Exhibit 99.2
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
STATEMENT IS NOT REQUIRED UNDER THE SECURITIES ACT AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER OR UNDER APPLICABLE STATE SECURITIES LAWS.
WARRANT CERTIFICATE
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To Purchase ________________ Shares of Common Stock of:
ACCESS WORLDWIDE COMMUNICATIONS, INC.
August 31, 2005
THIS IS TO CERTIFY THAT, for value received, ___________________________
(the "Holder") is entitled to purchase from Access Worldwide Communications,
Inc., a Delaware corporation (the "Company"), _____________________________
(_______________) shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"), on the terms and conditions hereinafter set forth.
I. Grant of Warrant
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1.1 Grant and Vesting. The Company hereby grants to the Holder a
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warrant to purchase up to __________ shares of Common Stock (this "Warrant"), as
adjusted as provided herein, at a purchase price equal to seventy-five ($0.75)
cents per share of Common Stock (the "Exercise Price"). This Warrant shall vest
(the "Vesting Date") as to all ______________ shares of Common Stock upon
completion of the following two events: (i) Funding of the principal sum of
$________ to the Company pursuant to the terms of that certain Convertible
Promissory Note dated as of the date hereof (the "Note"), and (ii) the
Conversion Event, as defined in the Note. The shares of Common Stock, or other
securities for which this Warrant may be exercised as a result of transactions
contemplated by Article II, are referred to as the "Warrant Shares."
Notwithstanding the foregoing, should Holder become entitled to the
Reimbursement Amount as set forth in the Note, then this Warrant shall become
null and void, and Holder shall have no right to exercise this Warrant.
1.2 Exercise Period. This Warrant shall be exercisable commencing on
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the Vesting Date and continue to be exercisable until 5:00 p.m., Eastern
Standard Time, on the date that is ten (10) years from the Effective Date (the
"Exercise Period").
1.3 Shares To Be Issued; Reservation of Shares. The Company
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covenants and agrees that (a) all of the securities issuable upon the exercise
of this Warrant in accordance with the terms hereof will, upon issuance in
accordance with the terms hereof and payment of the Exercise Price therefore, be
duly authorized, validly issued and outstanding, fully paid and non-assessable
shares of Common Stock, and (b) the Company will cause during the Exercise
Period, there to be authorized and reserved a sufficient number of shares of
Common Stock to provide for the exercise of this Warrant in full.
II. Adjustments to Warrant
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2.1 Stock Splits and Combinations. If the Company shall combine all
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of its outstanding shares of Common Stock into a smaller number of shares, the
number of Warrant Shares purchaseable under this Warrant shall be
proportionately decreased, as of the effective date of such combination, so that
the Holder of this Warrant, if exercised on or after that date, shall be
entitled to receive the number and kind of Warrant Shares which the Holder of
this Warrant would have owned and been entitled to receive as a result of the
combination had the Warrant been exercised immediately prior to that date. If
the Company shall subdivide all of its outstanding shares of Common Stock, the
number of Warrant Shares purchasable under the Warrant shall be proportionally
increased as of the effective date of such subdivision so that the Holder of
this Warrant, if exercised on or after that date, shall be entitled to receive
the number and kind of Warrant Shares which the Holder of this Warrant would
have owned and been entitled to receive as a result of the subdivision had the
Warrant been exercised immediately prior to that date.
2.2 Stock Dividends and Distributions. If the Company shall fix a
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record date for the holders of its Common Stock entitled to receive a dividend
or other distribution payable in additional shares of Common Stock, then the
number of Warrant Shares purchaseable under this Warrant shall be
proportionately increased as of the time of such issuance, or in the event such
record date is fixed, as of the close of business on such record date so that
the Holder of this Warrant, if exercised after that date, shall be entitled to
receive the number and kind of Warrant Shares and additional shares of Common
Stock of the Company which the Holder of this Warrant would have owned and been
entitled to receive as a result of the dividend or distribution had the Warrant
been exercised immediately prior to that date.
2.3 Other Dividends and Distributions. If the Company shall fix a
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record date for the holders of Common Stock entitled to receive a dividend or
other distribution payable in securities of the Company other than shares of
Common Stock, then lawful and adequate provision shall be made so that the
Holder of this Warrant shall be entitled to receive upon exercise of this
Warrant, in addition to the number of Warrant Shares immediately theretofore
issuable upon exercise of this Warrant, the kind and number of securities of the
Company which the Holder would have owned and been entitled to receive had this
Warrant been exercised immediately prior to that date.
