EXHIBIT 4.6
THE SECURITIES REPRESENTED HEREBY MAY NOT BE TRANSFERRED UNLESS (I)
SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF
1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144(K), OR
(III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933 OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS.
SUBJECT TO THE PROVISIONS OF SECTION 10 HEREOF, THIS WARRANT SHALL BE
VOID AFTER 5:00 P.M. EASTERN TIME ON DECEMBER 18, 2008 (the "EXPIRATION DATE").
DATE OF ISSUANCE: December 18, 2003 NO. 83
GOAMERICA, INC.
WARRANT TO PURCHASE 730,800 SHARES OF
COMMON STOCK, PAR VALUE $0.01 PER SHARE
For VALUE RECEIVED, Derek Caldwell ("Warrantholder"), is entitled to
purchase, subject to the provisions of this Warrant, from GoAmerica, Inc., a
Delaware corporation ("Company"), at any time and from time to time following
the Date of Issuance to and including 5:00 p.m., New York time, on the
Expiration Date or, if such day is not a Business Day, on the next preceding
Business Day, at an exercise price per share equal to $0.15 (the exercise price
in effect being herein called the "Warrant Price"), 730,800 shares ("Warrant
Shares") of the Company's Common Stock, par value $0.01 per share ("Common
Stock"). The number of Warrant Shares purchasable upon exercise of this Warrant
and the Warrant Price shall be subject to adjustment from time to time as
described herein.
Section 1. Registration. The Company shall maintain books for the
transfer and registration of the Warrant. Upon the initial issuance of this
Warrant, the Company shall issue and register the Warrant in the name of the
Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be
transferred only pursuant to a registration statement filed under the Securities
Act of 1933, as amended (the "Securities Act"), or an exemption from such
registration (which shall include permitted transfers or assignments to
affiliates of the Warrantholder). Subject to such restrictions, the Company
shall transfer this Warrant from time to time upon the books to be maintained by
the Company for that purpose, upon surrender thereof for transfer properly
endorsed or accompanied by appropriate instructions for transfer and such other
documents as may be reasonably required by the Company, including, if required
by the Company, an opinion of its counsel to the effect that such transfer is
exempt from the registration requirements of the Securities Act, to establish
that such transfer is being made in accordance with the terms hereof, and a new
Warrant shall be issued to the transferee and the surrendered Warrant shall be
canceled by the Company.
Section 3. Exercise of Warrant. Subject to the provisions hereof, the
Warrantholder may exercise this Warrant in whole or in part at any time after
the Date of Issuance and prior to its expiration upon surrender of the Warrant,
together with delivery of the duly executed Warrant exercise form attached
hereto as Appendix A (the "Exercise Agreement") and payment by cash, certified
check or wire transfer of funds to an account specified by the Company from time
to time for the aggregate Warrant Price for that number of Warrant Shares then
being purchased, to the Company during normal business hours on any business day
at the Company's principal executive offices (or such other office or agency of
the Company as it may designate by notice to the Warrantholder).
(a) The Warrant Shares so purchased shall be deemed to be
issued to the Warrantholder or such Warrantholder's designee, as the record
owner of such shares, as of the close of business on the date on which this
Warrant shall have been surrendered (or evidence of loss, theft or destruction
thereof and security or indemnity satisfactory to the Company shall have been
received by the Company), the Warrant Price shall have been paid and the
completed Exercise Agreement shall have been delivered. Warrant Shares so
purchased, representing the aggregate number of shares specified in the Exercise
Agreement, shall be delivered to the Warrantholder as promptly as practicable,
not exceeding three (3) business days after this Warrant shall have been so
exercised in the case of electronic delivery (if permitted by the Company's
transfer agent), or five (5) business days after this Warrant shall have been so
exercised in the case of physical delivery, and, in the case of physical
delivery, shall mail the certificate(s) representing such shares to the
Warrantholder at the address specified by the Warrantholder. Any certificates so
delivered shall be in such denominations as may be requested by the
Warrantholder and shall be registered in the name of such Warrantholder or such
other name as shall be designated by such Warrantholder. If this Warrant shall
have been exercised only in part, then, unless this Warrant has expired, the
Company shall, at its expense, at the time of delivery of such Warrant Shares,
deliver to the Warrantholder a new Warrant representing the number of shares
with respect to which this Warrant shall not then have been exercised. As used
herein, "business day" means a day, other than a Saturday or Sunday, on which
banks in New York City are open for the general transaction of business. Each
exercise hereof shall constitute the re-affirmation by the Warrantholder that
the representations and warranties contained in Section 5 of the Purchase
Agreement (as defined below) are true and correct in all material respects with
respect to the Warrantholder as of the time of such exercise.
