EXHIBIT 4.1
NEITHER THE WARRANTS REPRESENTED BY THIS WARRANT CERTIFICATE NOR THE SHARES OF
COMMON STOCK OR ANY OTHER SECURITIES ISSUABLE UPON EXERCISE OF SUCH WARRANTS
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH WARRANTS
HAVE BEEN ACQUIRED, AND ANY SHARES OF COMMON STOCK OR ANY OTHER SECURITIES
ISSUABLE UPON EXERCISE OF SUCH WARRANTS ARE REQUIRED TO BE ACQUIRED, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT
BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH WARRANTS AND/OR SUCH SHARES OR OTHER
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT AND SUCH STATE SECURITIES LAWS.
VOID AFTER 5:00 P.M. ON 13, 2008
GOAMERICA, INC.
WARRANT CERTIFICATE
1,000,000 COMMON STOCK PURCHASE WARRANTS
Hackensack, New Jersey
Warrant Certificate No. SC-1 As of November 14, 2003
THIS IS TO CERTIFY THAT, for value received, Stellar
Continental LLC (the a "Warrantholder") is the registered owner of such number
of Common Stock Purchase Warrants (each, a "Warrant") set forth above, each
Warrant entitling the owner thereof to purchase from GoAmerica Inc., a Delaware
corporation (the a "Company"), one duly authorized, validly issued, fully paid
and non-assessable share (each, a "Warrant Share") of the common stock, par
value $.01 per share (a "Common Stock"), of the Company, at an aggregate
purchase price of $0.46 per share (the a "Purchase Price"), at any time on or
after the period commencing on the date hereof and terminating at 5:00 p.m., New
York City time, on November 1, 2008 (the a "Expiration Date"), all subject to
the terms and conditions contained herein. As provided herein, the Purchase
Price and the number of shares of Common Stock or other securities which may be
purchased upon the exercise of the Warrants evidenced by this Warrant
Certificate are, upon the happening of certain events, subject to modification
and adjustment.
This Warrant Certificate, together with any warrant
certificate(s) issued in replacement or substitution hereof (as provided for
herein) evidencing all or part of the Warrants evidenced hereby, are sometimes
collectively referred to herein as the "Warrant Certificates"
The rights of the registered holder of this Warrant
Certificate shall be subject to the following further terms and conditions:
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1. EXERCISE OF WARRANTS.
(a) The Warrants may be exercised, in whole or in part, on or
prior to the Expiration Time by surrendering this Warrant Certificate, with the
purchase form provided for herein duly executed by the Warrantholder or by the
Warrantholder's duly authorized attorney-in-fact, at the principal office of the
Company, presently located at 433 Hackensack Avenue, Hackensack, New Jersey
07601 or at such other office or agency in the United States as the Company may
designate by notice in writing to the Warrantholder (in either event, the
"Company Offices"), accompanied by payment in full, either in the form of cash,
bank cashier's check or certified check payable to the order of the Company, of
the Exercise Price payable in respect of the Warrants being exercised.
Alternatively, payment of the Exercise Price may be made by cashless exercise
method, as set forth in subparagraph 1(b) below. If fewer than all of the
Warrants are exercised, the Company shall, upon each exercise prior to the
Expiration Time, execute and deliver to the Warrantholder a new Warrant
Certificate (dated as of the date hereof) evidencing the balance of the Warrants
that remain exercisable.
(b) The Warrantholder may also exercise the Warrants by paying
the Exercise Price by converting all or any portion of the unexercised Warrants
hereunder into the number of shares of Common Stock determined in accordance
with the formula set forth below (the "Cashless Exercise") by delivering an
Exercise Form substantially in the form as appended hereto to the Company by
hand delivery, by U.S. Express Mail or Federal Express or other recognized
national delivery service, or by certified or registered mail, return receipt
requested, addressed to its principal office and accompanied by this Warrant
Certificate:
X = Y(A-B)
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A
Where: X = the number of the shares of Common Stock to be issued
to the Warrantholder upon exercise pursuant to this
Section 1(b).
Y = the number of shares of Common Stock represented by
the Warrants so exercised.
A = the Market Price (as defined in Paragraph 3(d)
below) of one share of Common Stock on the trading
date immediately preceding the Company's receipt of
the Exercise Form.