2.4 Reclassification, Exchange and Substitution. If the Common Stock
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is changed into the same or a different number of shares of any class or classes
of stock, whether by recapitalization, reclassification or otherwise (other than
by a subdivision or combination of shares or stock dividend or a reorganization,
merger, consolidation or sale of assets provided for elsewhere in this Article
II), then the Holder of this Warrant shall be entitled to receive upon exercise
of this Warrant, in lieu of the Warrant Shares immediately theretofore issuable
upon exercise of this Warrant, the kind and amount of stock and other securities
and property receivable upon such recapitalization, reclassification or other
change, by the holders of the number of shares of Common Stock for which the
Warrant could have been exercised immediately prior to such recapitalization,
reclassification or other change (in any event, subject to further anti-dilution
protection as provided in this Article II).
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2.5 Reorganizations, Mergers, Consolidations or Sales of Assets. If
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any of the following transactions (each, a "Special Transaction") shall become
effective: (a) a capital reorganization, share exchange or exchange offer (other
than a recapitalization, subdivision, combination, reclassification or exchange
of shares provided for elsewhere in this Article II), (b) a consolidation or
merger of the Company with and into another entity, or (c) a sale or conveyance
of all or substantially all of the Company's assets, then as a condition of any
Special Transaction, lawful and adequate provision shall be made so that the
Holder of the Warrant shall thereafter have the right to purchase and receive
upon exercise of this Warrant, in lieu of the Warrant Shares immediately
theretofore issuable upon exercise of this Warrant, other securities, cash or
other assets as may be issued or payable in and pursuant to the terms of such
Special Transaction to the holders of shares for which this Warrant could have
been exercised immediately prior to such Special Transaction.
2.6 Liquidation. If the Company shall, at any time prior to the end
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of the Exercise Period, dissolve, liquidate or wind up its affairs, the Holder
shall have the right, but not the obligation, to exercise this Warrant. Upon
such exercise, the Holder shall have the right to receive, in lieu of the shares
of Common Stock that the Holder otherwise would have been entitled to receive
upon such exercise, the same kind and amount of assets as would have been
issued, distributed or paid to the Holder upon any such dissolution, liquidation
or winding up with respect to such shares of Common Stock had the Holder been
the holder of record of such shares of Common Stock receivable upon exercise of
this Warrant on the date for determining those entitled to receive any such
distribution. Notwithstanding the foregoing, should the Company dissolve,
liquidate or wind up its affairs prior to the Vesting date of this Warrant, then
this Warrant shall become null and void.
2.7 Notice. Whenever this Warrant or the number of Warrant Shares is
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to be adjusted as provided herein, the Company shall forthwith as soon as
reasonably practicable, cause to be sent to the Holder a notice stating in
reasonable detail the relevant facts and any resulting adjustments and the
calculation thereof.
2.8 Fractional Interests. The Company shall not be required to issue
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fractions of shares of Common Stock upon the exercise of this Warrant. If any
fraction of a share of Common Stock would be issuable upon the exercise of this
Warrant, the Company shall, upon such issuance, purchase such fraction for an
amount in cash equal to the current value of such fraction, computed on the
basis of the last reported closing price of the Common Stock on the securities
exchange or quotation system on which the shares of Common Stock are then listed
or traded, as the case may be, if any, on the last business day prior to the
date of exercise upon which such a sale shall have been effected, or, if the
Common Stock is not so listed or traded on an exchange or quotation system, as
the Board of Directors of the Company may in good faith determine.
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2.9 Effect of Alternate Securities. If at any time, as a result of
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an adjustment made pursuant to this Article II, the Holder of this Warrant shall
thereafter become entitled to receive any securities of the Company other than
shares of Common Stock, then the number of such other securities receivable upon
exercise of this Warrant shall be subject to adjustment from time to time on
terms as nearly equivalent as practicable to the provisions with respect to
shares of Common Stock contained in this Article II.
2.10 Successive Application. The provisions of this Article II shall
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apply from time to time to successive events covered by this Article II. Upon
the occurrence of any event contemplated by this Article II, all references to
Common Stock, to the Company and to other defined terms shall be equitably
adjusted to protect the interests of the Holder.
III. Exercise
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3.1 Exercise of Warrant.
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(a) The Holder may exercise this Warrant by (i) surrendering
this Warrant Certificate with the form of exercise notice attached hereto as
Exhibit "A" duly executed by the Holder, and (ii) making payment to the Company
of the aggregate Exercise Price for the applicable Warrant Shares in cash or by
certified check or wire transfer of immediately available funds to an account
designated by the Company. Upon any partial exercise of this Warrant, the
Company shall issue to the Holder, for its surrendered Warrant Certificate, a
replacement Warrant Certificate identical in all respects to this Warrant
Certificate, except that the number of Warrant Shares shall be reduced
accordingly.