(b) This Warrant shall also be deemed to have been exercised
when the Company has received a written notice to the Company that the
Warrantholder is exercising the Warrant (or a portion thereof) on a "cashless"
basis in exchange for that number of shares of Common Stock equal to the product
of (x) the number of shares as to which such Warrants are being exercised
multiplied by (y) a fraction, the numerator of which is the Fair Market Value
(as hereinafter defined) of the Common Stock less the Exercise Price and the
denominator of which is such Fair Market Value. Solely for the purposes of this
Section 3(b), Fair Market Value shall be calculated either (i) on the trading
date immediately preceding the date on which the Warrant Exercise Form annexed
hereto as to such exercise is deemed to have been sent to the Company pursuant
to Section 14 hereof (the "Notice Date"), (ii) as the average of the Fair Market
Values for each of the twenty trading days preceding the date of issuance of
this Warrant, or (iii) on the date of issuance of this Warrant, whichever
results in a higher Fair Market Value. Fair Market Value means as to any
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security, the greater of either (i) the closing price on the day "Fair Market
Value" is to be determined or (ii) the average of the closing prices of such
security's sales on the New York Stock Exchange, the Nasdaq Stock Market, the
American Stock Exchange or any other domestic securities exchanges on which such
security may at the time be listed, or, if there have been no sales on any such
exchanges on any day, the average of the highest bid and lowest asked prices on
all such exchanges at the end of such day, or, if on any day such security is
not so listed, the average of the representative bid and asked prices quoted in
the Nasdaq Stock Market as of 4:00 P.M., New York time, on such day, or, if on
any day such security is not quoted on the Nasdaq Stock Market, the average of
the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization (collectively, a "Securities
Exchange"), in each such case averaged over a period of three (3) days
consisting of the day as of which "Fair Market Value" is being determined and
the two (2) consecutive Business Days prior to such day. If at any time such
security is not listed or quoted on any Securities Exchange, the "Fair Market
Value" shall be the fair value thereof determined jointly by the Company and the
Warrantholder; provided, that if such parties are unable to reach agreement
within a reasonable period of time, such fair value shall be determined by an
appraiser jointly selected by the Company and the Warrantholder. The
determination of such appraiser shall be final and binding on the Company and
the Warrantholder, and the fees and expenses of such appraiser shall be paid by
the Company
Section 4. Compliance with the Securities Act of 1933. Subject to the
provisions of the Purchase Agreement (as defined below), the Company may cause
the legend set forth on the first page of this Warrant to be set forth on each
Warrant or similar legend on any security issued or issuable upon exercise of
this Warrant, unless counsel for the Company is of the opinion as to any such
security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the Warrantholder in respect of which such shares are
issued, and in such case, the Company shall not be required to issue or deliver
any certificate for Warrant Shares or any Warrant until the person requesting
the same has paid to the Company the amount of such tax or has established to
the Company's reasonable satisfaction that such tax has been paid. The
Warrantholder shall be responsible for all taxes, other than documentary stamp
or transfer taxes due under federal, state or other law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
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Section 7. Reservation of Common Stock. The Company hereby represents
and warrants that there have been reserved, and the Company shall at all
applicable times keep reserved until issued (if necessary) as contemplated by
this Section 7, out of the authorized and unissued shares of Common Stock,
sufficient shares to provide for the exercise of the rights of purchase
represented by this Warrant. The Company agrees that all Warrant Shares issued
upon due exercise of the Warrant shall be, at the time of delivery of the
certificates for such Warrant Shares, duly authorized, validly issued, fully
paid and non-assessable shares of Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall, at any time or from time to time
while this Warrant is outstanding, pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, subdivide its outstanding shares of
Common Stock into a greater number of shares or combine its outstanding shares
of Common Stock into a smaller number of shares or issue by reclassification of
its outstanding shares of Common Stock any shares of its capital stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), then the number of
Warrant Shares purchasable upon exercise of the Warrant and the Warrant Price in
effect immediately prior to the date upon which such change shall become
effective, shall be adjusted by the Company so that the Warrantholder thereafter
exercising the Warrant shall be entitled to receive the number of shares of
Common Stock or other capital stock which the Warrantholder would have received
if the Warrant had been exercised immediately prior to such event upon payment
of a Warrant Price that has been adjusted to reflect a fair allocation of the
economics of such event to the Warrantholder. Such adjustments shall be made
successively whenever any event listed above shall occur.