B = the Purchase Price.
(c) On the date of exercise of the Warrants, the Warrantholder
exercising same shall be deemed to have become the holder of record for all
purposes of the Warrant Shares to which the exercise relates.
(d) As soon as practicable, but not in excess of ten days,
after the exercise of all or part of the Warrants evidenced by this Warrant
Certificate, the Company, at its expense (including the payment by it of any
applicable issue taxes), will cause to be issued in the name of and delivered to
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the Warrantholder a certificate or certificates evidencing the number of duly
authorized, validly issued, fully paid and non-assessable Warrant Shares to
which the Warrantholder shall be entitled upon such exercise. In the event that
only a portion of the Warrants have been exercised, the Company shall issue a
replacement Warrant Certificate for the remaining Warrant Shares such that the
number of Warrant Shares remaining shall be equal to 2% of the issued Common
Stock, on a fully diluted basis less the number of Warrant Shares (as adjusted
in Paragraph 3) exercised, and the Purchase Price shall be the purchase price
per share as adjusted in Paragraph 3 below.
(e) No certificates for fractional Warrant Shares shall be
issued upon the exercise of any of the Warrants but, in lieu thereof, the
Company shall, upon exercise of all the Warrants, round up any fractional
Warrant Share to the nearest whole share of Common Stock.
2. ISSUANCE OF COMMON STOCK; RESERVATION OF SHARES.
(a) The Company covenants and agrees that all Warrant Shares
which may be issued upon the exercise of all or part of the Warrants will, upon
issuance in accordance with the terms hereof, be validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof other than liens created by the Warrantholder.
(b) The Company further covenants and agrees that if any shares
of Common Stock to be reserved for the purpose of the issuance of Warrant Shares
upon the exercise of Warrants require registration with, or approval of, any
governmental authority under any federal or state law before such shares may be
validly issued or delivered upon exercise, then the Company will promptly use
its best efforts to effect such registration or obtain such approval, as the
case may be.
3. ADJUSTMENTS OF PURCHASE PRICE, NUMBER AND CHARACTER OF WARRANT SHARES,
AND NUMBER OF WARRANTS.
The Purchase Price the number and kind of securities
purchasable upon the exercise of each Warrant shall be subject to adjustment
from time to time upon the happening of the events enumerated in this Section 3.
(a) Stock Dividends, Subdivisions and Combinations. In case the
Company shall at any time on or before the Expiration Time:
(i) Issue additional shares of Common Stock or
securities convertible into Common Stock;
(ii) pay a dividend in shares of Common Stock or
make a distribution in shares of Common
Stock or such other stock to holders of all
its outstanding shares of Common Stock;
(iii) subdivide or reclassify the outstanding
shares into another class of securities or
subdivide or reclassify the Shares of Common
Stock into a greater number of shares;
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(iv) combine the outstanding shares of Common
Stock into a smaller number of shares of
Common Stock;
(v) 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 continuing
corporation);
then the number and kind of Warrant Shares purchasable upon exercise of each
Warrant outstanding immediately prior thereto shall be adjusted so that the
Warrantholder shall be entitled to receive the kind and number of shares of
Common Stock or other securities of the Company which the Warrantholder would
have owned or have been entitled to receive after the happening of any of the
events described above had such Warrant been exercised in full immediately prior
to the earlier of the happening of such event or any record date in respect
thereto. In the event of any adjustment of the number of Warrant Shares
purchasable upon the exercise of each then outstanding Warrants pursuant to this
Paragraph 3(a), the Purchase Price shall be adjusted to be the amount resulting
from dividing the number of shares of Common Stock (including fractional shares
of Common Stock) covered by such Warrant immediately after such adjustment into
the total amount payable upon exercise of such Warrant in full immediately prior
to such adjustment. An adjustment made pursuant to this Paragraph 3(a) shall
become effective immediately after the effective date of such event retroactive
to the record date for any such event. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) Extraordinary Dividends. In case the Company shall at any
time on or before the Expiration Time (i) fix a record date for the issuance of
rights, options, or warrants to all holders of its outstanding shares of Common
Stock, entitling them (for a period expiring within 45 days after such record
date) to subscribe for or purchase shares of Common Stock (or securities
exchangeable for or convertible into shares of Common Stock) at a price per
share of Common Stock (or having an exchange or conversion price per share of
Common Stock, with respect to a security exchangeable for or convertible into
shares of Common Stock) which is lower than the current Market Price per share
of Common Stock (as defined in Paragraph 3(c) below), or (ii) receives a tender
offer for any of the securities of the company (together, an "Extraordinary
Dividend Event") then Company, thirty (30) days prior to such record date,
agrees to notify Warrantholder and Warrantholder agrees to keep any such
information provided under this Paragraph 3(b)(ii) confidential as between the
Company and the Warrantholder and their respective counsel for so long as and to
the extent that such information has not already been made publicly available by
filings with the Securities and Exchange Commission or by press releases. The
Company hereby agrees to allow Warrantholder to have the option, at
Warrantholder's sole discretion, to participate in any Extraordinary Dividend
Event.