(b) Each person in whose name any Warrant Share certificate is
issued upon exercise of this Warrant shall for all purposes be deemed to have
become the holder of record of the Warrant Shares for which this Warrant was
exercised as of the date of exercise. Certificates for the Warrant Shares so
purchased, representing the aggregate number of shares specified in the form of
exercise notice, shall be delivered to the holder hereof within a reasonable
time.
3.2 Issuance of Warrant Shares. The Warrant Shares purchased shall
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be issued to the Holder exercising this Warrant as soon as practicable after
that date on which all actions and payments required to be taken or made by the
Holder hereunder shall have been so taken or made. Certificates for the Warrant
Shares so purchased shall be delivered to the Holder as soon as reasonably
practicable after this Warrant is so exercised.
IV. Rights of the Holder
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Except as provided herein, the Holder shall not, solely by virtue of
this Warrant and prior to the issuance of the Warrant Shares upon due exercise
hereof, be entitled to any rights as a shareholder of the Company. No provision
of this Warrant, in the absence of affirmative action by the holder hereof to
purchase Warrant Shares, and no mere enumeration herein of the rights or
privileges of the holder hereof, shall give rise to any liability of such holder
for the Exercise Price or as a shareholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
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V. Loss
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Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
immediately execute and deliver a new Warrant of like tenor and date.
VI. Representations of the Holder
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The Holder further understands that the Holder of this Warrant
represents to the Company that it is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire this Warrant and the
shares issuable upon exercise of this Warrant. The holder of this Warrant
further represents that it is acquiring this Warrant and the right to acquire
the shares issuable upon exercise of this Warrant for investment purposes only,
for its own account only and not with a view to, or for resale in connection
with, any "distribution" thereof within the meaning of the Securities Act. The
holder of this Warrant acknowledges and understands that the shares issuable
upon exercise of this Warrant will constitute "restricted securities" under the
Securities Act and will not have been registered under the Securities Act in
reliance upon a specific exemption therefrom, which exemption depends upon,
among other things, the bona fide nature of the holder's investment intent as
expressed herein. The certificates representing the Warrant Shares shall bear a
legend substantially similar to the following:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act") or under applicable state securities laws, and may not be
offered or sold except (1) pursuant to an effective registration
statement under the Act or (2) upon the delivery by the holder
to the Company of an opinion of counsel reasonably satisfactory
to the Company that such registration statement is not required
under the Securities Act and the rules and regulations
promulgated thereunder or under applicable state securities
laws."
VII. Registration Rights
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Within six (6) months of the Conversion Event (as defined in the Note),
or as soon as practicable thereafter, the Company shall cause to be prepared and
filed with the Securities and Exchange Commission (the "Commission"), and cause
to become effective no later than sixty (60) days after the date of filing, or
as soon as practicable thereafter, (the "Effective Date"), a registration
statement on Form S-1 (or such other available registration statement form that
is eligible for use) (as may be amended from time to time, the "Registration
Statement") and such other documents, as may be necessary, in the opinion of
counsel for the Company, so as to permit a public offering and sale by the
Holder of the Warrant Shares under the Securities Act. Notwithstanding the
foregoing to the contrary, the Company shall not be required to file the
Registration Statement within thirty (30) days of the date the Company is
required to file its annual report on Form 10-K with the Securities and Exchange
Commission. All expenses incurred in connection with the registration of the
Warrant Shares, including without limitation, all blue sky registration and
filing fees, legal fees, accounting fees, printing expenses, other expenses and
fees of experts used in connection with such registration and any fees and
expenses incidental to any post-effective amendment to the Registration
Statement, shall be borne and paid by the Company, excluding Holder's legal fees
relating to the Warrants and commissions related to sales of the Warrant Shares.
The Company shall take all reasonable efforts to keep such registration
effective for a period of not less than two (2) years after the Effective Date,
and shall take all reasonable efforts to cause the Warrant Shares at all times
during such period to be freely tradable under the Registration Statement,
except as may be required under the Federal Securities laws, and shall take such
other actions as may be necessary or advisable to enable the Holder to
consummate the public sale of the Warrant Shares by the Holder under the
Registration Statement.
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VIII. Miscellaneous
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8.1 Assignment. This Warrant and the rights, obligations and duties
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of the Company or the Holders hereunder shall not be assignable or otherwise
transferable by either party; provided, however, that in the event that Company
is acquired by another entity and becomes a wholly-owned subsidiary of that
entity, then all references herein to Company shall also be applicable to its
stockholder and such stockholder shall be bound by the terms hereof as if it
were the Company.
8.2 Modification. No term or provision contained herein may be
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modified, amended or waived except by written agreement or consent signed by the
party to be bound thereby.
8.3 Binding Effect and Benefit. This Warrant shall inure to the
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benefit of, and shall be binding upon, the parties hereto, their heirs,
executors, administrators, personal representatives, successors in interest and
permitted assigns.