(b) If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company with
another corporation in which the Company is not the survivor, or sale, transfer
or other disposition of all or substantially all of the Company's assets to
another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger, sale, transfer or other
disposition, lawful and adequate provision shall be made whereby each
Warrantholder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions herein specified and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of the Warrant,
such shares of stock, securities or assets as would have been issuable or
payable with respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore issuable upon exercise of
the Warrant, had such reorganization, reclassification, consolidation, merger,
sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of
each Warrantholder to the end that the provisions hereof (including, without
limitation, provision for adjustment of the Warrant Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any shares
of stock, securities or assets thereafter deliverable upon the exercise hereof.
The Company shall not effect any such consolidation, merger, sale, transfer or
other disposition unless prior to or simultaneously with the consummation
thereof the successor corporation (if other than the Company) resulting from
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such consolidation or merger, or the corporation purchasing or otherwise
acquiring such assets or other appropriate corporation or entity shall assume
the obligation to deliver to the Warrantholder, at the last address of such
Warrantholder appearing on the books of the Company, such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
Warrantholder may be entitled to purchase, and to assume the other obligations
under this Warrant. The provisions of this paragraph (b) shall similarly apply
to successive reorganizations, reclassifications, consolidations, mergers,
sales, transfers or other dispositions.
(c) In case the Company shall fix a payment date for the
making of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred to in Section
8(a)), or subscription rights or warrants, the Warrant Price to be in effect
after such payment date shall be determined by multiplying the Warrant Price in
effect immediately prior to such payment date by a fraction, the numerator of
which shall be the total number of shares of Common Stock then outstanding
multiplied by the Market Price (as defined below) per share of Common Stock
immediately prior to such payment date, less the fair market value (as
determined by the Company's Board of Directors in good faith) of said assets or
evidences of indebtedness so distributed, or of such subscription rights or
warrants, and the denominator of which shall be the total number of shares of
Common Stock outstanding multiplied by such Market Price per share of Common
Stock immediately prior to such payment date. "Market Price" as of a particular
date (the "Valuation Date") shall mean the following: (a) if the Common Stock is
then listed on a national stock exchange, the closing sale price of one share of
Common Stock on such exchange on the last trading day prior to the Valuation
Date; (b) if the Common Stock is then quoted on The Nasdaq Stock Market, Inc.
("Nasdaq"), the National Association of Securities Dealers, Inc. OTC Bulletin
Board (the "Bulletin Board") or such similar exchange or association, the
closing sale price of one share of Common Stock on Nasdaq, the Bulletin Board or
such other exchange or association on the last trading day prior to the
Valuation Date or, if no such closing sale price is available, the average of
the high bid and the low asked price quoted thereon on the last trading day
prior to the Valuation Date; or (c) if the Common Stock is not then listed on a
national stock exchange or quoted on Nasdaq, the Bulletin Board or such other
exchange or association, the fair market value of one share of Common Stock as
of the Valuation Date, shall be determined in good faith by the Board of
Directors of the Company and the Warrantholder. If the Common Stock is not then
listed on a national securities exchange or quoted on Nasdaq, the Bulletin Board
or such other exchange or association, the Board of Directors of the Company
shall respond promptly, in writing, to an inquiry by the Warrantholder prior to
the exercise hereunder as to the fair market value of a share of Common Stock as
determined by the Board of Directors of the Company. In the event that the Board
of Directors of the Company and the Warrantholder are unable to agree upon the
fair market value in respect of subpart (c) hereof, the Company and the
Warrantholder shall jointly select an appraiser, who is experienced in such
matters. The decision of such appraiser shall be final and conclusive, and the
cost of such appraiser shall be borne equally by the Company and the
Warrantholder. Such adjustment shall be made successively whenever such a
payment date is fixed.
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(d) An adjustment to the Warrant Price shall become effective
immediately after the payment date in the case of each dividend or distribution
and immediately after the effective date of each other event which requires an
adjustment.
(e) In the event that, as a result of an adjustment made
pursuant to this Section 8, the Warrantholder shall become entitled to receive
any shares of capital stock of the Company other than shares of Common Stock,
the number of such other shares so receivable upon exercise of this Warrant
shall be subject thereafter to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Warrant Shares contained in this Warrant.
