EXHIBIT 10.60
WIRE ONE TECHNOLOGIES, INC.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.: JPM - 002 Number of Shares: 100,000
Date of Issuance: March 6, 2003
Wire One Technologies, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, JPMORGAN CHASE BANK, as
administrative agent for the lenders under that certain Credit Agreement, dated
as of May 31, 2002, as amended to date, among the Company, said lenders and said
agent, the registered holder hereof or its permitted assigns, is entitled,
subject to the terms set forth below, to purchase from the Company upon
surrender of this Warrant, at any time or times on or after the date hereof, but
not after 11:59 P.M. Eastern Time on the Expiration Date (as defined herein) one
hundred thousand (100,000) fully paid and nonassessable shares of Common Stock
(as defined herein) of the Company (the shares so purchased, the "Warrant
Shares") at the Warrant Exercise Price provided in Section l(a) below.
Section 1.
(a) Definitions. The following words and terms as used in this Warrant
shall have the following meanings:
(i) "Business Day" means any day other than Saturday, Sunday
or other day on which commercial banks in the City of New York are
authorized or required by law to remain closed.
(ii) "Closing Sale Price" means, for any security as of any
date, the last closing trade price for such security at 4:00 p.m.
Eastern Standard Time on the Nasdaq National Market, or, if the Nasdaq
National Market is not the principal securities exchange or trading
market for such security, the last closing trade price of such security
at 4:00 p.m. Eastern Standard Time on the principal securities exchange
or trading market where such security is listed or traded, or if the
foregoing do not apply, the last closing trade price of such security
in the over-the-counter market on the electronic bulletin board for
such security at 4:00 p.m. Eastern Standard Time, or, if no last
closing trade price is reported for such security, the average of the
closing bid and ask prices of such security, or, if no closing ask or
bid prices are reported for such security, the average of the bid and
ask prices of any market makers for such security as reported in the
"pink sheets" by the National Quotation Bureau, Inc. If the Closing
Sale Price cannot be calculated for such security on such date on any
of the foregoing bases, the Closing Sale Price of such security on such
date shall be the fair market value as determined in good faith by the
Board of Directors of the Company. (All such determinations to be
appropriately adjusted for any stock dividend, stock split or other
similar transaction during such period).
(iii) "Common Stock" means (i) the Company's common stock, par
value $0.0001 per share, and (ii) any capital stock into which such
Common Stock shall have been changed or any capital stock resulting
from a reclassification of such Common Stock.
(iv) "Expiration Date" means the date five (5) years from the
date of this Warrant or, if such date falls on a Saturday, Sunday or
other day on which banks are required or authorized to be closed in the
City of New York or the State of New York or on which trading does not
take place on the principal exchange or automated quotation system on
which the Common Stock is traded (a "Holiday"), the next date that is
not a Holiday.
(v) "Person" means an individual, a limited liability company,
a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or
agency thereof.
(vi) "Securities Act" means the Securities Act of 1933, as
amended.
(vii) "Warrant" means this Warrant and all Warrants issued in
exchange, transfer or replacement thereof.
(viii) "Warrant Exercise Price" shall be equal to, with
respect to any Warrant Share, $2.06, subject to adjustment as
hereinafter provided.
(ix) "Warrant Period" means the period beginning on the date
hereof and ending on and including the Expiration Date.
(b) Other Definitional Provisions.
(i) Except as otherwise specified herein, all references
herein (A) to the Company shall be deemed to include the Company's
successors and (B) to any applicable law defined or referred to herein,
shall be deemed references to such applicable law as the same may have
been or may be amended or supplemented from time to time.
(ii) When used in this Warrant, the words "herein," "hereof"
and "hereunder," and words of similar import, shall refer to this
Warrant as a whole and not to any provision of this Warrant, and the
words "Section," "Schedule," and "Exhibit" shall refer to Sections of,
and Schedules and Exhibits to, this Warrant unless otherwise specified.
(iii) Whenever the context so requires, the neuter gender
includes the masculine or feminine, and the singular number includes
the plural, and vice versa.
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Section 2. Exercise of Warrant.