(c) Current Market Price Defined. For the purpose of any
computation under Paragraphs 3(b), the current Market Price per share of Common
Stock at any date shall be deemed to be the average daily Closing Price of the
shares of Common Stock for twenty consecutive trading days ending within fifteen
days before the date in question. The term "Closing Price" of the shares of
Common Stock for a day or days shall mean (i) if the shares of Common Stock are
listed or admitted for trading on a national securities exchange, the last
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reported sales price regular way, or, in case no such reported sale takes place
on such day or days, the average of the reported closing bid and asked prices
regular way, in either case on the principal national securities exchange on
which the shares of the Common Stock are listed or admitted for trading, or (ii)
if the shares of Common Stock are not listed or admitted for trading on a
national securities exchange, (A) the last transaction price for the Common
Stock on The Nasdaq Stock Market ("Nasdaq") or, in the case no such reported
transaction takes place on such day or days, the average of the reported closing
bid and asked prices thereof quoted on Nasdaq, or (B) if the shares of Common
Stock are not quoted on Nasdaq, the average of the closing bid and asked prices
of the Common Stock as quoted on the Over-The-Counter Bulletin Board maintained
by the National Association of Securities Dealers, Inc. (the "Bulletin Board"),
or (C) if the shares of Common Stock are not quoted on Nasdaq nor on the
Bulletin Board, the average of the closing bid and asked prices of the common
stock in the over-the-counter market, as reported by The Pink Sheets, LLC, or an
equivalent generally accepted reporting service, or (iii) if on any such trading
day or days the shares of Common Stock are not quoted by any such organization,
the fair market value of the shares of Common Stock on such day or days, as
determined in good faith by the Board of Directors of the Company, shall be
used.
(d) Minimum Adjustment. Except as hereinafter provided, no
adjustment of the Purchase Price hereunder shall be made if such adjustment
results in a change of the Purchase Price then in effect of less than one cent
($.01) per share. Any adjustment of less than one cent ($.01) per share of any
Purchase Price shall be carried forward and shall be made at the time of and
together with any subsequent adjustment which, together with adjustment or
adjustments so carried forward, amounts to one cent ($.01) per share or more.
However, upon exercise of this Warrant Certificate, the Company shall make all
necessary adjustments (to the nearest cent) not theretofore made to the Purchase
Price up to and including the effective date upon which this Warrant Certificate
is exercised.
(e) Notice of Adjustments. Whenever the Purchase Price shall be
adjusted pursuant to this Section 3, the Company shall promptly deliver a
certificate signed by the President or a Vice President and by the Chief
Financial Officer, Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company, setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated (including a description of the basis on
which the Board of Directors of the Company made any determination hereunder),
by first class mail postage prepaid to each Warrantholder.