(f) Except as provided in subsection (g) hereof, if and
whenever the Company shall issue or sell, or is, in accordance with any of
subsections (f)(l) through (f)(7) hereof, deemed to have issued or sold, any
shares of Common Stock for no consideration or for a consideration per share
less than the Warrant Price in effect immediately prior to the time of such
issue or sale, then and in each such case (a "Trigger Issuance") the
then-existing Warrant Price, shall be reduced, as of the close of business on
the effective date of the Trigger Issuance, to a price determined as follows:
Adjusted Warrant Price = (A x B) + D
-----------
A+C
where
"A" equals the number of shares of Common Stock
outstanding, including Additional Shares of Common Stock (as defined below)
deemed to be issued hereunder, immediately preceding such Trigger Issuance;
"B" equals the Warrant Price in effect immediately
preceding such Trigger Issuance;
"C" equals the number of Additional Shares of Common
Stock issued or deemed issued hereunder as a result of the Trigger Issuance; and
"D" equals the aggregate consideration, if any,
received or deemed to be received by the Company upon such Trigger Issuance;
provided, however, that in no event shall the Warrant
Price after giving effect to such Trigger Issuance be greater than the Warrant
Price in effect prior to such Trigger Issuance.
For purposes of this subsection (f), "Additional Shares of
Common Stock" shall mean all shares of Common Stock issued by the Company or
deemed to be issued pursuant to this subsection (f), other than Excluded
Issuances (as defined in subsection (g) hereof).
For purposes of this subsection (f), the following subsections
(f)(l) to (f)(7) shall also be applicable:
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(f)(1) Issuance of Rights or Options. In case at any
time the Company shall in any manner grant (directly and not
by assumption in a merger or otherwise) any warrants or other
rights to subscribe for or to purchase, or any options for the
purchase of, Common Stock or any stock or security convertible
into or exchangeable for Common Stock (such warrants, rights
or options being called "Options" and such convertible or
exchangeable stock or securities being called "Convertible
Securities") whether or not such Options or the right to
convert or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which
Common Stock is issuable upon the exercise of such Options or
upon the conversion or exchange of such Convertible Securities
(determined by dividing (i) the sum (which sum shall
constitute the applicable consideration) of (x) the total
amount, if any, received or receivable by the Company as
consideration for the granting of such Options, plus (y) the
aggregate amount of additional consideration payable to the
Company upon the exercise of all such Options, plus (z), in
the case of such Options which relate to Convertible
Securities, the aggregate amount of additional consideration,
if any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock
issuable upon the exercise of such Options or upon the
conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than
the Warrant Price in effect immediately prior to the time of
the granting of such Options, then the total number of shares
of Common Stock issuable upon the exercise of such Options or
upon conversion or exchange of the total amount of such
Convertible Securities issuable upon the exercise of such
Options shall be deemed to have been issued for such price per
share as of the date of granting of such Options or the
issuance of such Convertible Securities and thereafter shall
be deemed to be outstanding for purposes of adjusting the
Warrant Price. Except as otherwise provided in subsection
8(f)(3), no adjustment of the Warrant Price shall be made upon
the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such Options or upon the actual
issue of such Common Stock upon conversion or exchange of such
Convertible Securities.
(f)(2) Issuance of Convertible Securities. In case
the Company shall in any manner issue (directly and not by
assumption in a merger or otherwise) or sell any Convertible
Securities, whether or not the rights to exchange or convert
any such Convertible Securities are immediately exercisable,
and the price per share for which Common Stock is issuable
upon such conversion or exchange (determined by dividing (i)
the sum (which sum shall constitute the applicable
consideration) of (x) the total amount received or receivable
by the Company as consideration for the issue or sale of such
Convertible Securities, plus (y) the aggregate amount of
additional consideration, if any, payable to the Company upon
the conversion or exchange thereof, by (ii) the total number
of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less
than the Warrant Price in effect immediately prior to the time
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of such issue or sale, then the total maximum number of shares
of Common Stock issuable upon conversion or exchange of all
such Convertible Securities shall be deemed to have been
issued for such price per share as of the date of the issue or
sale of such Convertible Securities and thereafter shall be
deemed to be outstanding for purposes of adjusting the Warrant
Price, provided that (a) except as otherwise provided in
subsection 8(f)(3), no adjustment of the Warrant Price shall
be made upon the actual issuance of such Common Stock upon
conversion or exchange of such Convertible Securities and (b)
no further adjustment of the Warrant Price shall be made by
reason of the issue or sale of Convertible Securities upon
exercise of any Options to purchase any such Convertible
Securities for which adjustments of the Warrant Price have
been made pursuant to the other provisions of subsection 8(f).
(f)(3) Change in Option Price or Conversion Rate.
