Exhibit 4.6
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED IN A TRANSACTION NOT
INVOLVING ANY PUBLIC OFFERING AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT AND LAWS. THIS WARRANT AND THE SHARES ISSUABLE
HEREUNDER ARE SUBJECT TO CERTAIN TRANSFER AND OTHER RESTRICTIONS SET OUT IN A
CERTAIN INVESTOR RIGHTS AGREEMENT DATED JULY 23,1999.
NET-tel Communications, Inc.
Washington, D.C.
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STOCK PURCHASE WARRANT
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August 2, 1999
1. Grant. NET-tel Communications, Inc. a Delaware corporation (hereinafter,
the Company), for value received hereby grants to Allied Capital Corporation, a
Maryland corporation or its registered assigns (hereinafter, Holder), or its
nominee, under the terms herein, the right to purchase 474,159.68 of the fully
paid and non-assessable shares of the Company's authorized but unissued $0.0001
par value common stock. The $0.0001 par value common shares of the Company are
sometimes hereinafter referred to as Common Stock. The Common Stock shares
issuable under this Warrant are sometimes hereinafter referred to as the Warrant
Shares. The number of Warrant Shares stated above is subject to certain
antidilution and other adjustments as set out below. Such number, as it may be
adjusted from time-to-time, is hereinafter referred to as the Warrant Number.
2. Warrant Purchase Agreement. This Warrant has been issued under the terms
of a Common Stock Warrant Purchase Agreement among the Company, the Holder and
certain other parties, dated this date (the Warrant Purchase Agreement);
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Warrant Purchase Agreement. This Warrant evidences the obligation of the
Company to issue shares of its capital stock, in the aggregate, corresponding to
One and Eight-Tenths percent (1.8%) of such stock, calculated on a Fully-Diluted
Basis as of Closing. The Holder is entitled to the benefits of the Warrant
Purchase Agreement and all of the exhibits thereto, and reference is made
thereto for a description of the rights and remedies thereunder.
3. Term. The right to exercise this Warrant shall expire seven (7) years
after the date hereof.
4. Exercise Price. The exercise price of this Warrant (the Exercise Price)
shall be $100, expressed for the entire Warrant, not on a per-share basis.
5. Anti-dilution and Other Adjustments.
(a) Issuance of Additional Stock; Increase in Warrant Number. If the
Company at any time after the date hereof shall issue or be deemed to have
issued any Additional Stock for a per-share consideration less than the Base
Price in effect immediately prior to such issuance or deemed issuance, the
Warrant Number after such issuance shall increase to equal the number determined
by multiplying the Warrant Number in effect immediately prior to such issuance
by a fraction, (i) the denominator of which shall be the number of shares of
Common Stock issued and outstanding (or deemed issued) on a Fully Diluted Basis
immediately prior to such issuance plus the number of shares of Common Stock
which the aggregate consideration received by the Company for such Additional
Stock would purchase at the Base Price immediately prior to such issuance, and
(ii) the numerator of which shall be the number of shares of Common Stock issued
and outstanding (or deemed issued) on a Fully Diluted Basis immediately after
such issuance; provided, however, that the Warrant Number shall not increase in
the event of any issuance of Additional Stock that is either Employee Stock or
Excluded Stock as defined in this sub-paragraph. Employee Stock shall mean
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Common Stock, and/or options, warrants or other rights to purchase Common Stock,
(i) issued or granted to officers, directors, employees or agents of the Company
or any subsidiary of the Company pursuant to any employee stock option plan or
arrangement, employee stock purchase plan or arrangement, or other equity
incentive, bonus, or similar plan or arrangement approved by the board of
directors of the Company (the Board of Directors), provided the total does not
exceed twenty percent (20%) of the shares of Common Stock then outstanding
and/or issuable upon conversion of the outstanding convertible securities,
options, warrants or other rights to acquire Common Stock (the Fully Diluted
Common Stock); (ii) issued or granted pursuant to written agreements with
"branchisees" or similar agreements with "branchisees" or similar agents of the
Company or any subsidiary, provided that any options, warrants or other rights
granted thereunder with respect to Common Stock shall be exercisable at not less
than fair market value (as determined by the Board of Directors) as of the date
of grant; and provided further, that the total shares of Common Stock issuable
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upon the exercise of all such options, warrants or other rights shall not exceed
five percent (5%) of the Fully Diluted Common Stock as of any such grant date;
or (iii) approved by the holders of at least 66 2/3% of the shares of Series B
preferred stock of the Company (the Series B Stock) then outstanding, voting
separately as a class. Excluded Stock shall mean (i) Common Stock issuable upon
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conversion of shares of Series B Stock which were issued for a consideration of
$7,730 or more per Series B Stock share, (ii) Employee Stock, or (iii) Common
Stock issuable upon the exercise of this Warrant.
