EXHIBIT 4.8
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RESTRICTION ON TRANSFER
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THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR APPLICABLE STATE SECURITIES LAWS, AND
CANNOT BE RESOLD UNLESS SUBSEQUENTLY REGISTERED UNDER THE ACT AND SUCH LAWS OR
UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
WARRANT
To purchase _______ shares of Common Stock of
Executive TeleCard, Ltd.
1. Grant of Warrant. This is to certify that, for value
received, __________________________ (the "Holder") is entitled to purchase,
subject to the provisions of this Warrant, from Executive TeleCard, Ltd. d/b/a
eGlobe, Inc., a Delaware corporation ("eGlobe"), an aggregate of ______ shares
of common stock, par value $.001 per share, of eGlobe (the "eGlobe Common
Stock") at a purchase price per share equal to $____ (the "Exercise Price"). The
number of shares of eGlobe Common Stock that may be received upon exercise of
this Warrant and the Exercise Price are subject to adjustment from time to time
as hereinafter set forth.
2. Term. This Warrant may be exercised in whole or in part at
any time or from time to time until _____________.
3. Exercise Procedures. In order to exercise this Warrant, the
Holder shall send a written notice of exercise to eGlobe on any business day at
eGlobe's principal office, addressed to the attention of the Treasurer of
eGlobe, which notice shall specify the number of shares for which this Warrant
is being exercised, and shall be accompanied by payment in full of the Exercise
Price of the shares for which this Warrant is being exercised. Payment of the
Exercise Price for the shares of eGlobe Common Stock purchased pursuant to the
exercise of this Warrant shall be made either in cash, by certified check or by
wire transfer. If the person or entity exercising this Warrant is not the
Holder, such person or entity shall also deliver, with the notice of exercise,
appropriate proof of the right of such person or entity to exercise this
Warrant. An attempt to exercise this Warrant granted hereunder other than as set
forth above shall be invalid and of no force and effect. Promptly after exercise
of this Warrant as provided for above, eGlobe shall deliver to the person
exercising this Warrant a certificate or certificates for the shares of eGlobe
Common Stock being purchased. In the event this Warrant is exercised in part
only, eGlobe shall, upon surrender of this Warrant for cancellation, execute and
deliver to the Holder a new Warrant of like tenor
evidencing the right of the Holder to purchase the balance of the shares of
eGlobe Common Stock subject to purchase hereunder. Such stock certificate or
certificates shall be appropriately legended to the extent required by federal
or state securities laws. All shares of eGlobe Common Stock issued upon exercise
of this Warrant shall be duly authorized and validly issued, fully paid and
nonassessable.
4. Transferability. This Warrant may not be transferred by the
Holder in whole or in part, other than to an affiliate of the Holder and the
managers, members and debt holders of Holder, without the prior written consent
of eGlobe.
5. Reservation of Stock; Compliance. eGlobe hereby agrees that
at all times there shall be reserved for issuance and/or delivery upon exercise
of this Warrant, free from preemptive rights, such number of shares of
authorized but unissued or treasury shares of eGlobe Common Stock as shall be
required for issuance or delivery upon exercise of this Warrant. eGlobe further
agrees (i) that it will not, by amendment to its certificate of incorporation or
bylaws or through any other action, avoid or seek to avoid the observance or
performance of any of the covenants or conditions to be observed or performed
hereunder by eGlobe, and (ii) promptly to take all action as may from time to
time be required in order to permit the Holder to exercise this Warrant and
eGlobe to duly and effectively to issue shares of eGlobe Common Stock hereunder.
6. Effect of Changes in Capitalization.
A. Changes in Stock. If the outstanding shares of eGlobe
Common Stock are increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of eGlobe by reason of
any recapitalization, reclassification, stock split-up, reverse stock split,
combination of shares, exchange of shares, stock dividend or other distribution
payable in capital stock, or other increase or decrease in such shares effected
without receipt of consideration by eGlobe occurring after the date hereof, a
proportionate and appropriate adjustment shall be made by eGlobe in the number
and kind of shares subject to this Warrant, so that the proportionate interest
of the Holder immediately following such event shall, to the extent practicable,
be the same as immediately prior to such event. Any such adjustment in this
Warrant shall not change the total Exercise Price with respect to shares subject
to the unexercised portion of this Warrant but shall include a corresponding
proportionate adjustment in the Exercise Price per share.