Upon the happening of any of the following events, namely, if
the purchase price provided for in any Option referred to in
subsection 8(f)(l) hereof, the additional consideration, if
any, payable upon the conversion or exchange of any
Convertible Securities referred to in subsections 8(f)(l) or
8(f)(2), or the rate at which Convertible Securities referred
to in subsections 8(f)(l) or 8(f)(2) are convertible into or
exchangeable for Common Stock shall change at any time
(including, but not limited to, changes under or by reason of
provisions designed to protect against dilution), the Warrant
Price in effect at the time of such event shall forthwith be
readjusted to the Warrant Price which would have been in
effect at such time had such Options or Convertible Securities
still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may
be, at the time initially granted, issued or sold. On the
termination of any Option for which any adjustment was made
pursuant to this subsection 8(f) or any right to convert or
exchange Convertible Securities for which any adjustment was
made pursuant to this subsection 8(f) (including without
limitation upon the redemption or purchase for consideration
of such Convertible Securities by the Company), the Warrant
Price then in effect hereunder shall forthwith be changed to
the Warrant Price which would have been in effect at the time
of such termination had such Option or Convertible Securities,
to the extent outstanding immediately prior to such
termination, never been issued.
(f)(4) Stock Dividends. Subject to the provisions of
this Section 8(f), in case the Company shall declare a
dividend or make any other distribution upon any stock of the
Company (other than the Common Stock) payable in Common Stock,
Options or Convertible Securities, then any Common Stock,
Options or Convertible Securities, as the case may be,
issuable in payment of such dividend or distribution shall be
deemed to have been issued or sold without consideration.
(f)(5) Consideration for Stock. In case any shares of
Common Stock, Options or Convertible Securities shall be
issued or sold for cash, the consideration received therefor
shall be deemed to be the net amount received by the Company
therefor, after deduction therefrom of any expenses incurred
or any underwriting commissions or concessions paid or allowed
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by the Company in connection therewith. In case any shares of
Common Stock, Options or Convertible Securities shall be
issued or sold for a consideration other than cash, the amount
of the consideration other than cash received by the Company
shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the
Company, after deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the
Company in connection therewith. In case any Options shall be
issued in connection with the issue and sale of other
securities of the Company, together comprising one integral
transaction in which no specific consideration is allocated to
such Options by the parties thereto, such Options shall be
deemed to have been issued for such consideration as
determined in good faith by the Board of Directors of the
Company. If Common Stock, Options or Convertible Securities
shall be issued or sold by the Company and, in connection
therewith, other Options or Convertible Securities (the
"Additional Rights") are issued, then the consideration
received or deemed to be received by the Company shall be
reduced by the fair market value of the Additional Rights (as
determined using the Black-Scholes option pricing model or
another method mutually agreed to by the Company and the
Warrantholder). The Board of Directors of the Company shall
respond promptly, in writing, to an inquiry by the
Warrantholder as to the fair market value of the Additional
Rights. In the event that the Board of Directors of the
Company and the Warrantholder are unable to agree upon the
fair market value of the Additional Rights, the Company and
the Warrantholder shall jointly select an appraiser, who is
experienced in such matters. The decision of such appraiser
shall be final and conclusive, and the cost of such appraiser
shall be borne evenly by the Company and the Warrantholder.
(f)(6) Record Date. In case the Company shall take a
record of the holders of its Common Stock for the purpose of
entitling them (i) to receive a dividend or other distribution
payable in Common Stock, Options or Convertible Securities or
(ii) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed
to be the date of the issue or sale of the shares of Common
Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or
the date of the granting of such right of subscription or
purchase, as the case may be.
(f)(7) Treasury Shares. The number of shares of
Common Stock outstanding at any given time shall not include
shares owned or held by or for the account of the Company or
any of its wholly-owned subsidiaries, and the disposition of
any such shares (other than the cancellation or retirement
thereof) shall be considered an issue or sale of Common Stock
for the purpose of this subsection (f).
(f)(8) Nasdaq Limitation. Notwithstanding any other
provision in Section 8(f) to the contrary, if a reduction in
the Warrant Price pursuant to Section 8(f) (other than as set
forth in this clause (f)(8)) would require the Company to
obtain stockholder approval of the transactions contemplated
by the Purchase Agreement (including the issuance of any Other
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Shares (as defined in the Purchase Agreement) and the payment
of any related brokerage fees) pursuant to Nasdaq Marketplace
Rule 4350(i) and such stockholder approval has not been
obtained, (i) the Warrant Price shall be reduced to the
maximum extent that would not require stockholder approval
under such Rule, and (ii) the Company shall use its
commercially reasonable efforts to obtain such stockholder
approval as soon as reasonably practicable including
submitting the Warrant Price adjustment to approval by the
stockholders at the next meeting of stockholders.