(b) Decrease in Base Price. The Base Price shall initially be $7.73 per
share. Whenever the Warrant Number increases according to sub-paragraph (a)
above, the Base Price shall thereupon decline according to the following
equation:
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X = (AP + C) / B
wherein
X = the Base Price to be in effect immediately after the subject issuance or
sale;
A = the number of shares of Common Stock issued and outstanding (or deemed to be
issued) on a Fully Diluted Basis immediately before such issuance or sale;
B = the number of shares of Common Stock issued and outstanding (or deemed to be
issued) on a Fully Diluted Basis immediately after such issuance or sale;
P = the Base Price as in effect immediately prior to such issuance or sale; and
C = the net consideration received for such issuance or sale.
(c) Options and Warrants. If the Company shall at any time other than
pursuant to this Warrant or with respect to Employee Stock or Excluded Stock,
issue or grant any options or rights to subscribe for or to purchase Common
Stock, all shares of Common Stock which the holders of such options or rights
shall be entitled to subscribe for or to purchase thereunder shall be deemed to
be issued as of the date of the issuing or granting of such options or rights;
and the minimum aggregate consideration specified in such options or rights for
the shares covered thereby, plus the cash consideration, if any, received by the
Company for the issuance of such options or rights, shall be deemed to be the
consideration actually received by the Company for the issuance of such shares;
except as may be provided in subparagraph (n) below, no further adjustments to
the Warrant Number or the Base Price shall be made upon the actual issuance of
Common Stock upon exercise of such options or rights;
(d) Convertible Securities. If the Company shall at any time other than
pursuant to this Warrant or with respect to Employee Stock or Excluded Stock,
issue any stock or obligations directly or indirectly convertible into or
exchangeable for Common Stock, then such issuance shall be deemed to be an
issuance (as of the date of issue of such stock or obligations) of the total
maximum number of shares of Common Stock necessary to effect the exchange or
conversion of all such stock or obligations. The amount received or receivable
by the Company in consideration for the issuance of such stock or obligations
(deducting therefrom any commissions or expenses paid or incurred by the Company
for any underwriting of, or otherwise in connection with, such issuance), plus
the minimum aggregate amount of premiums, if any, payable to the Company upon
exchange or conversion, shall be deemed to be the consideration actually
received by the Company for such Common Stock; except as may be provided in
subparagraph (n) below, no further adjustments to the Warrant Number or the Base
Price shall be made upon the actual issuance of Common Stock upon the conversion
or exchange of such stock or obligations;
(e) Calculation of Consideration. In the case of an issuance of Common
Stock for cash, the consideration received by the Company therefor shall be
deemed to be the net proceeds received for such shares, deducting therefrom any
commissions or expenses paid or incurred by
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the Company for any underwriting of, or otherwise in connection with, the issue
of such shares; provided, however, that in any such case where the shares of
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Common Stock so issued are part of a unit or combination of securities of the
Company consisting of one or more shares of Common Stock and other securities of
the Company, if the amount of the cash consideration received by the Company for
the Stock so issued is not deterrminable at the time of such issuance, such
amount shall be deemed to be such portion of the total cash consideration
received by the Company for such units or combinations as reasonably determined
in good faith by the Company's Board of Directors, regardless of the accounting
treatment thereof by the Company;
(f) Non-Cash Consideration. In the case of an issuance (other than as a
dividend or other distribution on any Common Stock or upon conversion or
exchange of other securities of the Company) of shares of Additional Stock for a
consideration part or all of which shall be other than cash, the amount of such
consideration other than cash shall for purposes of this Warrant be the fair
market value of such consideration as reasonably determined in good faith by the
Company's Board of Directors regardless of the accounting treatment thereof by
the Company;
(g) Resale of Treasury Stock. The sale or other disposition of any shares
of Common Stock of the Company or other securities held in the treasury of the
Company today, or of any securities resulting from any reclassification or
reclassifications of such shares or other securities which were effected while
they were held in the treasury of the Company, shall be deemed an issuance
thereof; provided, however, that if any such share or other security is sold or
disposed of and subsequently re-acquired by the Company, no future sale or other
disposition thereof shall be deemed an issuance thereof.