(a) Subject to the terms and conditions hereof, this Warrant may be
exercised by the holder hereof then registered on the books of the Company, in
whole or in part, at any time on any Business Day on or after the opening of
business on the date hereof and prior to 11:59 P.M. Eastern Time on the
Expiration Date by (i) delivery of a written notice, in the form of the exercise
notice attached as Exhibit A hereto (the "Exercise Notice"), of such holder's
election to exercise this Warrant, which notice shall specify the number of
Warrant Shares to be purchased, (ii) payment to the Company of an amount equal
to the applicable Warrant Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (plus any applicable issue or
transfer taxes) (the "Aggregate Exercise Price") in cash or wire transfer of
immediately available funds, unless the holder elects to make a "Cashless
Exercise" under certain conditions in accordance with section 2(d) of this
Agreement, and (iii) the surrender to a common carrier for overnight delivery to
the Company as soon as practicable following such date, this Warrant (or an
indemnification undertaking with respect to this Warrant in the case of its
loss, theft or destruction); provided, that if such Warrant Shares are to be
issued in any name other than that of the registered holder of this Warrant,
such issuance shall be deemed a transfer and the provisions of Section 7 shall
be applicable. In the event of any exercise of the rights represented by this
Warrant in compliance with this Section 2(a), the Company shall on the third
Business Day following the date of receipt of the Exercise Notice, the Aggregate
Exercise Price and this Warrant (or an indemnification undertaking with respect
to this Warrant in the case of its loss, theft or destruction) (the "Exercise
Delivery Documents"), credit such aggregate number of shares of Common Stock to
which the holder shall be entitled to the holder's or its designee's balance
account with The Depository Trust Company; provided, however, if the holder who
submitted the Exercise Notice requested physical delivery of any or all of the
Warrant Shares, then the Company shall, on or before the third Business Day
following receipt of the Exercise Delivery Documents, issue and surrender to a
common carrier for overnight delivery to the address specified in the Exercise
Notice, a certificate, registered in the name of the holder, for the number of
shares of Common Stock to which the holder shall be entitled pursuant to such
request. Upon delivery of the Exercise Notice and Aggregate Exercise Price
referred to in clause (ii) above or notification to the Company of a Cashless
Exercise referred to in Section 2(d), the holder of this Warrant shall be deemed
for all corporate purposes to have become the holder of record of the Warrant
Shares, with respect to which this Warrant has been exercised, irrespective of
the date of delivery of this Warrant as required by clause (iii) above or the
certificates evidencing such Warrant Shares.
(b) Unless the rights represented by this Warrant shall have expired or
shall have been fully exercised, the Company shall, as soon as practicable and
in no event later than five (5) Business Days after any exercise and at its own
expense, issue a new Warrant identical in all respects to this Warrant exercised
except it shall represent rights to purchase the number of Warrant Shares
purchasable immediately prior to such exercise under this Warrant exercised,
less the number of Warrant Shares with respect to which such Warrant is
exercised.
(c) No fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but rather the number of shares of Common Stock issued
upon exercise of this Warrant shall be rounded up or down to the nearest whole
number.
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(d) Notwithstanding anything contained herein to the contrary, the
holder of this Warrant may elect to exercise this Warrant in whole or in part
and, in lieu of making the cash payment otherwise contemplated to be made to the
Company upon such exercise in payment of the Aggregate Exercise Price, receive
upon such exercise the "Net Number" of shares of Common Stock (a "Cashless
Exercise") which shall be determined according to the following formula:
Net Number = (A x B) - (A x C)
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B
For purposes of the foregoing formula:
A=the total number of Warrant Shares with respect to which
this Warrant is then being exercised.
B=the Closing Sale Price of the Common Stock on the date
immediately preceding the date of the exercise notice.
C=the Warrant Exercise Price then in effect for the applicable
Warrant Shares at the time of such exercise.
Section 3. Covenants as to Common Stock. The Company hereby covenants
and agrees as follows:
(a) This Warrant is, and any Warrants issued in substitution for or
replacement of this Warrant will upon issuance be, duly authorized and validly
issued.
(b) All Warrant Shares which may be issued upon the exercise of the
rights represented by this Warrant have been duly and validly authorized and
when issued and delivered upon exercise of this Warrant will be validly issued,
fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof.