(g) Anything herein to the contrary notwithstanding, the
Company shall not be required to make any adjustment of the Warrant Price in the
case of the issuance of (A) capital stock, Options or Convertible Securities
issued to directors, officers, employees or consultants of the Company in
connection with their service as directors of the Company, their employment by
the Company or their retention as consultants by the Company pursuant to an
equity compensation program approved by the Board of Directors of the Company or
the compensation committee of the Board of Directors of the Company, (B) shares
of Common Stock issued upon the conversion or exercise of Options or Convertible
Securities issued prior to the date hereof, (C) securities issued pursuant to
that certain Purchase Agreement dated December 18, 2003, among the Company and
the Investors named therein (the "Purchase Agreement") and securities issued
upon the exercise or conversion of those securities, (D) up to four million
shares of Common Stock, including shares of Common Stock underlying Options or
Convertible Securities, issued to creditors receiving shares of Common Stock as
described in Schedule 4.3 to the Purchase Agreement in full satisfaction of the
obligations owed to such creditors by the Company, and (E) shares of Common
Stock issued or issuable by reason of a dividend, stock split or other
distribution on shares of Common Stock (but only to the extent that such a
dividend, split or distribution results in an adjustment in the Warrant Price
pursuant to the other provisions of this Warrant) (collectively, "Excluded
Issuances").
(h) Upon any adjustment to the Warrant Price pursuant to
Section 8(f) above, the number of Warrant Shares purchasable hereunder shall be
adjusted by multiplying such number by a fraction, the numerator of which shall
be the Warrant Price in effect immediately prior to such adjustment and the
denominator of which shall be the Warrant Price in effect immediately
thereafter.
Section 9. Fractional Interest. The Company shall not be required to
issue fractions of Warrant Shares upon the exercise of this Warrant. If any
fractional share of Common Stock would, except for the provisions of the first
sentence of this Section 9, be deliverable upon such exercise, the Company, in
lieu of delivering such fractional share, shall pay to the exercising
Warrantholder an amount in cash equal to the Market Price of such fractional
share of Common Stock on the date of exercise.
Section 10. Extension of Expiration Date. If the Company fails to cause
any Registration Statement covering Registrable Securities (unless otherwise
defined herein, capitalized terms are as defined in the Registration Rights
Agreement relating to the Warrant Shares (the "Registration Rights Agreement"))
to be declared effective prior to the applicable dates set forth therein, or if
any of the events specified in Section 2(c)(ii) of the Registration Rights
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Agreement occurs, and the Blackout Period (whether alone, or in combination with
any other Blackout Period) continues for more than 60 days in any 12 month
period, or for more than a total of 90 days, then the Expiration Date of this
Warrant shall be extended one day for each day beyond the 60-day or 90-day
limits, as the case may be, that the Blackout Period continues.
Section 11. Benefits. Nothing in this Warrant shall be construed to
give any person, firm or corporation (other than the Company and the
Warrantholder) any legal or equitable right, remedy or claim, it being agreed
that this Warrant shall be for the sole and exclusive benefit of the Company and
the Warrantholder.
Section 12. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Failure to give such notice to the Warrantholder or any
defect therein shall not affect the legality or validity of the subject
adjustment. In addition, the Company shall promptly give written notice to the
Warrantholder as specified above in the event that the Company determines to
make a rights offering to its stockholders.
Section 13. Identity of Transfer Agent. The Transfer Agent for the
Common Stock is American Stock Transfer & Trust Company. Upon the appointment of
any subsequent transfer agent for the Common Stock or other shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrant, the Company will mail to the Warrantholder a
statement setting forth the name and address of such transfer agent.
Section 14. Notices. Unless otherwise provided, any notice required or
permitted under this Warrant shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or facsimile, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one business day after
delivery to such carrier. All notices shall be addressed as follows: if to the
Warrantholder, at its address as set forth in the Company's books and records
and, if to the Company, at the address as follows, or at such other address as
the Warrantholder or the Company may designate by ten days' advance written
notice to the other:
If to the Company:
GoAmerica, Inc.
433 Hackensack Avenue
Hackensack, New Jersey 07601
Attention: Chief Executive Officer
Fax: (201) 996-1772
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With a copy to:
Hale and Dorr LLP
650 College Road East
Princeton, NJ 08540
Attention: Richard Mattessich, Esq.
Fax: (609) 750-7700
Section 15. Registration Rights. The initial Warrantholder is entitled
to the benefit of certain registration rights with respect to the shares of
Common Stock issuable upon the exercise of this Warrant as provided in the
Registration Rights Agreement, and any subsequent Warrantholder may be entitled
to such rights.