(h) Stock Split or Dividend. In case the shares of Common Stock at any
time outstanding shall be subdivided into a greater or combined into a lesser
number of shares of Common Stock, by stock-split, reverse split or otherwise, or
in case shares of Common Stock shall be issued as a stock dividend, the Warrant
Number and the Base Price, shall be increased or decreased, as applicable, to
amounts which shall bear the same relation to the Warrant Number and the Base
Price in effect immediately prior to such subdivision, combination or stock
dividend as the total number of shares of Common Stock issued and outstanding
(or deemed issued) immediately prior to such subdivision, combination or stock
dividend shall bear to the total number of shares of Common Stock issued and
outstanding (or deemed issued) immediately after such subdivision, combination
or stock dividend; an adjustment pursuant to this subparagraph shall become
effective immediately after the effective date of such subdivision, combination
or stock dividend, retroactive to the record date (if any) for such subdivision,
combination or stock dividend;
(i) Adjustment for initial Errors. The Warrant Number specified in
paragraph 1 above was calculated upon the Company's representation of the amount
of outstanding Common Stock on a Fully Diluted Basis as of Closing and with the
intention that the full exercise of this Warrant will result in the holders
thereof obtaining Common Stock constituting a certain percentage of the
Company's equity securities, calculated on such basis. If for any reason it
shall hereafter be determined that such representation is incorrect and the
actual amount of such Common Stock corresponding to such percentage is greater
than as specified in paragraph 1, then
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the Company or the Holder (whichever shall discover such error) shall notify the
other of such determination and the Company shall forthwith reissue this
Warrant, with an appropriate proportional adjustment in the Warrant Number to be
effective from the date hereof.
(j) Merger. In case of any capital reorganization, or any reclassification
of the Common Stock of the Company, or in case of any consolidation of the
Company with or the merger of the Company into any other entity (other than a
consolidation or merger in which the Company is the surviving entity), this
Warrant shall after such reorganization, reclassification, consolidation or
merger be exercisable upon the terms and conditions specified herein, for the
number of shares of stock or other securities or property of the Company, or of
the other entity resulting from such consolidation or surviving such merger (as
the case may be), which the holder of this Warrant would have been entitled to
receive, under the terms of such reorganization, reclassification, consolidation
or merger, if this Warrant had been exercised in full prior to such
reorganization, reclassification, consolidation or merger. In any such case, if
necessary, the provision set forth in this Warrant with respect to the rights
and interests thereafter of the Holder shall be appropriately adjusted so as to
be applicable, as nearly as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the exercise of this Warrant.
The subdivision or combination of shares of Common Stock at any time outstanding
into a greater or lesser number of shares of Common Stock shall not be deemed to
be a reclassification of the Common Stock of the Company for the purposes of
this subparagraph. The Company shall not effect any such consolidation or merger
unless, prior to or simultaneously with the consummation thereof, the surviving
entity (if other than the Company) resulting from such consolidation or merger
shall assume, by written agreement executed and delivered to the Company, the
obligation to deliver to the Holder such shares of stock, securities or assets
to which in accordance with the foregoing provisions, such Holder may be
entitled, as well as any other obligations arising under this Warrant;
(k) Dividends in Kind. If the Company shall declare a dividend upon Common
Stock payable other than from earnings or earned surplus or other than in shares
of Common Stock or stock or obligations directly or indirectly convertible into
or exchangeable for Common Stock, the holder of this Warrant shall, upon
exercise hereof in whole or in part, be entitled, in addition to the shares of
Common Stock deliverable upon such exercise, to the cash, stock or other
securities or property which Holder would have received as dividends if
continuously since the date hereof such Holder
(i) had been the holder of record of the Common Stock deliverable upon
such exercise, and
(ii) had retained all dividends in stock or other securities (other
than shares of Common Stock or such convertible or exchangeable stock or
obligations) paid or payable in respect of such Common Stock or in respect of
any such stock or other securities so paid or payable as such dividends.
