1
Exhibit 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE. NEITHER THIS WARRANT OR SUCH SECURITIES MAY
BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS, OR SOME EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND LAWS, OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR LAWS,
OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
WARRANT TO PURCHASE COMMON STOCK
OF
GOAMERICA, INC.
This Warrant is issued to Dell Ventures, L.P., a Texas limited
partnership, or its registered assigns ("Holder"), by GoAmerica, Inc., a
Delaware corporation (the "Company"), on November 14, 2000 (the "Warrant Issue
Date").
1. Purchase of Shares. Subject to the terms and conditions
hereinafter set forth, the Holder is entitled, upon surrender of this Warrant at
the principal office of the Company (or at such other place as the Company shall
notify the holder hereof in writing), to purchase from the Company five hundred
sixty-three thousand, eight hundred sixty-four (563,864) shares of common stock,
par value $0.01 per share, of the Company (the "Common Stock"). The number of
shares of Common Stock issuable pursuant to this Section 1 (the "Shares") shall
be subject to adjustment pursuant to Section 8 hereof.
2. Exercise Price. The purchase price for the Shares shall be
$16.00 per share, and shall be subject to adjustment pursuant to Section 8
hereof (such price, as adjusted from time to time, is herein referred to as the
"Exercise Price").
3. Exercise Period. This Warrant shall be exercisable, in whole
or in part, during the term commencing on the Warrant Issue Date and ending at
5:00 p.m., Austin, Texas time, three years after the Warrant Issue Date.
4. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall
be effected by:
2
(a) the surrender of the Warrant, together with a duly
executed copy of the form of Notice of Election attached hereto, to the
Secretary of the Company at its principal offices; and
(b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. Net Exercise. In lieu of exercising this Warrant pursuant
to Section 4, the Holder may elect to receive, without the payment by the Holder
of any additional consideration, shares of Common Stock equal to the value of
this Warrant (or the portion thereof being canceled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to the holder hereof a number
of shares of Common Stock computed using the following formula:
Y (A - B)
---------
X = A
Where: X = The number of shares of Common Stock to be issued to
the Holder pursuant to this net exercise;
Y = The number of Shares in respect of which the net
issue election is made;
A = The fair market value of one share of the Common Stock
at the time the net issue election is made;
B = The Exercise Price (as adjusted to the date of the net
issuance).
For purposes of this Section 5, the fair market value of one share of Common
Stock as of a particular date shall be determined as follows: (i) if traded on a
securities exchange or through the Nasdaq National Market, the value shall be
deemed to be the average of the closing prices of the securities on such
exchange over the thirty (30) day period ending three (3) days prior to the net
exercise election; (ii) if traded over-the-counter, the value shall be deemed to
be the average of the closing bid or sale prices (whichever is applicable) over
the thirty (30) day period ending three (3) days prior to the net exercise; and
(iii) if there is no active public market, the value shall be the fair market
value thereof, as determined in good faith by the Board of Directors of the
Company.
6. Certificates for Shares. Upon the exercise of the purchase
rights evidenced by this Warrant, one or more certificates for the number of
Shares so purchased shall be issued as soon as practicable thereafter (with
appropriate restrictive legends, if applicable), and in any event within thirty
(30) days of the delivery of the subscription notice.
7. Issuance of Shares. The Company covenants that the Shares,
when issued pursuant to the exercise of this Warrant, will be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens, and charges
with respect to the issuance thereof. The Company further covenants and agrees
that during the period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized and
2
3
reserved, for the purpose of issue or transfer upon exercise of the rights
evidenced by this Warrant, a sufficient number of shares of authorized but
unissued Common Stock, or other securities and property, when and as required to
provide for the exercise of the rights represented by this Warrant. The Company
will take all such 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 any domestic securities
exchange upon which the Common Stock may be listed.
8. Adjustment of Exercise Price and Number of Shares. The
number of and kind of securities purchasable upon exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time prior to the expiration of this Warrant subdivide its
Common Stock, by split-up or otherwise, or combine its Common Stock, or issue
additional shares of its Common Stock as a dividend with respect to any shares
of its Common Stock, the number of Shares issuable on the exercise of this
Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the purchase price
payable per share, but the aggregate purchase price payable for the total number
of Shares purchasable under this Warrant (as adjusted) shall remain the same.