Section 16. Successors. All the covenants and provisions hereof by or
for the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 17. Governing Law; Consent to Jurisdiction. This Warrant shall
be governed by, and construed in accordance with, the internal laws of the State
of New York, without reference to the choice of law provisions thereof. The
Company and, by accepting this Warrant, the Warrantholder, each irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York
located in New York County and the United States District Court for the Southern
District of New York for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Warrant and the transactions contemplated
hereby. Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the world by the same
methods as are specified for the giving of notices under this Warrant. The
Company and, by accepting this Warrant, the Warrantholder, each irrevocably
consents to the jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. The Company and, by
accepting this Warrant, the Warrantholder, each irrevocably waives any objection
to the laying of venue of any such suit, action or proceeding brought in such
courts and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. EACH OF THE
COMPANY AND, BY ITS ACCEPTANCE HEREOF, THE WARRANTHOLDER HEREBY WAIVES ANY RIGHT
TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS WARRANT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
Section 18. Call Provision. Notwithstanding any other provision
contained herein to the contrary, in the event that the last reported sale price
of a share of Common Stock as traded on the Nasdaq (or such other exchange or
stock market on which the Common Stock may then be listed or quoted) equals or
exceeds $0.60 (appropriately adjusted for any stock split, reverse stock split,
stock dividend or other reclassification or combination of the Common Stock
occurring after the date hereof) for five (5) consecutive trading days
commencing after the Registration Statement (as defined in the Registration
Rights Agreement) has been declared effective, the Company, upon thirty (30)
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days prior written notice (the "Notice Period") given to the Warrantholder
within three business days immediately following the end of such five (5)
trading day period, may demand that the Warrantholder exercise its exercise
rights hereunder, and the Warrantholder must exercise its rights hereunder prior
to the end of the Notice Period; provided that (i) the Company simultaneously
gives a similar notice to all holders of Company Warrants (as defined below) and
(ii) all of the shares of Common Stock issuable hereunder either (A) are
registered pursuant to an effective Registration Statement (as defined in the
Registration Rights Agreement) which has not been suspended and for which no
stop order is in effect, and pursuant to which the Warrantholder is able to sell
such shares of Common Stock at all times during the Notice Period or (B) no
longer constitute Registrable Securities (as defined in the Registration Rights
Agreement). If such exercise is not made or if only a partial exercise is made,
any and all rights to further exercise the Warrant shall cease upon the
expiration of the Notice Period. Notwithstanding any such notice by the Company,
the Warrantholder shall have the right to exercise this Warrant prior to the end
of the Notice Period.
Section 19. No Rights as Stockholder. Prior to the exercise of this
Warrant, the Warrantholder shall not have or exercise any rights as a
stockholder of the Company by virtue of its ownership of this Warrant.
Section 20. Amendment; Waiver. This Warrant is one of a series of
Warrants of like tenor issued by the Company pursuant to the Purchase Agreement
and initially covering an aggregate of 1,353,333 shares of Common Stock
(collectively, the "Company Warrants"). Any term of this Warrant may be amended
or waived (including the adjustment provisions included in Section 8 of this
Warrant) upon the written consent of the Company and the holders of Company
Warrants representing at least 50% of the number of shares of Common Stock then
subject to all outstanding Company Warrants (the "Majority Holders"); provided,
that (x) any such amendment or waiver must apply to all Company Warrants; and
(y) the number of Warrant Shares subject to this Warrant, the Warrant Price and
the Expiration Date may not be amended, and the right to exercise this Warrant
may not be altered or waived, without the written consent of the Warrantholder.
The foregoing notwithstanding, no amendment shall be made to this Warrant which
affects any particular holder of Company Warrants in a manner different than any
other holder of Company Warrants without the prior written consent of such
holder of Company Warrants.
Section 21. Limitation on Exercise. The Company shall not effect the
exercise of this Warrant, and no Person (as defined below) who is a holder of
this Warrant shall have the right to exercise this Warrant, to the extent that
after giving effect to such exercise, such Person (together with such Person's
affiliates) would beneficially own in excess of 4.99% of the shares of the
Common Stock outstanding immediately after giving effect to such exercise. For
purposes of the foregoing sentence, the aggregate number of shares of Common
Stock beneficially owned by such Person and its affiliates shall include the
number of shares of Common Stock issuable upon exercise of this Warrant with
respect to which the determination of such sentence is being made, but shall
exclude shares of Common Stock which would be issuable upon (i) exercise of the
remaining, unexercised portion of this Warrant beneficially owned by such Person
and its affiliates and (ii) exercise or conversion of the unexercised or
unconverted portion of any other securities of the Company beneficially owned by
such Person and its affiliates (including, without limitation, any debentures,
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convertible notes or convertible preferred stock or warrants) subject to a
limitation on conversion or exercise analogous to the limitation contained
herein. Except as set forth in the preceding sentence, for purposes of this
paragraph, beneficial ownership shall be calculated in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this
Warrant, in determining the number of outstanding shares of Common Stock, a
holder may rely on the number of outstanding shares of Common Stock as reflected
in (1) the Company's most recent Form 10-Q, Form 10-K or other public filing
with the Securities and Exchange Commission, as the case may be, (2) a more
recent public announcement by the Company or (3) any other notice by the Company
or its Transfer Agent setting forth the number of shares of Common Stock
outstanding. For any reason at any time, upon the written or oral request of the
holder of this Warrant, the Company shall within two Business Days confirm
orally and in writing to the holder of this Warrant the number of shares of
Common Stock then outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the conversion or
exercise of securities of the Company, including the Company Warrants, by the
holder of this Warrant and its affiliates since the date as of which such number
of outstanding shares of Common Stock was reported.