For purposes of this subparagraph, a dividend payable other than in cash shall
be considered to be payable from earnings or earned
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surplus only to the extent that such earnings or earned surplus shall be charged
in an amount equal to the fair value of such dividend as determined in good
faith by the Board of Directors of the Company;
(l) Adjustments to Numbers of Other Securities. If as a result of any
provision of this paragraph 5 the Holder shall become entitled to acquire any
securities of the Company other than or in addition to Common Stock, the number
or amount of such other securities to which the Holder is entitled shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions applicable to the Warrant Number,
and the provisions of this paragraph with respect thereto shall apply as nearly
as may be practicable to such other securities.
(m) De Minimis. Anything in this paragraph to the contrary
notwithstanding, no adjustment shall be made hereunder in any case where the
increase in the Warrant Number would be less than one (1) share of Common Stock;
but in such case any adjustment that would otherwise be made shall be delayed
and the adjustment shall be made only after the next issuance or deemed issuance
of Additional Stock which, together with any and all such issuances, shall
entitle Holder to receive at least one (1) whole additional share of such stock;
(n) Changes to Options and Convertible Securities. Upon any change to the
consideration specified in any option or night described in subparagraph (c),
above for the Common Stock issuable thereunder, or to the rate of conversion or
exchange specified in any stock or obligation described in subparagraph (d)
above, in any case where the issuance or grant thereof had previously been the
basis for an adjustment of the Warrant Number and the Base Price, the Warrant
Number and the Base Price then in effect shall forthwith be readjusted to the
Warrant Number and the Base Price which would have been in effect if the
adjustments made upon the original issuance or grant thereof had been made on
the basis of such consideration or rate as so changed. Upon the exercise of
options or rights described in subparagraph (c) hereof, in any case where the
issuance or grant thereof had previously been the basis for an adjustment of the
Warrant Number and the Base Price, if the actual aggregate consideration
received for the shares covered thereby is greater than the minimum
consideration which was deemed to have been received according to such
subparagraph, the Warrant Number and the Base Price in effect at the time of
such exercise shall forthwith be readjusted to the Warrant Number and the Base
Price which would have been in effect if the adjustment made upon the issuance
or grant thereof had been made on the basis of such consideration actually
received. Likewise, upon the conversion or exchange of stock or obligations
described in subparagraph (d), above, in any case where the issuance thereof had
previously been the basis for an adjustment of the Warrant Number and the Base
Price, if the actual number of shares of Common Stock issued upon such
conversion or exchange shall be less than the maximum number deemed, according
to such subparagraph, to have been issued, or if the actual aggregate premium
paid to the Company upon such conversion or exchange shall be greater than the
minimum premium deemed (according to such subparagraph,) to have been paid, the
Warrant Number and the Base Price in effect at the time of such conversion or
exchange shall forthwith be readjusted to the Warrant Number and the Base Price
which would have been in effect if the adjustment on the original issuance
thereof had been made on the basis of the actual number of shares issued or, (as
the case may be) the actual premium paid.