B. Merger, Consolidation or Sale. Subject to Subsection C
of this Section 6, in the event of any Sale Transaction (as defined below), this
Warrant shall pertain to and apply to the cash, securities or other
consideration to which a holder of the number of shares of eGlobe Common Stock
subject to this Warrant would have been entitled immediately following such Sale
Transaction.
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For purposes of this Warrant, a "Sale Transaction" shall
mean (i) the dissolution or liquidation of eGlobe, (ii) a merger, consolidation
or reorganization of eGlobe with one or more other corporations in which
stockholders of eGlobe receive cash or securities of another corporation for
their stock in eGlobe, (iii) a sale of substantially all of the assets of eGlobe
to another corporation, or (iv) another transaction (including, without
limitation, a merger or reorganization in which eGlobe is the surviving
corporation) approved by the Board of Directors of eGlobe which results in any
person or entity owning a majority of the combined voting power of all classes
of stock of eGlobe.
C. Adjustments. Adjustments specified in this Section 6
shall be made by the Board of Directors of eGlobe, whose determination in that
respect shall be final, binding and conclusive. No fractional shares of eGlobe
Common Stock or units of other securities shall be issued pursuant to any such
adjustment, and any fractions resulting from any such adjustment shall be
eliminated in each case, with cash being paid (at fair market value as
reasonably determined by the Board of Directors of eGlobe) in lieu of such
fraction.
7. General Restrictions. eGlobe shall not be required to issue
any shares of eGlobe Common Stock under this Warrant Agreement if the issuance
of such shares would constitute a violation by eGlobe of any provision of any
law or regulation of any governmental authority, including without limitation,
the registration or qualification requirement of applicable federal and state
securities laws or regulations. If at any time eGlobe shall determine, based
upon a written opinion of securities counsel, that the registration or
qualification of any shares subject to this Warrant under any applicable state
or federal law is necessary as a condition of, or in connection with, the
issuance of shares, this Warrant may not be exercised in whole or in part unless
such registration or qualification shall have been effected or obtained free of
any conditions not reasonably acceptable to eGlobe, and any delay caused thereby
shall in no way affect the date of termination of this Warrant. Specifically in
connection with the Securities Act of 1933 (as now in effect or as hereafter
amended) (the "Securities Act"), unless a registration statement under the
Securities Act is in effect with respect to the shares of eGlobe Common Stock
covered by this Warrant, eGlobe shall not be required to issue such shares
unless the Board of Directors of eGlobe has received evidence reasonably
satisfactory to it that the holder of this Warrant may acquire such shares
pursuant to an exemption from registration under the Securities Act. As to any
jurisdiction that expressly imposes the requirement that this Warrant shall not
be exercisable unless and until the shares of eGlobe Common Stock covered by
this Warrant are registered or are subject to an available exemption from
registration, the exercise of this Warrant (under circumstances in which the
laws of such jurisdiction apply) shall be deemed conditioned upon the
effectiveness of such registration or the availability of such an exemption.
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8. Registration of Shares for Resale. Promptly after the date
this Warrant is issued to the Holder, eGlobe shall take all reasonable steps
necessary to file a registration statement on Form S-3 under the Securities Act
(to the extent eGlobe is then eligible to register its securities on such form)
to register for resale the shares of eGlobe Common Stock issued upon exercise of
this Warrant. eGlobe shall take all reasonable steps necessary to cause such
registration statement to become effective as promptly as practicable, and shall
maintain the effectiveness of such registration statement until the shares
registered thereunder have been transferred pursuant to such registration
statement or such shares become transferable under Rule 144(k) under the
Securities Act. eGlobe shall retain the right to cause the Holder, upon written
notice from eGlobe to Holder, to suspend sales under such registration statement
for reasonable periods when necessary to permit eGlobe to correct or update the
disclosure contained or incorporated into such registration statement or when
eGlobe reasonably believes that such disclosure may have become false or
misleading due to the occurrence of a significant event or the pendency of a
significant corporate transaction.
9. Applicable Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of Delaware except to the
extent federal law may be applicable.
