EXHIBIT 3.4
VALCOM, INC.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
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JUNE 18, 2002 1,250,000
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(No. of Warrants)
FOR VALUE RECEIVED, ValCom, Inc. ("Company"), hereby certifies that
High Capital Funding, LLC, or a permitted assign thereof, is entitled to
purchase from the Company, at any time or from time to time, commencing the date
hereof and prior to 5:00 P.M., New York City time, on June 18, 2007, 1,250,000
fully paid and nonassessable shares of the common stock, of the Company for an
aggregate purchase price of one millon dollars ($1,000,000.00) (computed on the
basis of $0.80/share). (Hereinafter, (i) said common stock, together with any
other equity securities which may be issued by the Company with respect thereto
or in substitution therefor, is referred to as the "Common Stock," (ii) the
shares of the Common Stock purchasable hereunder or under any other Warrant (as
hereinafter defined) are referred to as the "VACM Warrants Shares," the
aggregate purchase price payable hereunder for the VACM Warrants Shares is
referred to as the "Aggregate Warrant Price," (iv) one Warrants shall be
surrendered for each share of Common Stock purchased hereunder, (v) the price
payable hereunder for each of the VACM Warrants Shares is referred to as the
"Per Share Warrant Price," (vi) this Warrant, all identical warrants (if any)
issued on the date hereof and all warrants hereafter issued in exchange or
substitution for this Warrant or such other warrants are referred to as the
"Warrants" and (vii) the holder of this Warrant is referred to as the "Holder"
and the holder of this Warrant and all other Warrants are referred to as the
"Holders"). The Aggregate Warrant Price is not subject to adjustment. The Per
Share Warrant Price is subject to adjustment as hereinafter provided; in the
event of any such adjustment, the number of VACM Warrants Shares shall be
adjusted by dividing the Aggregate Warrant Price by the Per Share Warrant Price
in effect immediately after such adjustment.
1. EXERCISE OF WARRANT.
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a) EXERCISE FOR CASH
This Warrant may be exercised, in whole at any time or in part from
time to time, commencing on the date hereof and prior to 5:00 P.M., New York
City time, on June 18, 2007, by the Holder by the surrender of this Warrant
(with the subscription form at the end hereof duly executed) at the address set
forth in Section 9 hereof, together with proper payment of the Aggregate Warrant
Price, or the proportionate part thereof if this Warrant is exercised in part.
Payment for VACM Warrants Shares shall be made by wire, or check payable to the
order of the Company. If this Warrant is exercised in part, this Warrant must be
exercised for a number of whole shares of the Common Stock, and the Holder is
entitled to receive a new Warrant covering the VACM Warrants Shares which have
not been exercised and setting forth the proportionate part of the Aggregate
Warrant Price applicable to such VACM Warrants Shares. Upon such surrender of
this Warrant the Company will (a) issue a certificate or certificates in the
name of the Holder for the largest number of whole shares of the Common Stock to
which the Holder shall be entitled and, if this Warrant is exercised in whole,
in lieu of any fractional share of the Common Stock to which the Holder shall be
entitled, pay to the Holder cash in an amount equal to the fair value of such
fractional share (determined in such reasonable manner as the Board of Directors
of the Company shall determine), and (b) deliver the other securities and
properties receivable upon the exercise of this Warrant, or the proportionate
part thereof if this Warrant is exercised in part, pursuant to the provisions of
this Warrant.
b) CASHLESS EXERCISE
If at any time the VACM Warrants Shares have not been registered for
resale under the Securities Act of 1933 with a current prospectus available, in
lieu of exercising this Warrant in the manner set forth in Subsection l(a)
above, the Warrant may be exercised by surrender of the Warrant without payment
of any other consideration, commission or remuneration, by execution of the
cashless exercise subscription form (at the end hereof, duly executed). The
number of shares to be issued in exchange for the Warrant will be computed by
subtracting the Warrant Exercise Price from the closing bid price of the common
stock on the date of receipt of the cashless exercise subscription form,
multiplying that amount by the number of shares being exercised pursuant to the
Warrant, and dividing by the closing bid price as of the same date.