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(o) Expiration of Options; Retirement of Convertible Securities. Upon the
expiration or lapse of options or rights described in subparagraph (c) above in
any case where the issuance or grant thereof had previously been the basis for
an adjustment of the Warrant Number and the Base Price, the Warrant Number and
the Base Price then in effect shall forthwith be readjusted to the Warrant
Number and the Base Price which would have been in effect if the adjustments
made upon the original issuance or grant of such options or rights had excluded
from the calculation of Common Stock issued and outstanding (or deemed issued)
immediately after such issuance or grant, all Common Stock which the holders of
such expired or lapsed options or rights had been entitled to acquire
thereunder, and had excluded from the calculation of consideration deemed to
have been received by the Company, the consideration deemed by the terms of sub-
paragraph (c) to have been received for such expired or lapsed options or
warrants. Upon the retirement without conversion or exchange of obligations
described in subparagraph (d) above in any case where the issuance thereof had
previously been the basis for an adjustment of the Warrant Number and the Base
Price, the Warrant Number and the Base Price then in effect shall forthwith be
readjusted to the Warrant Number and the Base Price which would have been in
effect if the adjustments made upon the original issuance of such obligations
had excluded from the calculation of Common Stock issued and outstanding (or
deemed issued) immediately after such issuance, all Common Stock which the
holders of such retired obligations had been entitled to acquire thereunder, and
had excluded from the calculation of consideration deemed to have been received
by the Company, all consideration deemed, by the terms of subparagraph (d), to
have been received for such retired obligations.
6. Covenants As To Par Value, Authority and Charges. If at any time the per
share exercise price of this Warrant shall be less than the par value of one
share of Common Stock, the Company shall take such action as shall be necessary
to reduce such par value to an amount less than the per share exercise price of
this Warrant. The Company shall take such action as shall be necessary to
maintain the authority to issue validly, upon exercise hereof according to the
terms herein, the number of shares of Common Stock provided herein, and shall
cause such shares, upon payment of the Exercise Price, to be fully paid, free of
preemptive rights and free from all taxes, liens, security interests and charges
with respect to the issuance thereof.
7. Notice of Stock Sales and Other Adjustments. Whenever there is an issuance
or sale of Additional Stock, the Company shall promptly place on file at the
Company's principal office a certificate signed by its Chief Financial Officer
stating the per-share price applicable to the transaction, a detailed
calculation of such price, the number of shares of Common Stock sold or issued,
the consideration received, and all fees and expenses incurred, and further
describing the transaction in detail and the adjustments (if any) to the Base
Price and the Warrant Number resulting therefrom; and cause a copy of such
certificate to be sent to the Holder. Whenever the number of Warrant Number or
the Base Price shall change other than upon the issuance of Additional Stock,
the Company shall promptly notify the Holder in writing of such change and
deliver to Holder a statement setting forth the Warrant Number and the Base
Price after such adjustment(s), and a brief statement of the facts requiring
such adjustment(s) and the computation by which such adjustment(s) was made.
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8. Holder's Rights to Redemptions and Dividends. The Holder shall be entitled
to a ratable portion of any redemption of stock by the Company from Gold & Appel
Transfer, S.A., James Kenefick, or any other owner of at least fifteen percent
of the Common Stock (a Qualifying Redemption). If the Company makes a Qualifying
Redemption or otherwise purchases for value any of its Common Stock from any
owner of stock described in the preceding sentence prior to full exercise of
this Warrant, the Company shall provide to the Holder at the time of the
exercise hereof, in addition to the Warrant Shares, the same proceeds the Holder
would have been entitled to receive if this Warrant had been exercised in full
prior to the record date for such redemption and Holder had been entitled to
have a ratable portion of its Warrant Shares redeemed at the same price per
Share. Likewise, the Holder will be entitled to a ratable portion of any
dividends or other distributions paid by the Company. If the Company pays any
dividend or makes any distribution (whether in cash, property or securities) to
the holders of Common Stock prior to full exercise of this Warrant, then the
Company shall provide the Holder, at the time of exercise hereof, in addition to
the Warrant Shares, the same proceeds the Holder would have been entitled to
receive on the Warrant Shares if this Warrant had been exercised in full prior
to the record date for such dividend or distribution or, if no record is taken,
the date as of which the record holders of Common Stock entitled to such
dividend or distribution are to be determined.