(c) During the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized and
reserved the number of shares of Common Stock needed to provide for the exercise
of the rights then represented by this Warrant.
(d) The shares of Common Stock issuable upon exercise of this Warrant
shall be listed upon each national securities exchange or automated quotation
system, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance upon exercise of this Warrant) and shall maintain,
so long as any other shares of Common Stock shall be so listed, such listing of
all shares of Common Stock from time to time issuable upon the exercise of this
Warrant; and the Company shall so list on each national securities exchange or
automated quotation system, as the case may be, and shall maintain such listing
of, any other shares of capital stock of the Company issuable upon the exercise
of this Warrant if and so long as any shares of the same class shall be listed
on such national securities exchange or automated quotation system.
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(e) The Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issuance or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed by it hereunder, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all such action as may reasonably be requested by the holder of this
Warrant in order to protect the exercise privilege of the holder of this Warrant
consistent with the tenor and purpose of this Warrant.
(f) This Warrant will be binding upon any entity succeeding to the
Company by merger, consolidation or acquisition of all or substantially all of
the Company's assets.
Section 4. Taxes. The Company shall pay any and all taxes which may be
payable with respect to the issuance and delivery of Warrant Shares upon
exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax that may be payable in respect of any transfer involved
in the issue or delivery of Common Stock or other securities or property in a
name other than that of the registered holders of this Warrant to be converted
and such holder shall pay such amount, if any, to cover any applicable transfer
or similar tax.
Section 5. Warrant Holder Not Deemed a Stockholder. Except as otherwise
specifically provided herein, no holder, as such, of this Warrant shall be
entitled by virtue of this Warrant to vote or receive dividends or be deemed the
holder of shares of the Company for any purpose, nor shall anything contained in
this Warrant be construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue of stock,
reclassification of stock, consolidation, merger, conveyance or otherwise),
receive notice of meetings, receive dividends or subscription rights, or
otherwise, prior to the issuance to the holder of this Warrant of the Warrant
Shares which he or she is then entitled to receive upon the due exercise of this
Warrant. In addition, nothing contained in this Warrant shall be construed as
imposing any liabilities on such holder to purchase any securities (upon
exercise of this Warrant or otherwise) or as a stockholder of the Company,
whether such liabilities are asserted by the Company or by creditors of the
Company.
Section 6. Securities Laws.
(a) Shares may not be issued to the Holder upon exercise of this
Warrant if, at the time of exercise, a registration statement with respect to
such shares is not effective under the Securities Act or if such shares are not
qualified or exempt from qualification in the state wherein the holder of this
Warrant resides.
(b) If at any time prior to the Expiration Date the Company proposes to
file a registration statement under the Securities Act with respect to an
underwritten offering of Common Stock (except on Form S-4 or Form S-8 or any
successor forms thereto), for its own account, then the Company shall give
written notice of such proposed filing to the holder of this Warrant or of the
Warrant Shares at least 15 days in advance of the anticipated filing date (the
"Piggyback Notice"). The Piggyback Notice shall offer such holders the
opportunity to register such amount of Warrant Shares as each such holder may
request (a "Piggyback Registration"); subject in all events to the agreement of
the underwriter or underwriters of the offering contemplated by such
registration statement that such Warrant Shares can be included in such
registration statement without adversely affecting such offering. Any reduction
in the number of securities to be so offered shall be (i) first, pro-rata among
all security holders who are exercising "piggyback" registration rights, based
on the number of registrable securities originally proposed to be sold by each
of them, and (ii) second, pro-rata among all security holders who are exercising
"demand" registration rights pursuant to a registration rights agreement with
the Company, based on the number of registrable securities originally proposed
to be sold by each of them.
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Section 7. Ownership and Transfer.
(a) The Company shall maintain at its principal executive offices (or
such other office or agency of the Company as it may designate by notice to the
holder hereof), a register for this Warrant, in which the Company shall record
the name and address of the person in whose name this Warrant has been issued,
as well as the name and address of each transferee. The Company may treat the
person in whose name any Warrant is registered on the register as the owner and
holder thereof for all purposes, notwithstanding any notice to the contrary.
(b) This Warrant and the rights granted hereunder shall be assignable
by the holder hereof without the consent of the Company.