Section 22. Warrantholder Representations. The Warrantholder hereby
represents and warrants as follows:
(a) Purchase Entirely for Own Account. The shares of Common
Stock to be received by the Warrantholder hereunder will be acquired for the
Warrantholder's own account, not as nominee or agent, and not with a view to the
resale or distribution of any part thereof in violation of the Securities Act,
and the Warrantholder has no present intention of selling, granting any
participation in, or otherwise distributing the same in violation of the
Securities Act; provided, however, that by making the representations herein,
the Warrantholder does not agree to hold any of the Warrant Shares for any
minimum or other specific term and reserves the right to dispose of the Warrant
Shares at any time in accordance with or pursuant to a registration statement or
an exemption under the Securities Act.
(b) Investment Experience. The Warrantholder acknowledges that
it can bear the economic risk and complete loss of its investment in the Warrant
Shares and has such knowledge and experience in financial or business matters
that it is capable of evaluating the merits and risks of the investment
contemplated hereby.
(c) Disclosure of Information. The Warrantholder has had an
opportunity to receive all information related to the Company requested by it
and to ask questions of and receive answers from the Company regarding the
Company, its business and the terms and conditions of the offering of the
Warrant Shares. The Warrantholder acknowledges receipt of copies of the SEC
Filings (as defined in the Purchase Agreement). Neither such inquiries nor any
other due diligence investigation conducted by the Warrantholder shall modify,
amend or affect the Warrantholder's right to rely on the Company's
representations and warranties contained in this Agreement.
(d) Restricted Securities. The Warrantholder understands that
the Warrant Shares are characterized as "restricted securities" under the U.S.
federal securities laws inasmuch as they are being acquired from the Company in
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a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances.
(e) Accredited Investor. The Warrantholder is an accredited
investor as defined in Rule 501(a) of Regulation D, as amended, under the
Securities Act.
(f) No General Solicitation. The Warrantholder did not learn
of the investment in the Warrant or the Warrant Shares as a result of any public
advertising or general solicitation.
Section 23. Section Headings. The section headings in this Warrant are
for the convenience of the Company and the Warrantholder and in no way alter,
modify, amend, limit or restrict the provisions hereof.
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IN WITNESS WHEREOF, each of the Company and the Warrantholder has
caused this Warrant to be duly executed, as of the 18th day of December, 2003.
GOAMERICA, INC.
By:
----------------------------
Name:
Title:
Warrantholder
--------------------------------
Derek Caldwell
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APPENDIX A
GOAMERICA, INC.
WARRANT EXERCISE FORM
To GoAmerica, Inc.:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant ("Warrant") for, and to purchase
thereunder by the payment of the Warrant Price and surrender of the Warrant,
_______________ shares of Common Stock ("Warrant Shares") provided for therein,
and requests that certificates for the Warrant Shares be issued as follows:
-------------------------------
Name
--------------------------------
Address
--------------------------------
--------------------------------
Federal Tax ID or Social Security No.
and delivered by (certified mail to the above address, or
(electronically (provide DWAC Instructions:___________________),
or
(other (specify): __________________________).
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares purchasable upon exercise of this Warrant be registered in
the name of the undersigned Warrantholder or the undersigned's Assignee as below
indicated and delivered to the address stated below.
Dated: ___________________, ____
Note: The signature must correspond with Signature:
the name of the Warrantholder as written ---------------------
on the first page of the Warrant in every
particular, without alteration or enlargement -------------------------------
or any change whatever, unless the Warrant Name (please print)
has been assigned. ------------------------------
------------------------------
Address
------------------------------
Federal Identification or
Social Security No.
Assignee:
-------------------------------
-------------------------------
-------------------------------
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