9. Exercise Procedure.
(a) Unconditional Subscription. This Warrant may be exercised by
presenting it and tendering the aggregate Exercise Price in legal tender or by
bank's, cashier's or certified check to the Company at its address specified in
the Warrant Purchase Agreement, along with written subscription substantially in
the form of Exhibit 9.00 hereof. The date on which this Warrant is thus
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presented, accompanied by tender or payment as hereinbefore or hereinafter
provided, is referred to herein as the Exercise Date. The Company shall
forthwith at its expense (including the payment of issue taxes), issue and
deliver the proper number of shares of Common Stock, and such shares shall be
deemed validly issued for all purposes as of the opening of business on the
Exercise Date regardless of any delay in the actual issuance.
(b) Conditional Exercise. This Warrant may also be exercised conditionally
in contemplation of the future consummation of one or more transactions, by
presenting it and tendering the aggregate Exercise Price in the manner specified
in subparagraph (a) above, along with a notice clearly stating the conditional
nature of the exercise, specifying the conditions precedent to the exercise in
reasonable detail and the date after which the exercise shall be deemed
withdrawn if such conditions remain unsatisfied, and otherwise containing the
information called for in Exhibit 9.00. Upon such presentment, tender and
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notice, if the specified conditions are satisfied within the specified period
without prior revocation of the exercise by Holder, the Company shall forthwith
issue and deliver the proper number of shares of Common Stock in the manner
described above. In such case, the date on which the last remaining condition
was met shall be referred to herein as the Exercise Date, and such shares shall
be deemed validly issued for all purposes as of the opening of business on such
exercise date, regardless of any delay in the actual issuance. If, on the other
hand, after any such presentment, tender and notice, any condition is
unsatisfied on the specified date, or if the Holder revokes such exercise in
writing prior to the satisfaction of all conditions, the Company shall forthwith
return
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this Warrant and the Exercise Price to the Holder and this Warrant shall be
deemed not to have been exercised.
10. Exchange of Shares for Exercise Price. The Holder at its option may
provide the Exercise Price under this Warrant by reducing the number of shares
for which the Warrant is otherwise exercisable by the number of shares having
fair market value equal to the Exercise Price. In such a case, delivery of the
Exercise Price shall be effected by Holder's written notice to the Company of
such reduction. For purposes hereof, the average of any publicly-reported
closing bid and asked prices for the Common Stock on the last ten (10) trading
days prior to the Exercise Date, shall be deemed to be the fair market value of
the Common Stock.
11. Sale or Exchange of Company or Assets. If prior to the exercise in full
hereof, the Company sells or exchanges all or substantially all of its assets,
or all or substantially all the outstanding Common Stock is sold or exchanged to
any party other than the Holder, then the Holder at its option may receive upon
exercise hereof, in lieu of the Warrant Shares, such money or property it would
have been entitle to receive if this Warrant had been exercised in full prior to
such sale or exchange.
12. Resale of Warrant or Shares. Neither this Warrant nor other shares of
common stock issuable upon exercise hereof, have been registered under the
Securities Act of 1933 as amended, or under the securities laws of any state.
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Neither this Warrant nor any shares when issued may be sold, transferred,
pledged or hypothecated in the absence of (i) an effective registration
statement for this Warrant or the shares, as the case may be, under the
Securities Act of 1933 as amended and such registration or qualification as may
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be necessary under the securities laws of any state, or (ii) an opinion of
counsel reasonably satisfactory to the Company that such registration or
qualification is not required. The Company shall cause a certificate or
certificates evidencing all or any of the shares issued upon exercise hereof
prior to said registration and qualification of such shares to bear the
following legend:
The shares evidenced by this certificate have not been registered
under the Securities Act of 1933 as amended, or under the securities
----------------------
laws of any state. The shares may not be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement
under the Securities Act of 1933, as amended, and such registration or
----------------------
qualification as may be necessary under the securities laws of any
state, or an opinion of counsel satisfactory to the Company that such
registration or qualification is not required.
13. Transfer. This Warrant shall be registered on the books of the Company
which shall be kept at its principal office for that purpose, and shall be
transferable in whole or in part but only on such books by the Holder in person
or by duly authorized attorney with written notice substantially in the form of
Exhibit 13.00 hereof, and only in compliance with the preceding paragraph. The
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Company may issue appropriate stop orders to its transfer agent to prevent a
transfer in violation of the preceding paragraph.