Any adjustment under this Section 8(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as of
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
(b) Reclassification, Reorganization and Consolidation. In
case of any reclassification, capital reorganization, or change in the Common
Stock of the Company (other than as a result of a subdivision, combination, or
stock dividend provided for in Section 8(a) above), then, as a condition of such
reclassification, reorganization, or change, lawful provision shall be made, and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall have the right at any
time prior to the expiration of this Warrant to purchase, at a total price equal
to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities and property receivable in connection with such
reclassification, reorganization, or change by a holder of the same number of
shares of Common Stock as were purchasable by the Holder immediately prior to
such reclassification, reorganization, or change. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
so that the provisions hereof shall thereafter be applicable with respect to any
shares of stock or other securities and property deliverable upon exercise
hereof, and appropriate adjustments shall be made to the purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same.
(c) Distributions of Other Property. In case the Company
shall distribute to all holders of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated earnings
or earned surplus and dividends or distributions referred to in paragraph (a)
above) or rights, options, or warrants, or convertible or exchangeable
securities containing the
3
4
right to subscribe for or purchase debt securities, assets, or other securities
of the Company (excluding those referred to in paragraph (a) above), then in
lieu of an adjustment in the number of shares of Common Stock purchasable upon
the exercise of this Warrant, the Holder upon the exercise thereof at any time
after such distribution shall be entitled to receive from the Company the stock
or other securities to which the Holder would have been entitled if the Holder
had exercised the Warrant immediately prior thereto, all subject to further
adjustment as provided in this Section 8; provided, however, that no adjustment
in respect of cash dividends or interest on such stock or other securities shall
be made during the term of this Warrant or upon the exercise of this Warrant.
(d) Notice of Certain Events. If, at any time prior to the
expiration of this Warrant, (i) the Company shall declare any dividend on the
Common Stock payable in cash or shares of Common Stock, Common Stock or capital
stock of the Company; or (ii) the Company shall authorize the issuance to all
holders of shares of Common Stock of rights, options, or warrants to subscribe
for or purchase shares of Common Stock or Common Stock or of any other
subscription rights or warrants; or (iii) the Company shall authorize the
distribution to all holders of shares of Common Stock evidences of its
indebtedness or assets; or (iv) the Board of Directors of the Company shall have
approved any consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Company is required, or any sale or
lease of all or substantially all of the assets of the Company or any
reclassification or change of Common Stock issuable upon exercise of this
Warrant (other than a change in par value or as a result of a subdivision or
combination), or a tender offer or exchange offer for shares of Common Stock; or
(v) the voluntary or involuntary dissolution, liquidation, or winding up of the
Company occurs; or (vi) the Company proposes to take any action that would
require an adjustment in the number or kind of securities issuable upon exercise
of this Warrant pursuant to this Section 8; then the Company shall cause to be
given to the Holder, at least twenty calendar days prior to the applicable
record date specified, or promptly in the case of events for which there is no
record date, a written notice stating (A) the date as of which the holders of
record of shares of Common Stock to be entitled to receive any such dividends,
rights, options, warrants, or distribution are to be determined, or (B) the
initial expiration date set forth in any tender offer or exchange offer for
shares of Common Stock, or (C) the date on which any such consolidation, merger,
sale, lease, reclassification, change, dissolution, liquidation, or winding up
is expected to become effective or consummated, and the date as of which it is
expected that holders of record of shares of Common Stock shall be entitled to
exchange such shares for securities or other property, if any, deliverable upon
such consolidation, merger, sale, transfer, lease, reclassification, change,
dissolution, liquidation, or winding up.
(e) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of the
Warrant, or in the Exercise Price, the Company shall promptly notify the Holder
of such event and of the number of shares of Common Stock or other securities or
property thereafter purchasable upon exercise of this Warrant.
9. Registration Rights. The Holder of this Warrant is
entitled to all of the rights of a "Holder" under the Registration Rights
Agreement attached hereto as Exhibit A (the "New Registration Rights
Agreement"). The Company represents and warrants to the Holder that it has, on
or prior to the Warrant Issue Date, caused the New Registration Rights Agreement
to be delivered to the Holder. The Holder represents and warrants that the
Shares are not
4
5
considered "Registrable Securities" under that certain Registration Rights
Agreement dated January 28, 2000 between the Company, Dell USA L.P., Carousel
Capital Partners, L.P., Forstmann Little & Co. Equity Partnership - VI, L.P. and
Impact Venture Partners, L.P. (the "January Registration Rights Agreement"), and
that as such, the Holder of this Warrant has no rights as a "Holder" under the
January Registration Rights Agreement.
10. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
11. No Stockholder Rights. Prior to exercise of this Warrant, the
Holder shall not be entitled to any rights of a stockholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of stockholder meetings, and such Holder shall not be entitled to any
notice or other communication concerning the business or affairs of the Company.
However, nothing in this Section 11 shall limit the right of the Holder to be
provided the notices required under this Warrant.