(f) Capital Reorganizations and Other Reclassifications. In
case of any capital reorganization of the Company, or of any reclassification of
the shares of Common Stock (other than a reclassification, subdivision or
combination of shares of Common Stock referred to in Paragraph 3(a)), or in case
of the consolidation of the Company with, or the merger of the Company with, or
merger of the Company into, any other corporation (other than a reclassification
of the shares of Common Stock referred to in Paragraph 3(a) or a consolidation
or merger which does not result in any reclassification or change of the
outstanding shares of Common Stock) or of the sale of the properties and assets
of the Company as, or substantially as, an entirety to any other corporation or
entity, each Warrant shall, after such capital reorganization, reclassification
of shares of Common Stock, consolidation, merger, or sale, be exercisable, upon
the terms and conditions specified in this Warrant Certificate, for the kind,
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amount and number of shares or other securities, assets, or cash to which a
holder of the number of shares of Common Stock purchasable (at the time of such
capital reorganization, reclassification of shares of Common Stock,
consolidation, merger or sale) upon exercise of such Warrant would have been
entitled to receive upon such capital reorganization, reclassification of shares
of Common Stock, consolidation, merger, or sale; and in any such case, if
necessary, the provisions set forth in this Section 3 with respect to the rights
and interests thereafter of the Warrantholder shall be appropriately adjusted so
as to be applicable, as nearly equivalent as possible, to any shares or other
securities, assets, or cash thereafter deliverable on the exercise of the
Warrants. The Company shall not effect any such consolidation, merger, or sale,
unless prior to or simultaneously with the consummation thereof the successor
corporation or entity (if other than the Company) resulting from such
consolidation or merger or the corporation or entity purchasing such assets or
other appropriate corporation or entity shall assume, by written instrument, the
obligation to deliver to the Warrantholder such shares, securities, assets, or
cash as, in accordance with the foregoing provisions, such holders may be
entitled to purchase and the other obligations hereunder. The subdivision or
combination of shares of Common Stock at any time outstanding into a greater or
lesser number of shares shall not be deemed to be a reclassification of the
shares of Common Stock for purposes of this Paragraph 3(f).
(h) Adjustments to Other Securities. In the event that at any
time, as a result of an adjustment made pursuant to this Section 3, the
Warrantholder shall become entitled to purchase any shares or securities of the
Company other than the shares of Common Stock, thereafter the number of such
other shares or securities so purchasable upon exercise of each Warrant and the
exercise price for such shares or securities shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as possible to the
provisions with respect to the shares of Common Stock contained in Paragraphs
3(a) through (d), inclusive.
(i) Deferral of Issuance of Additional Shares in Certain
Circumstances. In any case in which this Section 3 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event issuing to the Warrantholder exercised after such record date the shares
of Common Stock, if any, issuable upon such exercise over and above the Warrant
Shares, if any, issuable upon such exercise on the basis of the Purchase Price
in effect prior to such adjustment; provided, however, that the Company shall
deliver as soon as practicable to such holder a due bill or other appropriate
instrument provided by the Company evidencing such holder's right to receive
such additional shares of Common Stock upon the occurrence of the event
requiring such adjustment.
4. DEFINITION OF COMMON STOCK.
The Common Stock issuable upon exercise of the Warrants shall
be the Common Stock as constituted on the date hereof except as otherwise
provided in Section 3.
5. REPLACEMENT OF SECURITIES.
If this Warrant Certificate shall be lost, stolen, mutilated or
destroyed, the Company shall, on such terms as to indemnity or otherwise as the
Company may in its discretion reasonably impose, issue a new certificate of like
tenor or date representing in the aggregate the right to subscribe for and
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purchase the number of shares of Common Stock which may be subscribed for and
purchased hereunder as adjusted at the time of replacement. Any such new
certificate shall constitute an original contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed Warrant
Certificate shall be at any time enforceable by anyone.
6. REGISTRATION.
This Warrant Certificate, as well as all other Warrant
Certificates representing Warrants shall be numbered and shall be registered in
a register (the "Warrant Register") maintained at the Company Offices as they
are issued. The Warrant Register shall list the name, address and Social
Security or other Federal Identification Number, if any, of all Warrantholders.
The Company shall be entitled to treat the Warrantholder as set forth in the
Warrant Register as the owner in fact of the Warrants as set forth therein for
all purposes and shall not be bound to recognize any equitable or other claim to
or interest in such Warrants on the part of any other person, and shall not be
liable for any registration of transfer of Warrants that are registered or to be
registered in the name of a fiduciary or the nominee of a fiduciary unless made
with the actual knowledge that a fiduciary or nominee is committing a breach of
trust in requesting such registration of transfer, or with such knowledge of
such facts that its participation therein amounts to bad faith.