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14. Closing of Books. The Company shall not close its transfer books against
the transfer of this Warrant or any Common Stock or other securities issuable
upon the exercise of this Warrant in any manner which interferes with the
exercise of this Warrant.
15. Replacement of Warrant. At the request of the Holder and on production of
evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant and (in the case of loss, theft, or destruction)
if required by the Company, upon delivery of an indemnity agreement with surety
in such reasonable amount as the Company may determine thereof, the Company at
its expense will issue in lieu thereof a new Warrant of like tenor.
16. Investment Covenant. The Holder by its acceptance hereof covenants that
this Warrant is, and any stock issued hereunder will be, acquired for investment
purposes, and that the Holder will not distribute the same in violation of any
state or federal law or regulation.
17. Notice. Any notice or other communication required by this Warrant to be
given to the Holder shall be provided according to the notice provisions in the
Warrant Purchase Agreement.
18. Waiver of Jury Trial. THE COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY OF ALL
CLAIMS, DEFENSES, COUNTERCLAIMS AND SUITS OF ANY KIND DIRECTLY OR INDIRECTLY
ARISING FROM OR RELATING TO THIS WARRANT OR THE DEALINGS OF THE PARTIES IN
RESPECT HERETO. THE COMPANY ACKNOWLEDGES AND AGREES THAT THIS PROVISION IS A
MATERIAL TERM OF THIS WARRANT AND THAT THE HOLDER WOULD NOT EXTEND ANY FUNDS
UNDER THE LOAN DOCUMENTS IF THIS WAIVER OF JURY TRIAL WERE NOT A PART OF THIS
WARRANT. THE COMPANY ACKNOWLEDGES THAT THIS IS A WAIVER OF A LEGAL RIGHT AND
THAT IT MAKES THIS WAIVER VOLUNTARILY AND KNOWINGLY AFTER CONSULTATION WITH, OR
THE OPPORTUNITY TO CONSULT WITH, COUNSEL OF ITS CHOICE. THE COMPANY AGREES THAT
ALL SUCH CLAIMS, DEFENSES, COUNTERCLAIMS AND SUITS SHALL BE TRIED BEFORE A JUDGE
OF A COURT OF COMPETENT JURISDICTION, WITHOUT A JURY.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on its
behalf by its undersigned officer, and its corporate seal to be hereunto
affixed, as of the date first above written.
Net-tel Communications, Inc.
Attest:
By: /s/ Thomas Lera By: /s/ James F. Kenefick
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Thomas Lera, Secretary James F. Kenefick, President
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Exhibit 9.00
IRREVOCABLE SUBSCRIPTION
To: Net-Tel Communications, Inc.
Gentlemen:
The undersigned hereby elects to exercise its right under the attached Warrant
by purchasing _________________ shares of the Common Stock of your company, and
hereby irrevocably subscribes to such issue. The certificates for such shares
shall be issued in the name of
- ------------------------------------------------------------------------------
(Name)
- ------------------------------------------------------------------------------
(Address)
- ------------------------------------------------------------------------------
(Taxpayer Number)
and deliver to _______________________________________________________________
(Name)
- ------------------------------------------------------------------------------
(Address)
The exercise price of $________________ is enclosed.
Date:__________________________________________
Signed:________________________________________ (Name of Holder, Please Print)
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(Address)
- ------------------------------------------------------------------------------
(Signature)
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Exhibit 13.00
ASSIGNMENT
FOR VALUE RECEIVED: __________________________________________________________
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(Name)
- ------------------------------------------------------------------------------
(Address)
the attached Warrant together with all right, title and
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interest therein, and does hereby irrevocably appoint ______________________
attorney to transfer said Warrant on the books of Net-Tel Communications, Inc.,
with full power of substitution in the premises.
Done this _____ day of _______________, 19___.
Signed:______________________________________
By:__________________________________________
Its:_________________________________________
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