10. Reports. eGlobe shall deliver to the Holder, promptly upon
the mailing thereof to the stockholders of eGlobe generally, copies of all
financial statements, reports and proxy statements so mailed, and shall deliver
to the Holder such other information that eGlobe may produce in written form in
the ordinary course of its business which is available to stockholders of eGlobe
generally and which the Holder reasonably requests.
IN WITNESS WHEREOF, eGlobe has caused this Warrant to be duly
executed on the day and year set forth below.
DATED: _____________ __, ____
[SEAL] EXECUTIVE TELECARD, LTD.
D/B/A EGLOBE, INC.
ATTEST:
By:
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Its:
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WARRANT
NEITHER THE WARRANTS REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). NONE OF SUCH SECURITIES MAY BE OFFERED OR SOLD EXCEPT
PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT, OR (II) AN AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE ACT RELATING TO THE DISPOSITION OF
SECURITIES AND UPON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO COUNSEL FOR THE COMPANY, THAT SUCH EXEMPTION FROM REGISTRATION
UNDER THE ACT IS AVAILABLE.
DATE:
NO.:
WARRANT TO PURCHASE
SHARES OF
COMMON STOCK
OF
EXECUTIVE TELECARD, LTD.
Executive Telecard, Ltd. (also d/b/a eGlobe), a Delaware corporation
(the "Company"), hereby issues to __________ (the "Holder") this warrant to
purchase from the Company, for a price per share equal to $_____, __________
shares of common stock, $.001 par value per share of the Company (the "Common
Stock").
1. Exercise. The rights represented by this warrant may be exercised,
in whole or in part at any time beginning on the date that is _____ days after
the date hereof until 5:00 PM (New York, New York time) on the _____ anniversary
of the date hereof (the "Exercise Period"), by (a) the surrender of this
warrant, along with the purchase form attached as Exhibit A (the "Purchase
Form"), properly executed, at the address of the Company set forth in section
6.2 (or such other address as the Company may designate by notice in writing to
the Holder at its address set forth in section 6.2) and (b) the payment to the
Company of the exercise price by check, payable to the order of the Company, for
the number of shares of Common Stock specified in the Purchase Form, together
with any applicable stock transfer taxes. A certificate representing the shares
of Common Stock so purchased and, in the event of an exercise of fewer than all
the rights represented by this warrant, a new warrant in the form of this
warrant issued in the name of the Holder or its designee(s) and representing a
new warrant to purchase a number of shares of Common Stock equal to the number
of shares of Common Stock as to which this warrant was theretofore exercisable
less the number of shares of Common Stock as to which this warrant shall
theretofore have been exercised, shall be delivered to
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the Holder or such designee(s) as promptly as practicable, but in no event later
than three business days, after this warrant shall have been so exercised.
2. Antidilution. In case the Company shall (i) pay a dividend in shares
of Common Stock or make a distribution in shares of Common Stock, (ii) subdivide
its outstanding shares of Common Stock (including, without limitation, by way of
stock splits and the like), (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company
(including any such reclassification in connection with a consolidation or
merger in which the Company is the surviving corporation), the number of shares
of Common Stock purchasable upon exercise of this warrant immediately prior
thereto shall be adjusted so that the Holder shall be entitled to receive the
number of shares of Common Stock or the kind and number of other securities of
the Company which it would have owned or have been entitled to receive after the
happening of any of the events described above had this warrant been exercised
immediately prior to the happening of such event or any record date with respect
thereto, and the exercise price per share shall be adjusted appropriately. An
adjustment made pursuant to this section 2 shall become effective immediately
after the effective date of each such event retroactive to the record date, if
any, for such event, without amendment or modification required to this
document.
3. Transfer. Subject to applicable law (including the requirements set
forth in the legend at the beginning of this warrant), this warrant may be
transferred at any time, in whole or in part, to any person or persons. Any
transfer shall be effected by the surrender of this warrant, along with the form
of assignment attached as Exhibit B, properly executed, at the address of the
Company set forth in section 6.2 (or such other address as the Company may
designate by notice in writing to the Holder at its address set forth in section
6.2). Thereupon, the Company shall issue in the name or names specified by the
Holder a new warrant or warrants of like tenor and representing a warrant or
warrants to purchase in the aggregate a number of shares equal to the number of
shares to which this warrant was theretofore exercisable less the number of
shares as to which this warrant shall theretofore have been exercised.