7. TRANSFER.
NEITHER THE WARRANTS REPRESENTED BY THIS WARRANT CERTIFICATE
NOR THE SHARES OF COMMON STOCK OR ANY OTHER SECURITIES ISSUABLE UPON EXERCISE OF
SUCH WARRANTS HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SUCH WARRANTS HAVE BEEN ACQUIRED, AND ANY SHARES OF COMMON STOCK OR ANY OTHER
SECURITIES ISSUABLE UPON EXERCISE OF SUCH WARRANTS ARE REQUIRED TO BE ACQUIRED,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY
NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH WARRANTS AND/OR SUCH SHARES OR OTHER
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND SUCH STATE
SECURITIES LAWS.
8. EXCHANGE OF WARRANT CERTIFICATES.
This Warrant Certificate may be exchanged for another
certificate or certificates entitling the Warrantholder thereof to purchase a
like aggregate number of Warrant Shares as this Warrant Certificate entitles
such Warrantholder to purchase. A Warrantholder desiring to so exchange this
Warrant Certificate shall make such request in writing delivered to the Company,
and shall surrender this Warrant Certificate therewith. Thereupon, the Company
shall execute and deliver to the person entitled thereto a new certificate or
certificates, as the case may be, as so requested.
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9. NOTICES.
All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered in person, against written
receipt therefor, or two days after being sent, by registered or certified mail,
postage prepaid, return receipt requested, and, if to the Warrantholder, at such
address as is shown on the Warrant Register or as may otherwise may have been
furnished to the Company in writing in accordance with this Section 9 by the
Warrantholder and, if to the Company, at the Company Offices or such other
address as the Company shall give notice thereof to the Warrantholder in
accordance with this Section 9.
10. REGISTRATION RIGHTS.
The Warrantholder shall have unlimited piggyback registration rights
with respect to exercise of the Warrants and resale of the Warrant Shares. The
Company shall register the Warrant Shares as soon as reasonably possible on the
next to be filed Form S-8 (if eligible) or Form S-1, S-2, S-3, or on such other
next registration statement as the Company is permitted to use for the type of
transaction contemplated. The Company shall keep such registration statement(s)
effective until all Warrant Shares are sold or until an opinion of counsel
reasonably satisfactory to Company and Warrantholder and/or Seller is given to
Company that such shares may be sold absent a registration statement. The
Company shall also register any securities to be received by Warrantholder in
the event of a merger or sale of its assets on Form S-4 or such similar form
upon which other securities to be issued to the Company's Shareholders are being
registered.
11. MISCELLANEOUS.
This Warrant Certificate and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This certificate is deemed to have been delivered in the State of New
York and shall be construed and enforced in accordance with and governed by the
laws of such State. The headings in this Warrant Certificate are for purposes of
reference only, and shall not limit or otherwise affect any of the terms hereof.
11. EXPIRATION.
Unless as hereinafter provided, the right to exercise these
Warrants shall expire at the Expiration Date.
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Dated: As of November 14, 2003
GOAMERICA, INC.
By: /s/ Daniel R. Luis
---------------------------------
Name: Daniel R. Luis
Title:Chief Executive Officer
ATTEST:
/s/ Wayne D. Smith
- ---------------------------------------
Acting Secretary
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EXERCISE FORM
Dated:_______________, ____
TO: GOAMERICA, INC.:
The undersigned hereby irrevocably elects to exercise the
within Warrant, to the extent of purchasing _________________ shares of Common
Stock, and hereby makes payment of _____________ in payment of the actual
Exercise Price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
---------------------------------------------------------
(Please type or print in block letters)
Taxpayer
Identification
Number:
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Address:
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Signature:
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(Signature must conform in all respects to the name of
the Warrantholder as set forth on the face of
this Warrant Certificate.)
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ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________________________________
(Please type or print in block letters)
hereby sells, assigns and transfers unto:
Name:
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(Please type or print in block letters)
Taxpayer
Identification
Number:
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Address:
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this Warrant Certificate and the Warrants represented by this Warrant
Certificate to the extent of ________________ Warrants and does hereby
irrevocably constitute and appoint ___________________________ Attorney-in-Fact,
to transfer the same on the books of the Company with full power of substitution
in the premises.
Dated: _________________________
Signature:
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(Signature must conform in all respects to the name of
the Warrantholder as set forth on the face
of this Warrant Certificate.)
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