subdivision or combination.
Section III.5 Reorganizations and Asset Sales. If any capital
reorganization or reclassification of the capital stock of the Company, or any
consolidation, merger or share exchange of the Company with another person, or
the sale, transfer or other disposition of all or substantially all of its
assets to another person shall be effected in such a way that a holder of
Common Stock of the Company shall be entitled to receive capital stock,
securities or assets with respect to or in exchange for their shares, then the
following provisions shall apply:
(a) As a condition of such reorganization,
reclassification, consolidation, merger, share exchange, sale, transfer or
other disposition (except as otherwise provided below in this Section 3.5),
lawful and adequate provisions shall be made whereby the holder of Warrants
shall thereafter have the right to purchase and receive upon the terms and
conditions specified in this Warrant and in lieu of the Warrant Shares
immediately theretofore receivable upon the exercise of the rights represented
hereby, such shares of capital 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 Warrant Shares immediately theretofore
so receivable had such reorganization, reclassification, consolidation, merger,
share exchange or sale not taken place, and in any such case appropriate
provision reasonably satisfactory to such holder shall be made with respect to
the rights and interests of such holder to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Exercise
Price and of the number of Warrant Shares receivable upon the exercise) shall
thereafter be applicable, as nearly as possible, in relation to any shares of
capital stock, securities or assets thereafter deliverable upon the exercise of
Warrants.
(b) In the event of a merger, share exchange or
consolidation of the Company with or into another person as a result of which a
number of shares of Common Stock or its equivalent of the successor person
greater or lesser than the number of shares of Common Stock Outstanding
immediately prior to such merger, share exchange or consolidation are issuable
to holders of Common Stock, then the Exercise Price in effect immediately prior
to such merger, share exchange or consolidation shall be adjusted in the same
manner as though there were a subdivision or combination of the Outstanding
shares of Common Stock.
(c) The Company shall not effect any such consolidation,
merger, share exchange, sale, transfer or other disposition unless prior to or
simultaneously with the consummation thereof the successor person (if other
than the Company) resulting from such consolidation, share exchange or merger
or the person purchasing or otherwise acquiring such assets shall have assumed
by written instrument executed and mailed or delivered to the Holder hereof at
the last address of such holder appearing on the books of the Company the
obligation to deliver to such holder such shares of capital stock, securities
or assets as, in accordance with the foregoing provisions, such holder may be
entitled to receive, and all other liabilities and obligations of the Company
hereunder. Upon written request by the Holder hereof, such successor person
will issue a new Warrant revised to reflect the modifications in this Warrant
effected pursuant to this Section 3.5.
(d) If a purchase, tender or exchange offer is made to
and accepted by the holders of 50% or more of the Outstanding shares of Common
Stock, the Company shall not effect any consolidation, merger, share exchange
or sale, transfer or other disposition of all or substantially all of the
Company's assets with the person having made such offer or with any affiliate
of such person, unless prior to the consummation of such consolidation, merger,
share exchange, sale, transfer or other disposition the Holder hereof shall
have been given a reasonable opportunity to then elect to receive upon the
exercise of the Warrants either the capital stock, securities or assets then
issuable with respect to the Common Stock or the capital stock, securities or
assets, or the equivalent, issued to previous holders of the Common Stock in
accordance with such offer.
Section III.6 Adjustment for Asset Distribution. If the Company
declares a dividend or other distribution payable to all holders of shares of
Common Stock in evidences of indebtedness of the Company or other assets of the
Company (including, cash (other than regular cash dividends declared by the
Board of Directors), capital stock (other
-7-
8
than Common Stock, Convertible Securities or options or rights thereto) or
other property), the Exercise Price in effect immediately prior to such
declaration of such dividend or other distribution shall be reduced by an
amount equal to the amount of such dividend or distribution payable per share
of Common Stock, in the case of a cash dividend or distribution, or by the fair
value of such dividend or distribution per share of Common Stock (as reasonably
determined in good faith by the Board of Directors of the Company), in the case
of any other dividend or distribution. Such reduction shall be made whenever
any such dividend or distribution is made and shall be effective as of the date
as of which a record is taken for purpose of such dividend or distribution or,
if a record is not taken, the date as of which holders of record of Common
Stock entitled to such dividend or distribution are determined.