8.4 Further Assurances. Company and Holder agree that from time to
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time hereafter, upon request, each party will, at such party's sole expense,
execute and deliver such other instruments and documents and take such further
action as may be reasonably necessary to carry out the intent of this Warrant.
8.5 Governing Law; Waiver of Jury Trial. This Warrant shall be
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interpreted, and the rights and liabilities of the parties hereto determined, in
accordance with the internal laws (as opposed to conflicts of law provisions) of
the State of Delaware. As part of the consideration for new value this day
received, the Holder hereby consents to the jurisdiction of any state or federal
court located within Wilmington, Delaware. Each of the Company and the Holder
hereby irrevocably and unconditionally waives trial by jury in any suit or
proceeding arising out of or related to this Warrant.
8.6 Incorporation by Reference. All exhibits and documents referred
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to in this Warrant shall be deemed incorporated herein by any reference thereto
as if fully set out herein.
8.7 Headings and Captions. Subject headings and captions are
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included for convenience purposes only and shall not affect the interpretation
of this agreement.
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8.8 Notice. All notices, requests, demands and other communications
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permitted or required hereunder shall be in writing, and either (i) delivered in
person, (ii) sent by express mail or other overnight delivery service providing
receipt of delivery, (iii) mailed by certified or registered mail, postage
prepaid, return receipt requested or (iv) sent by telex, telegraph or other
facsimile transmission as follows:
If to Company addressed Access Worldwide Communications, Inc.
or delivered in 4950 Communications Avenue, Suite 300
person to: Boca Raton, Florida 33431
Attention: Richard Lyew
Fax:561-226-5021
With a copy to: Access Worldwide Communications, Inc.
4950 Communications Avenue, Suite 300
Boca Raton, Florida 33431
Attention: Mark Wright
Fax: 800-589-1587
If to the Holder, _____________________________________
addressed or delivered _____________________________________
in person to: _____________________________________
_____________________________________
or to such other address as either party may designate by notice in accordance
with this Section.
Any such notice or communication, if given or made by prepaid,
registered or certified mail or by recorded express delivery, shall be deemed to
have been made when actually received.
8.9 Severability. If any portion of this Warrant is held invalid,
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illegal or unenforceable, such determination shall not impair the enforceability
of the remaining terms and provisions herein, which may remain effective, and to
this end this Warrant is declared to be severable.
8.10 Waiver. No waiver of a default, breach or other violation of any
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provision of this Warrant shall operate or be construed as a waiver of any
subsequent default, breach or other violation or limit or restrict any right or
remedy otherwise available. No delay or omission on the part of the Holder to
exercise any right or power arising by reason of a default shall impair any such
right or power or prevent its exercise at any time during the continuance
thereof.
8.11 Gender and Pronouns. Throughout this Warrant, the masculine
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shall include the feminine and neuter and the singular shall include the plural
and vice versa as the context requires.
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8.12 Entire Agreement. This Warrant constitutes the entire agreement
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of the parties and supersedes any and all other prior agreements, oral or
written, with respect to the subject matter contained herein.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and delivered as of the _____ day of August, 2005 (the "Effective
Date").
ACCESS WORLDWIDE COMMUNICATIONS, INC.
By:
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Mark Wright
General Counsel
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EXHIBIT A
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EXERCISE NOTICE
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for the purchase of the number of shares of Common Stock
of Access Worldwide Communications, Inc. as is set forth below, and herewith
makes payment therefor, all at the price and on the terms and conditions
specified in the attached Warrant Certificate and requests that certificates for
the shares of Common Stock hereby purchased (and any securities or other
property issuable upon such exercise) be issued in the name of and delivered to
the person specified below whose address is set forth below, and, if such shares
of Common Stock shall not include all of the shares of Common Stock now and
hereafter issuable as provided in the attached Warrant Certificate, then Access
Worldwide Communications, Inc. shall, at its own expense, promptly issue to the
undersigned a new Warrant Certificate of like tenor and date for the balance of
the shares of Common Stock issuable thereunder.
Date: __________________________________________________________________________
Amount of Shares Purchased: ____________________________________________________
Aggregate Purchase Price: $____________________________________________________
Printed Name of Registered Holder: _____________________________________________
Signature of Registered Holder: ________________________________________________
NOTICE: The signature on this Exercise Notice must correspond with the
name as written upon the face of the attached Warrant
Certificate in every particular, without alteration or
enlargement or any change whatsoever.
Stock Certificates to be issued and registered in the following name, and
delivered to the following address:
______________________________________________________
(Name)
______________________________________________________
(Street Address)
______________________________________________________
(City) (State) (Zip Code)