Exhibit 4.1
NEITHER THIS WARRANT NOR THE SECURITIES REPRESENTED HEREBY
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
SUCH ARE REGISTERED UNDER SUCH ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED
TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT
Warrant No. ______ Number of Shares: 20,000
Date of Issuance: December 3, 1999
WAVETECH INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
(Void after December 3, 2002)
WAVETECH International Inc., a Nevada corporation (the "Company"), for
value received, hereby certifies that Berni Holdings, S.A., P.O. Box 5080, 8022
Zurich, Switzerland, or its registered assigns (jointly or individually, the
"Registered Holder"), is entitled, subject to the terms set forth below, to
purchase from the Company, at any time or from time to time on or after the date
of issuance and on or before December 3, 2002 at not later than 5:00 p.m.
(Toronto, Ontario time), up to twenty thousand (20,000) shares of Common Stock
(post-split), $.00l par value per share, of the Company, at a purchase price of
$4.5625 per share. The shares purchasable upon exercise of this Warrant, and the
purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the "Warrant Shares"
and the "Purchase Price," respectively.
1. EXERCISE.
(a) This Warrant may be exercised by the Registered Holder, in whole or in
part, by surrendering this Warrant, with the purchase form appended
hereto as EXHIBIT I duly executed by such Registered Holder or by such
Registered Holder's duly authorized attorney, at the principal office
of the Company, or at such other office or agency as the Company may
designate, accompanied by payment in full, in lawful money of the
United States, of the Purchase Price payable in respect of the number
of Warrant Shares purchased upon such exercise.
(b) Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day (the "Exercise
Date") on which this Warrant shall have been surrendered to the
Company as provided in subsection 1(a) above. At such time, the person
Ex. 4.1 - 1
or persons in whose name or names any certificates for Warrant Shares
shall be issuable upon such exercise as provided in subsection 1(c)
below shall be deemed to have become the holder or holders of record
of the Warrant Shares represented by such certificates.
(c) As soon as practicable after the exercise of this Warrant in full or
in part, within ten (10) days thereafter, the Company, at its expense,
will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of
any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full Warrant
Shares to which such Registered Holder shall be entitled upon
such exercise plus, in lieu of any fractional share to which such
Registered Holder would otherwise be entitled, cash in an amount
determined pursuant to Section 3 hereof; and
(ii) in case such exercise is in part only, a new warrant or warrants
(dated the date hereof) of like tenor, calling in the aggregate
on the face or faces thereof for the number of Warrant Shares
equal (without giving effect to any adjustment therein) to the
number of such shares called for on the face of this Warrant
minus the sum of the number of such shares purchased by the
Registered Holder upon such exercise.
2. ADJUSTMENTS. The Purchase Price shall be subject to adjustment from time
to time pursuant to the terms of this Section 2.
(a) RECAPITALIZATIONS. If outstanding shares of the Company's Common Stock
shall be subdivided into a greater number of shares or a dividend in
Common Stock shall be paid in respect of Common Stock, the Purchase
Price in effect immediately prior to such subdivision or at the record
date of such dividend shall simultaneously with the effectiveness of
such subdivision or immediately after the record date of such dividend
be proportionately reduced. If outstanding shares of Common Stock
shall be combined into a smaller number of shares, the Purchase Price
in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be proportionately
increased.
(b) MERGERS, ETC. If there shall occur any capital reorganization or
reclassification of the Company's Common Stock (other than a
subdivision or combination as provided for in subsection 2(a) above),
or any consolidation or merger of the Company with or into another
corporation, or a transfer of all or substantially all of the assets
of the Company, then, as part of any such reorganization,
reclassification, consolidation, merger or sale, as the case may be,
lawful provision shall be made so that the Registered Holder of this
Warrant shall have the right thereafter to receive upon the exercise
hereof the kind and amount of shares of stock or other securities or
property which such Registered Holder would have been entitled to
receive if, immediately prior to any such reorganization,
reclassification, consolidation, merger or sale, as the case may be,
such Registered Holder had held the number of shares of Common Stock
which were then purchasable upon the exercise of this Warrant. In any
Ex. 4.1 - 2
such case, appropriate adjustment (as reasonably determined in good
faith by the Board of Directors of the Company) shall be made in the
application of the provisions set forth herein with respect to the
rights and interests thereafter of the Registered Holder of this
Warrant, such that the provisions set forth in this Section 2
(including provisions with respect to adjustment of the Purchase
Price) shall thereafter be applicable, as nearly as is reasonably
practicable, in relation to any shares of stock or other securities or
property thereafter deliverable upon the exercise of this Warrant.