4. Payment of Taxes. The Company shall cause all shares of Common Stock
issued upon the exercise of this warrant to be validly issued, fully paid and
nonassessable and not subject to preemptive rights. The Company shall pay all
expenses in connection with, and all taxes and other governmental charges that
may be imposed with respect to. the issuance or delivery of the shares of Common
Stock upon exercise of this warrant, unless such tax or charge is imposed by law
upon the Holder.
5. Reservation of Shares. From and after the date of this warrant, the
Company shall at all times reserve and keep available for issuance upon the
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exercise of this warrant a number of its authorized but unissued shares of
Common Stock sufficient to permit the exercise in full of this warrant.
6. Miscellaneous.
6.1 Securities Act Restrictions. The Holder acknowledges that this
warrant may not be sold, transferred or otherwise disposed of without
registration under the Securities Act of 1933, as amended (the "Act") or an
applicable exemption from the registration requirements of the Act and,
accordingly, this warrant and all certificates representing the Common Stock
issuable upon the exercise of this warrant shall bear a legend in the form set
forth on the top of page one of this warrant.
6.2 Notices. Any notices and other communications under this warrant
shall be in writing and may be given by any of the following methods: (a)
personal delivery; (b) facsimile transmission; (c) registered or certified mail.
postage prepaid, return receipt requested; or (d) overnight delivery service.
Notices shall be sent to the appropriate party at its address or facsimile
number given below (or at such other address or facsimile number for such party
as shall be specified by notice given hereunder): (a) if to the Company, to it
at: 1720 S. Bellaire Street, 10th Floor, Denver, CO 80222, Fax No. (303)
691-1861, Attention: Chief Executive Officer, and if to the Holder, to it at
his/her address appearing on the stock records of the Company at the time that a
notice shall be mailed, or at such other address as the party to be notified
shall from time to time have furnished to the Company. All such notices and
communications shall be deemed received upon (a) actual receipt thereof by the
addressee, (b) actual delivery thereof to the appropriate address or (c) in the
case of a facsimile transmission, upon transmission thereof by the sender and
issuance by the transmitting machine of a confirmation slip confirming that the
number of pages constituting the notice have been transmitted without error. In
the case of notices sent by facsimile transmission, the sender shall
contemporaneously mail a copy of the notice to the addressee at the address
provided for above. However, such mailing shall in no way alter the time at
which the facsimile notice is deemed received.
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6.3 Amendment. This warrant may be modified or amended or the
provisions of this warrant may be waived only with the written consent of the
Company and the Holder.
6.4 Governing Law. This warrant shall be governed by the law of the
State of Delaware, without regard to the provisions thereof relating to
conflicts of laws.
EXECUTIVE TELECARD, LTD.
By:
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Name:
Title:
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EXHIBIT A
PURCHASE FORM
[To be executed only upon exercise of warrant]
The undersigned registered owner of this warrant irrevocably exercises
this warrant for the purchase of shares of common stock, $.001 par value per
share (the "Common Stock") of Executive Telecard, Ltd., and herewith makes
payment therefor, all at the price and on the terms and conditions specified in
this warrant and requests that certificates for the shares of Common Stock
hereby purchased be issued in the name of and delivered to the undersigned and,
if such shares of Common Stock shall not include all of the shares of Common
Stock issuable as provided in this warrant, that a new warrant of like tenor and
date for the balance of the shares of Common Stock issuable hereunder be
delivered to the undersigned.
Dated:
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(Name of Registered Owner)
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(Signature of Registered Owner)
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(Street Address)
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(City) (State) (Zip Code)
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED. the undersigned registered owner of this warrant
hereby sells, assigns and transfers to the assignee named below all of the
rights of the undersigned under this warrant with respect to the number of
shares of common stock, $.001 par value per share of Executive Telecard, Ltd.
set forth below:
Name and Address of Assignee No. of Shares of Common Stock
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and does hereby irrevocably constitute and appoint ____________________
attorney-in-fact to register such transfer on the books of Executive Telecard,
Ltd. maintained for the purpose, with full power of substitution in the
premises.
Dated: Print Name:
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Signature:
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Witness:
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