Section 8. Adjustment of Warrant Exercise Price and Number of Shares.
The Warrant Exercise Price and the number of shares of Common Stock issuable
upon exercise of this Warrant shall be adjusted from time to time as follows:
(a) Adjustment of Warrant Exercise Price upon Sale or Issuance of
Securities. If the Company shall (A) sell or issue shares of its Common Stock,
(B) issue rights, options or warrants to subscribe for or purchase shares of
Common Stock or (C) issue or sell other rights for shares of Common Stock or
securities convertible or exchangeable into shares of Common Stock (such
securities and the Common Stock collectively, the "Securities"), at a Price Per
Share (as defined below) less than the Warrant Exercise Price in effect on the
date that the Company fixes the offering price of such Securities, then in each
such case the Warrant Exercise Price in effect immediately prior to the issuance
of such Securities shall be adjusted so that it shall equal the Price Per Share
for such Securities. The adjustment provided for in this Section 8(a) shall
become effective immediately after such issuance and shall be made successively
whenever any such Securities are issued; provided that no further adjustments in
the Warrant Exercise Price shall be made upon the subsequent exercise,
conversion or exchange, as applicable, of such Securities pursuant to the
original terms of such Securities. In determining the "Price Per Share" under
this Section 8(a), there shall be taken into account any consideration received
by the Company for such Securities and any consideration required to be paid
upon the exercise, conversion or exchange, as applicable, of such Securities.
The value of all such consideration (if other than cash) shall be determined by
the Company's Board of Directors, whose determination shall be conclusive if
made in good faith. If all of such Securities are not so issued or expire or
terminate without having been exercised, converted or exchanged, the Warrant
Exercise Price then in effect shall be appropriately readjusted to the Warrant
Exercise Price that would then be in effect had the adjustments made upon the
issuance of such Securities not been made. Notwithstanding the foregoing, the
provisions of this Section 8(a) shall not apply to the issuance of Common Stock
to directors, officers or employees of, or consultants to, the Company or its
subsidiaries upon the exercise of options pursuant to a stock grant, option
plan, purchase plan or other employee stock incentive program or other
arrangement approved by the Board of Directors of the Company.
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(b) Adjustment of Warrant Exercise Price upon Subdivision or
Combination of Common Stock. If the Company at any time after the date of
issuance of this Warrant subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Warrant Exercise Price in
effect immediately prior to such subdivision will be proportionately reduced and
the number of shares of Common Stock obtainable upon exercise of this Warrant
will be proportionately increased. If the Company at any time after the date of
issuance of this Warrant combines (by combination, reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Warrant Exercise Price in effect immediately prior
to such combination will be proportionately increased and the number of shares
of Common Stock obtainable upon exercise of this Warrant will be proportionately
decreased. Any adjustment under this Section 8(b) shall become effective at the
close of business on the date the subdivision or combination becomes effective.
(c) Reclassification or Merger. In case of any reclassification or
other change of securities of the class issuable upon exercise of this Warrant
(other than a change solely in par value or from par value to no par value or
vice versa or as a result of a subdivision or combination of Shares or other
securities subject to this Warrant), the Company shall duly execute and deliver
to the holder of this Warrant a new Warrant as nearly equivalent as possible to
this Warrant; and in case of any merger of the Company with or into another
corporation (other than a merger with another corporation in which the Company
is the surviving corporation and which does not result in any reclassification
or change of outstanding securities issuable upon exercise of this Warrant), or
in case of any sale of all or substantially all of the assets of the Company,
the Company, or such successor or purchasing entity shall (i) duly execute and
deliver to the holder a new Warrant as nearly equivalent as possible to this
Warrant or (ii) make appropriate written provisions, without the issuance of a
new Warrant, so that the holder shall have the right to receive upon exercise of
this Warrant, at a total exercise price not to exceed that payable upon the
exercise of the unexercised portion of this Warrant, and in lieu of the shares
of Common Stock or other securities theretofore issuable upon exercise of this
Warrant, the kind and amount of shares of stock, other securities, money and
property receivable upon such reclassification, change, merger or sale by a
holder of the number of shares of Common Stock or other securities then
unexercised and purchasable under this Warrant. Any new Warrant shall provide
for adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 8. The provisions of this Section 8(c)
shall similarly apply to successive recapitalizations, reclassifications,
reorganizations, changes, mergers and sales.