c) OWNERSHIP LIMITATION
No Holders of Warrants shall be permitted to exercise any Warrants to
the extent that such exercise would cause any Holder to be the beneficial owner
of more than 5% of the then outstanding Common Stock, at that given time. This
limitation shall not be deemed to prevent any Holder from acquiring an aggregate
of more than 5% of the Common Stock, so long as such Holder does not
beneficially own more than 5% of the Common Stock, at any given time.
2. RESERVATION OF VACM WARRANTS SHARES.
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The Company agrees that, prior to the expiration of this Warrant, the
Company will at all times have authorized and in reserve, and will keep
available, solely for issuance or delivery upon the exercise of this Warrant,
the shares of the Common Stock and other securities and properties as from time
to time shall be receivable upon the exercise of this Warrant, free and clear of
all restrictions on sale or transfer (except for applicable state or federal
securities law restrictions) and free and clear of all pre-emptive rights.
3. PROTECTION AGAINST DILUTION.
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a) If, at any time or from time to time after the date of this Warrant,
the Company shall issue or distribute (for no consideration) to the holders of
shares of Common Stock evidences of its indebtedness, any other securities of
the Company or any cash, property or other assets (excluding a subdivision,
combination or reclassification, or dividend or distribution payable in shares
of Common Stock, referred to in Subsection 3(b), and also excluding cash
dividends or cash distributions paid out of net profits legally available
therefor if the full amount thereof, together with the value of other dividends
and distributions made substantially concurrently therewith or pursuant to a
plan which includes payment thereof, is equivalent to not more than 5% of the
Company's net worth) (any such nonexcluded event being herein called a "Special
Dividend"), the Per Share Warrant Price shall be adjusted by multiplying the Per
Share Warrant Price then in effect by a fraction, the numerator of which shall
be the then current market price of the Common Stock (defined as the average for
the thirty consecutive business days immediately prior to the record date of the
daily 4:00 PM closing bid price of the Common Stock as reported by the NASDAQ
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system) less the fair market value (as determined by the Company's Board of
Directors) of the evidences of indebtedness, securities or property, or other
assets issued or distributed in such Special Dividend applicable to one share of
Common Stock and the denominator of which shall be such then current market
price per share of Common Stock. An adjustment made pursuant to this Subsection
3(a) shall become effective immediately after the record date of any such
Special Dividend.
b) In case the Company shall hereafter (i) pay a dividend or make a
distribution on its capital stock in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
or (iv) issue by reclassification of its Common Stock any shares of capital
stock of the Company, the Per Share Warrant Price shall be adjusted so that the
Holder of any Warrant upon the exercise hereof shall be entitled to receive the
number of shares of Common Stock or other capital stock of the Company which he
would have owned had he exercised the warrants immediately prior thereto. An
adjustment made pursuant to this Subsection 3(b) shall become effective
immediately after the record date in the case of a dividend or distribution, and
shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an adjustment
made pursuant to this Subsection 3(b), the Holder of any Warrant thereafter
surrendered for exercise shall become entitled to receive shares of two or more
classes of capital stock or shares of Common Stock and other capital stock of
the Company, the Board of Directors (whose determination shall be described in a
written notice to the Holder of any Warrant promptly after such adjustment)
shall determine the allocation of the adjusted Per Share Warrant Price between
or among shares of such classes or capital stock or shares of Common Stock and
other capital stock.