(c) ADJUSTMENT IN NUMBER OF WARRANT SHARES. When any adjustment is
required to be made in the Purchase Price, the number of Warrant
Shares purchasable upon the exercise of this Warrant shall be changed
to the number determined by dividing (i) an amount equal to the number
of shares issuable upon the exercise of this Warrant immediately prior
to such adjustment, multiplied by the Purchase Price in effect
immediately prior to such adjustment, by (ii) the Purchase Price in
effect immediately after such adjustment.
(d) CERTIFICATE OF ADJUSTMENT. When any adjustment is required to be made
pursuant to this Section 2, the Company shall promptly mail to the
Registered Holder a certificate setting forth the Purchase Price after
such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Such certificate shall also set forth the
kind and amount of stock or other securities or property into which
this Warrant shall be exercisable following such adjustment.
3. FRACTIONAL SHARES. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares, but shall make an adjustment
therefor in cash on the basis of the Fair Market Value per share of Common
Stock. As issued herein "Fair Market Value" shall mean: (i) if the Common Stock
is listed on a nationally recognized securities exchange or over-the-counter
market, the last reported sale price or bid price, respectively, per share of
Common Stock on the Exercise Date, or the next preceding business day if no such
price is reported on the Exercise Date, or (ii) if the Common Stock is not
listed on a nationally recognized Securities exchange or over-the-counter
market, as determined by the Board of Directors.
4. REQUIREMENTS FOR TRANSFER.
(a) The Company or its agent will maintain a register containing the names
and addresses of the Registered Holders of this Warrant. Any
Registered Holder may change its or his address as shown on the
warrant register by written notice to the Company requesting such
change.
(b) This Warrant and the Warrant Shares shall not be sold or transferred
unless either (i) they first shall have been registered under the
Securities Act of 1933, as amended (the "Act"), or (ii) the Company
first shall have been furnished with an opinion of legal counsel,
reasonably satisfactory to the Company, to the effect that such sale
or transfer is exempt from the registration requirements of the Act.
Ex. 4.1 - 3
(c) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such securities are registered
under such Act or an opinion of counsel satisfactory to the
Company is obtained to the effect that such registration is not
required."
The foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the holder thereof, at such time as there is
an effective registration statement relating to the warrant shares or as they
become eligible for resale pursuant to Rule 144(k) under the Act.
(d) The Company is required to prepare and file a registration statement
under the Act relating to the Warrant Shares pursuant to Section 11 of
that certain Subscription Agreement dated as of December 3, 1999
between the Company and the Registered Holder which terms are
incorporated and made a part hereof.
5. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder of
this Warrant against impairment.
6. NOTICES OF RECORD DATE, ETC. In case:
(a) the Company shall take a record of the holders of its Common Stock (or
other stock or securities at the time deliverable upon the exercise of
this Warrant) for the purpose of entitling or enabling them to receive
any dividend or other distribution, or to receive any right to
subscribe for or purchase any shares of stock of any class or any
other securities, or to receive any other right; or
(b) of any capital reorganization of the Company, any reclassification of
the capital stock of the Company, any consolidation or merger of the
Company with or into another corporation (other than a consolidation
or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be, (i)
the date on which a record is to be taken for the purpose of such dividend,
Ex. 4.1 - 4
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least ten (10) days prior to the
record date or effective date for the event specified in such notice.
7. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant.
8. REPLACEMENT OF WARRANTS. Upon receipt 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) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
9. MAILING OF NOTICES, ETC. All notices and other communications from the
Company to the Registered Holder of this Warrant shall be mailed by first-class
certified or registered mail, postage prepaid, to the address furnished to the
Company in writing by the last Registered Holder of this Warrant who shall have
furnished an address to the Company in writing. All notices and other
communications from the Registered Holder of this Warrant or in connection
herewith to the Company shall be mailed by first-class certified or registered
mail, postage prepaid, to the Company at its principal office set forth below.
If the Company should at any time change the location of its principal office to
a place other than as set forth below, it shall give prompt written notice to
the Registered Holder of this Warrant and thereafter all references in this
Warrant to the location of its principal office at the particular time shall be
as specified in such notice.
10. NO RIGHTS AS STOCKHOLDER. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
11. HEADINGS. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
12. GOVERNING LAW. This Warrant will be governed by and construed in
accordance with the laws of the State of Arizona.
Ex. 4.1 - 5
WAVETECH INTERNATIONAL, INC.
By:
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Name:
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Title:
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ATTEST:
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Ex. 4.1 - 6