Section III.7 De Minimis Adjustments. No adjustment in the number
of shares of Common Stock purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one share of
Common Stock purchasable upon an exercise of each Warrant and no adjustment in
the Exercise Price shall be required unless such adjustment would require an
increase or decrease of at least $0.01 in the Exercise Price; provided,
however, that any adjustments which by reason of this Section 3.7 are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest full
share or nearest one hundredth of a dollar, as applicable.
Section III.8 Notice of Adjustment. Whenever the Exercise Price or
the number of Warrant Shares issuable upon the exercise of the Warrants shall
be adjusted as herein provided, or the rights of the Holder hereof shall change
by reason of other events specified herein, the Company shall compute the
adjusted Exercise Price and the adjusted number of Warrant Shares in accordance
with the provisions hereof and shall prepare an Officer's Certificate setting
forth the adjusted Exercise Price and the adjusted number of Warrant Shares
issuable upon the exercise of the Warrants or specifying the other shares of
stock, securities or assets receivable as a result of such change in rights,
and showing in reasonable detail the facts and calculations upon which such
adjustments or other changes are based. The Company shall cause to be mailed
to the Holder hereof copies of such Officer's Certificate together with a
notice stating that the Exercise Price and the number of Warrant Shares
purchasable upon exercise of the Warrants have been adjusted and setting forth
the adjusted Exercise Price and the adjusted number of Warrant Shares
purchasable upon the exercise of the Warrants.
Section III.9 Notifications to Holders. In case at any time the
Company proposes:
(a) to declare any dividend upon its Common Stock payable
in capital stock or make any special dividend or other distribution (other than
cash dividends) to the holders of its Common Stock;
(b) to offer for subscription pro rata to all of the
holders of its Common Stock any additional shares of capital stock of any class
or other rights;
(c) to effect any capital reorganization, or
reclassification of the capital stock of the Company, or consolidation, merger
or share exchange of the Company with another person, or sale, transfer or
other disposition of all or substantially all of its assets; or
(d) to effect a voluntary or involuntary dissolution,
liquidation or winding up of the Company, then, in any one or more of such
cases, the Company shall give the Holder hereof (a) at least 10 days' (but not
more than 90 days') prior written notice of the date of which the books of the
Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining rights to vote in respect of such
issuance, reorganization, reclassification, consolidation, merger, share
exchange, sale, transfer, disposition, dissolution, liquidation or winding up,
and (b) in the case of any such issuance, reorganization, reclassification,
consolidation, merger, share exchange, sale, transfer, disposition,
dissolution, liquidation or winding up, at least 10 days' (but not more than 90
days') prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause "(a)" shall also specify, in the
case of any such dividend, distribution or subscription rights, the date on
which the holders of Common Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause "(b)" shall also specify the date on which
the holders of Common Stock shall be entitled to exchange their Common Stock,
as the case may be, for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, share exchange, sale,
transfer, disposition, dissolution, liquidation or winding up, as the case may
be.
-8-
9
Section III.10 Company to Prevent Dilution. If any event or
condition occurs as to which other provisions of this Article III are not
strictly applicable or if strictly applicable would not fairly protect the
exercise or purchase rights of the Warrants evidenced hereby in accordance with
the essential intent and principles of such provisions, or that might
materially and adversely affect the exercise or purchase rights of the Holder
hereof under any provisions of this Warrant, then the Company shall make such
adjustments in the application of such provisions, in accordance with such
essential intent and principles, so as to protect such exercise and purchase
rights as aforesaid, and any adjustments necessary with respect to the Exercise
Price and the number of Warrant Shares purchasable hereunder so as to preserve
the rights of the Holder hereunder. In no event shall any such adjustment have
the effect of increasing the Exercise Price as otherwise determined pursuant
to this Article III except in the event of a combination of shares of the type
contemplated in Section 3.4 hereof, and then in no event to an amount greater
than the Exercise Price as adjusted pursuant to Section 3.4 hereof.
ARTICLE IV
MISCELLANEOUS
Section IV.1 Entire Agreement. This Warrant, together with the
Agreement, contain the entire agreement between the Holder hereof and the
Company with respect to the Warrant Shares purchasable upon exercise hereof and
the related transactions and supersedes all prior arrangements or
understandings with respect thereto.
Section IV.2 Governing LAW. THIS WARRANT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section IV.3 Waiver and Amendment. Any term or provision of this
Warrant may be waived at any time by the party which is entitled to the
benefits thereof and any term or provision of this Warrant may be amended or
supplemented at any time by agreement of the Holder hereof and the Company,
except that any waiver of any term or condition, or any amendment or
supplementation, of this Warrant shall be in writing. A waiver of any breach
or failure to enforce any of the terms or conditions of this Warrant shall not
in any way effect, limit or waive a party's rights hereunder at any time to
enforce strict compliance thereafter with every term or condition of this
Warrant.