c) In case of any capital reorganization or reclassification, or any
consolidation or merger to which the Company is a party other than a merger or
consolidation in which the Company is the continuing corporation, or in case of
any sale or conveyance to another entity of the property of the Company as an
entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), the Holder
of this Warrant shall have the right thereafter to receive upon exercise of such
Warrant into the kind and amount of securities, cash or other property which he
would have owned or have been entitled to receive immediately after such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance had this Warrant been exercised immediately prior to the
effective date of such reorganization, reclassification, consolidation, merger,
statutory exchange, sale or conveyance and in any such case, if necessary,
appropriate adjustment shall be made in the application of the provisions set
forth in this Section 3 with respect to the rights and interests thereafter of
the Holder of this Warrant to the end that the provisions set forth in this
Section 3 shall thereafter correspondingly be made applicable, as nearly as may
reasonably be, in relation to any shares of stock or other securities or be, in
relation to any shares of stock or other securities or property thereafter
deliverable on the conversion of this Warrant. The above provisions of this
Subsection 3(c) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, statutory exchanges, sales or
conveyances. The issuer of any shares of stock or other securities or property
thereafter deliverable on the conversion of this Warrant shall be responsible
for all of the agreements and obligations of the Company hereunder. Notice of
any such reorganization, reclassification, consolidation, merger, statutory
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exchange, sale or conveyance and of said provisions so proposed to be made,
shall be mailed to the Holders of the Warrants not less than 20 days prior to
such event. A sale of all or substantially all of the assets of the Company for
a consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
d) No adjustment in the Per Share Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least $0.01
per share of Common Stock; PROVIDED, HOWEVER, that any adjustments which by
reason of this Subsection 3(f) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; PROVIDED FURTHER,
however, that adjustments shall be required and made in accordance with the
provisions of this Section 3 (other than this Subsection 3(f)) not later than
such time as may be required in order to preserve the tax-free nature of a
distribution to the Holder of this Warrant or Common Stock issuable upon
exercise hereof. All calculations under this Section 3 shall be made to the
nearest cent. Anything in this Section 3 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Per Share Warrant
Price, in addition to those required by this Section 3, as it in its discretion
shall deem to be advisable in order that any stock dividend, subdivision of
shares or distribution of rights to purchase stock or securities convertible or
exchangeable for stock hereafter made by the Company to its shareholders shall
not be taxable.
e) Whenever the Per Share Warrant Price is adjusted as provided in this
Section 3 and upon any modification of the rights of a Holder of Warrants in
accordance with this Section 3, the Company shall promptly obtain, at its
expense, a certificate of a firm of independent public accountants of recognized
standing selected by the Board of Directors (who may be the regular auditors of
the Company) setting forth the Per Share Warrant Price and the number of VACM
Warrants Shares after such adjustment or the effect of such modification, a
brief statement of the facts requiring such adjustment or modification and the
manner of computing the same and cause copies of such certificate to be mailed
to the Holders of the Warrants.
f) If the Board of Directors of the Company shall declare any dividend
or other distribution with respect to the Common Stock, other than a cash
distribution out of earned surplus, the Company shall mail notice thereof to the
Holders of the Warrants not less than 20 days prior to the record date fixed for
determining shareholders entitled to participate in such dividend or other
distribution.
4. FULLY PAID STOCK, TAXES.
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The Company agrees that the shares of the Common Stock represented by
each and every certificate for VACM Warrants Shares delivered on the exercise of
this Warrant shall, at the time of such delivery, be validly issued and
outstanding, fully paid and nonassessable, and not subject to pre-emptive
rights, and the Company will take all such actions as may be necessary to assure
that the par value or stated value, if any, per share of the Common Stock is at
all times equal to or less than the then Per Share Warrant Price. The Company
further covenants and agrees that it will pay, when due and payable, any and all
Federal and state stamp, original issue or similar taxes which may be payable in
respect of the issue of any Warrant Share or certificate therefor.
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5. REGISTRATION RIGHTS
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The Company shall maintain the registration this Warrant and the VACM
Warrants Shares in accordance with the Section 8 of the Financing Terms
Agreement dated March 29, 2002, a copy of which is attached has been delivered
to Holder.