12. Transfers of Warrant and Shares. Subject to compliance
with applicable federal and state securities laws, this Warrant and all rights
hereunder are transferable in whole or in part by the Holder to any person or
entity upon written notice to the Company. The transfer shall be recorded on the
books of the Company upon the surrender of this Warrant, properly endorsed, to
the Company at its principal offices, and the payment to the Company of all
transfer taxes and other governmental charges imposed on such transfer. In the
event of a partial transfer, the Company shall issue to the holders one or more
appropriate new warrants. A transfer of this Warrant or any Shares held by Dell
Ventures, L.P. or any affiliate of Dell Ventures, L.P. may be freely transferred
to any other subsidiary or affiliate of Dell Ventures, L.P. or The Dell
Foundation without prior consent from the Company, the furnishing of an opinion
of counsel to the Company, the filing of a registration statement to effect such
transfer or any other certification relating to such subsidiary's or affiliate's
status or financial condition.
13. Successors and Assigns. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company and the
Holders hereof and their respective successors and assigns.
14. Amendments and Waivers. Any term of this Warrant may be
amended and the observance of any term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Holder.
15. Assumption of Warrant. If at any time while this Warrant,
or any portion thereof, is outstanding and unexpired there shall be (i) an
acquisition of the Company by another entity by means of a merger,
consolidation, or other transaction or series of related transactions resulting
in the exchange of the outstanding shares of the Company's capital stock such
that stockholders of the Company prior to such transaction own, directly or
indirectly, less than 50% of the voting power of the surviving entity, or (ii) a
sale or transfer of all or substantially all of
5
6
the Company's assets to any other person, then, as a part of such acquisition,
sale or transfer, lawful provision shall be made so that the Holder shall
thereafter be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the Exercise Price then in effect,
the number of shares of stock or other securities or property of the successor
corporation resulting from such acquisition, sale or transfer which a holder of
the shares deliverable upon exercise of this Warrant would have been entitled to
receive in such acquisition, sale or transfer if this Warrant had been exercised
immediately before such acquisition, sale or transfer, all subject to further
adjustment as provided in Section 8 and, in any such case, appropriate
adjustment (as determined by the Company's Board of Directors) shall be made in
the application of the provisions herein set forth with respect to the rights
and interests thereafter of the Holder to the end that the provisions set forth
herein (including provisions with respect to changes in and other adjustments of
the number of Shares of the Holder is entitled to purchase) shall thereafter be
applicable, as nearly as possible, in relation to any shares of Common Stock or
other securities or other property thereafter deliverable upon the exercise of
this Warrant.
16. Notices. All notices required under this Warrant shall be
deemed to have been given or made for all purposes (i) upon personal delivery,
(ii) upon confirmation receipt that the communication was successfully sent to
the applicable number if sent by facsimile, (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail. Notices to the Company shall be sent
to the principal office of the Company (or at such other place as the Company
shall notify the Holder hereof in writing). Notices to the Holder shall be sent
to the address of the Holder on the books of the Company (or at such other place
as the Holder shall notify the Company hereof in writing).
17. Attorneys' Fees. If any action of law or equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to its reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which it may be entitled.
18. Captions. The section and subsection headings of this
Warrant are inserted for convenience only and shall not constitute a part of
this Warrant in construing or interpreting any provision hereof.
19. Governing Law. This Warrant shall be governed by the laws
of the State of Texas as applied to agreements among Delaware residents made
and to be performed entirely within the State of Delaware.
6
7
IN WITNESS WHEREOF, GoAmerica, Inc. caused this Warrant to be
executed by an officer thereunto duly authorized.
GOAMERICA, INC.
By: /s/ Francis J. Elenio
---------------------------------------
Name: Francis J. Elenio
Title: CFO
7
8
NOTICE OF EXERCISE
To: [GOAMERICA, INC.]
The undersigned hereby elects to [check applicable subsection]:
________ (a) Purchase _________________ shares of Common Stock of
GoAmerica, Inc., pursuant to the terms of the attached
Warrant and payment of the Exercise Price per share
required under such Warrant accompanies this notice;
OR
________ (b) Exercise the attached Warrant for [all of the shares]
[________ of the shares] [cross out inapplicable phrase]
purchasable under the Warrant pursuant to the net exercise
provisions of Section 5 of such Warrant.
The undersigned hereby represents and warrants that the undersigned
is acquiring such shares for its own account for investment purposes only, and
not for resale or with a view to distribution of such shares or any part
thereof.
WARRANTHOLDER:
Dell Ventures, L.P.
By: Dell Gen. P. Corp., its General Partner
By:
---------------------------------------
Print Name:
-------------------------------
Address:
------------------------------------------
------------------------------------------
Date:
-------------------
Name in which shares should be registered:
- ------------------------------------------