(d) Minimum Adjustment of Warrant Exercise Price. No adjustment of the
Warrant Exercise Price shall be made under this Section 8 in an amount of less
than 1% of the Warrant Exercise Price in effect at the time such adjustment is
otherwise required to be made, but any such lesser adjustment shall be carried
forward and shall be made at the time and together with the next subsequent
adjustment which, together with any adjustments so carried forward, shall amount
to not less than 1% of such Warrant Exercise Price. No adjustments shall be made
pursuant to this Section 8 which would result in an increase in the Warrant
Exercise Price.
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(e) Notices.
(i) Immediately upon any adjustment of a Warrant Exercise
Price, the Company will give written notice thereof to the holder of
this Warrant, setting forth in reasonable detail, and certifying, the
calculation of such adjustment.
(ii) The Company will give written notice to the holder of
this Warrant at least ten (10) days prior to the date on which the
Company closes its books or takes a record (A) with respect to any
dividend or distribution upon the Common Stock, (B) with respect to any
pro rata subscription offer to holders of Common Stock or (C) for
determining rights to vote with respect to any Organic Change (as
defined below), dissolution or liquidation, provided that such
information shall be made known to the public prior to or in
conjunction with such notice being provided to such holder. Any
recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets to
another Person or other transaction in each case which is effected in
such a way that holders of Common Stock are entitled to receive (either
directly or upon subsequent liquidation) stock, securities or assets
with respect to or in exchange for Common Stock is referred to herein
as an "Organic Change."
(iii) The Company will also give written notice to the holder
of this Warrant at least ten (10) days prior to the date on which any
Organic Change, dissolution or liquidation will take place, provided
that such information shall be made known to the public prior to or in
conjunction with such notice being provided to such holder.
Section 9. Redemption.
(a) Mandatory Redemption of Warrants. The holder of this Warrant may,
at any time and from time to time on or within sixty (60) days after the closing
of any transaction or series of transactions during any six month period in
which the Company shall have issued equity or debt securities having aggregate
gross proceeds to the Company of at least $5,000,000 or more after the date of
this Warrant, demand a determination of the Redemption Price (a "Determination
Notice") for purposes of this Section 9(b). Within 5 days after the receipt of
any Determination Notice from the holder, the Company shall give to the holder
notice of the Redemption Price, including a reasonably detailed description of
the method of calculation thereof, determined as of the day preceding such
notice of the Redemption Price. At any time within 30 days after receipt of
notice of the Redemption Price the holder may demand redemption of this Warrant,
in whole or in part, at the Redemption Price by notice to the Company, which
Redemption Price shall be payable on the third Business Day after receipt of
notice of such demand (any such date, the "Redemption Due Date") in immediately
available funds to the holder upon surrender of this Warrant to the Company.
Thereupon, the right to purchase shares of Common Stock theretofore represented
by this Warrant as to which the holder has demanded (and the Company may effect)
redemption shall terminate, and this Warrant shall represent the right of the
holder to receive the full Redemption Price from the Company in accordance with
this Section.
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(b) Any right to exercise a Warrant shall terminate at 5:00 P.M. (New
York time) on the business day immediately preceding the Redemption Date or
Redemption Due Date, as applicable. On and after the Redemption Date or
Redemption Due Date, as applicable, holders of the Warrants shall have no
further rights except to receive, upon surrender of the Warrant, the redemption
price.
(c) From and after the Redemption Date specified, the Company shall, at
the place specified in the notice of redemption, upon presentation and surrender
to the Company by or on behalf of the registered holder thereof of one or more
warrant certificates evidencing Warrants to be redeemed (or an affidavit of loss
for such Warrant, which shall include provisions indemnifying the Company with
respect to such loss, and otherwise in a form reasonably acceptable to the
Company), deliver or cause to be delivered to or upon the written order of such
holder a sum in cash equal to the redemption price of each such Warrant. From
and after the Redemption Date and upon the deposit or setting aside by the
Company of a sum sufficient to redeem all the Warrants called for redemption,
such Warrants shall expire and become void and all rights hereunder and under
the warrant certificates, except the right to receive payment of the redemption
price, shall cease.