6. TRANSFERABILITY.
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The Company may treat the registered Holder of this Warrant as he or it
appears on the Company's books at any time as the Holder for all purposes. The
Company shall permit any Holder of a Warrant or his duly authorized attorney,
upon written request during ordinary business hours, to inspect and copy or make
extracts from its books showing the registered holders of Warrants. All warrants
issued upon the transfer or assignment of this Warrant will be dated the same
date as this Warrant, and all rights of the Holder thereof shall be identical to
those of the Holder.
7. LOSS, ETC., OF WARRANT.
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Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, the Company shall execute and
deliver to the Holder a new Warrant of like date, tenor and denomination.
8. WARRANT HOLDER NOT SHAREHOLDERS.
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Except as otherwise provided herein, this Warrant does not confer upon
the Holder any right to vote or to consent to or receive notice as a shareholder
of the Company, as such, in respect of any matters whatsoever, or any other
rights or liabilities as a shareholder, prior to the exercise hereof; provide,
however, Company shall give not less than twenty days written notice to the
Holder of any action which would required adjustment of any terms of the Warrant
in accordance with Section 3 above.
9. COMMUNICATION.
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Any notice or other communication under this Warrant shall be effective
unless and shall be deemed to have been given if, the same is in writing and is
mailed by first-class mail, postage prepaid, or sent vial facsimile, electronic
transmission, overnight courier or hand delivery addressed to:
If to the Company:
ValCom, Inc.
26030 Avenue Hall
#5
Valencia, CA 91355
Attn: Vince Vellardita, President & CEO
Tel: (661) 257-8000
Fax: (661) 257-1780
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If to the Holder:
High Capital Funding, LLC
333 Sandy Springs Circle
Suite 230
Atlanta, GA 30328
Fax: (404) 257-9150
Tel: (404) 257-9125
with copy to:
David A. Rapaport, Esq.
333 Sandy Springs Circle, Suite 230
Atlanta, GA 30328
Fax: (404) 257-9125
Tel: (404) 257-9150
Email: drapaport@hcfmgmt.com
10. HEADINGS.
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The headings of this Warrant have been inserted as a matter of
convenience and shall not affect the construction hereof.
11. APPLICABLE LAW.
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This Warrant shall be governed by and construed in accordance with the
law of the state of Nevada without giving effect to the principles of conflicts
of law thereof.
IN WITNESS WHEREOF, ValCom, Inc. has caused this Warrant to be signed
by its President and Chief Executive Officer as of the date set forth above.
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Vince Vellardita, President & CEO
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SUBSCRIPTION
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The undersigned, _____________________, pursuant to the provisions of the
foregoing Warrant, hereby agrees to subscribe for and purchase shares of the
Common Stock of ValCom, Inc. covered by said Warrant, and makes payment therefor
in full at the Per Share Warrant provided by said Warrant.
Dated: Signature:
Address:
ASSIGNMENT
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FOR VALUE RECEIVED___________________ hereby sells, assigns and transfers unto
____________ the foregoing Warrant and all rights evidenced thereby, and does
irrevocably constitute and appoint _______________________, attorney, to
transfer said Warrant on the books of ________________
Dated: Signature:
Address:
PARTIAL ASSIGNMENT
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FOR VALUE RECEIVED ____________________hereby assigns and transfers
unto ____________________ the right to purchase ______________ shares of the
Common Stock of ________________ by the foregoing Warrant, and a proportionate
part of said Warrant and the rights evidenced hereby, and does irrevocably
constitute and appoint ____________________, attorney, to transfer that part of
said Warrant on the books of ValCom, Inc..
Dated: Signature:
Address:
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CASHLESS EXERCISE SUBSCRIPTION
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The undersigned _______________________ pursuant to the provisions of
the foregoing Warrant, hereby agrees to subscribe to that number of shares of
stock of ValCom, Inc. as are issuable in accordance with the formula set forth
in Section l(b) of the Warrant, and makes payment therefore in full by surrender
and delivery of this Warrant.
Dated: Signature:
Address:
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