Section IV.4 Illegality. In the event that any one or more of the
provisions contained in this Warrant shall be determined to be invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
provisions of this Warrant shall not, at the election of the party for whom the
benefit of the provision exists, be in any way impaired.
Section IV.5 Copy of Warrant. A copy of this Warrant shall be
filed among the records of the Company.
Section IV.6 Notice. All notices, requests, demands or other
communications to or upon the respective parties hereto shall be deemed to have
been duly given or made when delivered to the party to which such notice,
request, demand or other communication is required or permitted to be given or
made under this Warrant addressed to such party at its address set forth below
or at such other address as either of the parties hereto may hereafter notify
the other in writing.
To Pledgor: INTELECT COMMUNICATION SYSTEMS LIMITED
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxxx Xxxxxxxx, Chairman and CEO
with a copy to: Xxxxxx X. Sudan, Jr.,
XXXX & SUDAN, L.L.P.
000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
-9-
10
Secured Party: THE COASTAL CORPORATION SECOND PENSION TRUST
Nine Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Corporate Secretary
with a copy to: THE COASTAL CORPORATION
Nine Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Director, Financial Administration
Section IV.7 Limitation of Liability; Not Stockholders. No
provision of this Warrant shall be construed as conferring upon the Holder
hereof the right to vote, consent, receive dividends or receive notices (other
than as herein expressly provided) in respect of meetings of stockholders for
the election of directors of the Company or any other matter whatsoever as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Holder hereof to purchase shares of Common Stock, and no mere
enumeration herein of the rights or privileges of the Holder hereof, shall give
rise to any liability of such holder for the purchase price of any shares of
Common Stock or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
Section IV.8 Exchange, Loss, Destruction, etc. of Warrant. Upon
receipt of evidence satisfactory to the Company of the loss, theft, mutilation
or destruction of this Warrant, and in the case of any such loss, theft or
destruction upon delivery of a bond of indemnity or such other security in such
form and amount as shall be reasonably satisfactory to the Company, or in the
event of such mutilation upon surrender and cancellation of this Warrant, the
Company will make and deliver a new Warrant of like tenor, in lieu of such
lost, stolen, destroyed or mutilated Warrant. Any Warrant issued under the
provisions of this Section 4.8 in lieu of any Warrant alleged to be lost,
destroyed or stolen, or in lieu of any mutilated Warrant, shall constitute an
original contractual obligation on the part of the Company. This Warrant shall
be promptly canceled by the Company upon the surrender hereof in connection
with any exchange or replacement. The Company shall pay all taxes (other than
securities transfer taxes or income taxes) and all other expenses and charges
payable in connection with the preparation, execution and delivery of Warrants
pursuant to this Section 4.8.
Section IV.9 Registration Rights. The Warrant Shares shall be
entitled to such registration rights under the Securities Act and under
applicable state securities laws as are specified in the Registration Rights
Agreement.
Section IV.10 Headings. The Article and Section and other headings
herein are for convenience only and are not a part of this Warrant and shall
not affect the interpretation thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be issued
as of the date above.
INTELECT COMMUNICATIONS SYSTEMS LIMITED
By: /s/ XXXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Chairman and CEO
-------------------------------------
-10-
11
SUBSCRIPTION NOTICE
The undersigned, the Holder of the foregoing Warrant, hereby elects to
exercise purchase rights represented thereby for and to purchase thereunder,
________ shares of the Common Stock covered by such Warrant, and herewith makes
payment in full for such shares pursuant to Section 1.1 of such Warrant, and
requests (a) that certificates for such shares (and any other securities or
other property issuable upon such exercise) be issued in the name of, and
delivered to _____________________________________ and (b), if such shares
shall not include all of the shares issuable as provided in such Warrant, that
a new Warrant of like tenor and date for the balance of the shares issuable
thereunder be delivered to the undersigned.
_________________________________________
Date:_________________________________
12
ASSIGNMENT
For value received, _______________________, hereby sells, assigns,
and transfers unto _________________________ the within Warrant, together with
all right, title and interest therein, and does hereby irrevocably constitute
and appoint ________________________ attorney, to transfer such Warrant on the
books of the Company, with full power of substitution.
_________________________________________
Date:_________________________________