Section 10. Lost, Stolen, Mutilated or Destroyed Warrant. If this
Warrant is lost, stolen, mutilated or destroyed, the Company shall, on receipt
of an indemnification undertaking (or, in the case of a mutilated Warrant, the
Warrant), issue a new Warrant of like denomination and tenor as this Warrant so
lost, stolen, mutilated or destroyed.
Section 11. Notice. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this Warrant
must be in writing and will be deemed to have been delivered: (i) upon receipt,
when delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one Business Day after deposit with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to the Company:
Wire One Technologies, Inc.
27 Roulston Road
Windham, NH 03087
Telephone: (603) 898-0800
Facsimile: (603) 896-6344
Attention: Executive VP and Chief Financial Officer
With a copy to:
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, NY 10104
Telephone: (212) 468-8000
Facsimile: (212) 468-7999
Attention: Michael J.W. Rennock
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If to the holder, at the address of such holder or its
transferee as shall appear on the records maintained by the Company.
Each party shall provide five days' prior written notice to the other party of
any change in address or facsimile number. Written confirmation of receipt (A)
given by the recipient of such notice, consent, waiver or other communication,
(B) mechanically or electronically generated by the sender's facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by a nationally recognized overnight
delivery service shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from a nationally recognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above, respectively.
Section 12. Date. This Warrant, in all events, shall be wholly void and
of no effect after the close of business on the Expiration Date, except that
notwithstanding any other provisions hereof, the provisions of Section 7 shall
continue in full force and effect after such date as to any Warrant Shares or
other securities issued upon the exercise of this Warrant.
Section 13. Amendment and Waiver. The provisions of this Warrant may,
except as otherwise provided herein, be amended, and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holders of Warrants representing a majority of the shares of Common Stock
obtainable upon exercise of this Warrant then outstanding; provided that no such
action may increase the Warrant Exercise Price of the Warrants or decrease the
number of shares or class of stock obtainable upon exercise of any Warrant
without the written consent of the holder of such Warrant.
Section 14. Descriptive Headings; Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The corporate
laws of the State of Delaware shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the
construction, validity, enforcement and interpretation of this Warrant shall be
governed by the internal laws of the State of New York, without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of
New York, or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of New York.
WIRE ONE TECHNOLOGIES, INC.
By: /s/ Christopher A. Zigmont
--------------------------------------
Name: Christopher A. Zigmont
Title: Executive VP and Chief Financial
Officer
EXHIBIT A TO WARRANT
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
WIRE ONE TECHNOLOGIES, INC.
The undersigned holder hereby exercises the right to purchase
_____________________ (_______) of the shares of Common Stock ("Warrant Shares")
of Wire One Technologies, Inc., a Delaware corporation (the "Company"),
evidenced by the attached Warrant (the "Warrant"). Capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Warrant.
1. Form of Warrant Exercise Price. The Holder intends that payment of the
Warrant Exercise Price shall be made as:
_______________ a "Cash Exercise" with respect to _______________________
Warrant Shares; and/or
_______________ a "Cashless Exercise" with respect to ___________________
Warrant Shares (to the extent permitted by the terms of
the Warrant).
2. Payment of Warrant Exercise Price. The holder shall pay the sum
of $________ to the Company in accordance with the terms of the Warrant.
3. Delivery of Warrant Shares. The Company shall deliver to the
holder _________ Warrant Shares in accordance with the terms of the Warrant.
Date: ___________ _, ____
- ------------------------------------
Name of Registered Holder
By:
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Name:
Title:
EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer to
___________, with an address at
_________________________________________________________, Federal
Identification No. _____________, a warrant to purchase ____________ shares of
the Common Stock of Wire One Technologies, Inc., a Delaware corporation,
represented by warrant certificate no. _________, standing in the name of the
undersigned on the books of said corporation. The undersigned does hereby
irrevocably constitute and appoint ___________, attorney to transfer the
warrants of said corporation, with full power of substitution in the premises.
Dated: ______, _____
[HOLDER]
By:
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Its:
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