Exhibit 4.11
Common Stock Purchase Warrant
THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED OR ANY APPLICABLE STATE SECURITIES LAWS.
MULTI-LINK TELECOMMUNICATIONS, INC.
COMMON STOCK PURCHASE WARRANT
June 30, 2000 Certificate Number 1
THIS IS TO CERTIFY that GLENAYRE TECHNOLOGIES, INC., and its transferees,
successors and assigns (the "Warrantholder"), for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, is
entitled to purchase from MULTI-LINK TELECOMMUNICATIONS, INC., a Colorado
corporation (the "Company"), at an initial Exercise Price of $14.3625 per share,
subject to adjustment as provided herein, One Hundred Thousand (100,000) shares
(the "Aggregate Number") of the fully paid and nonassessable Common Stock. The
Aggregate Number is subject to adjustment or reduction as set forth in Section 4
of this Common Stock Purchase Warrant (this "Warrant").
SECTION 1. Definitions. As used herein, in addition to the terms defined
elsewhere herein, the following terms shall have the following meanings:
"Affiliate" means, with respect to any Person, any other Person (1)
directly or indirectly controlling or controlled by or under direct or indirect
common control with, such Person or (2) directly or indirectly owning or holding
25% or more of the equity interest in such Person; provided, that in no event
shall the Warrantholder (or any Affiliate of the Warrantholder) be deemed to be
an Affiliate of the Company. For purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the term "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Number" has the meaning assigned thereto in the first paragraph
hereof.
"Articles of Incorporation" means the Articles of Incorporation of the
Company, as amended or supplemented from time to time.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in Colorado are authorized or required by law or
executive order to close.
"Commission" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means collectively (1) the no par value common stock of the
Company, as described in the Articles of Incorporation, (2) any other class of
capital stock hereinafter authorized having the right to share in distributions
either of earnings or assets without limit as to amount or percentage and (3)
any other capital stock into which such Common Stock is reclassified or
reconstituted.
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"Convertible Securities" means evidences of indebtedness, shares of stock
or other securities which, directly or indirectly, are exchangeable for or
exercisable or convertible into Common Stock.
"Current Market Price" shall refer to the per share value of the Common
Stock and shall mean, with respect to the value of a share of Common Stock on
any Business Day, (1)(A) if the Common Stock is Publicly Traded at the time of
determination, the average of the closing prices on such day of the Common Stock
on all domestic securities exchanges on which the Common Stock is then listed,
or (B) if there have been no sales on any such exchange on such day, the average
of the highest bid and lowest asked prices on all such exchanges at the end of
such day or (C) if on any such day the Common Stock is not so listed, the
average of the representative bid and asked prices quoted on NASDAQ as of 4:00
P.M. New York time, on such day, or (D) if on any day such security is not
quoted on NASDAQ, 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, in each
such case averaged (using the price determined under clause (A), (B), (C) or (D)
for a particular day) over a period of 20 days consisting of the day as of which
"Current Market Price" is being determined and the 19 consecutive Business Days
prior to such day; or (2) if the Common Stock is not Publicly Traded at the time
of determination, the value determined in good faith by the Board of Directors
of the Company based on the per share price for which all the outstanding shares
of Common Stock (on a Fully Diluted basis, assuming receipt of applicable
consideration for any conversion, exchange or exercise of any Convertible
Securities or Options which are exchangeable for or convertible or exercisable
into Common Stock unless they are Out of the Money) could be sold in an
arm's-length transaction to a third party which is not an Affiliate, treating
the Company and its Subsidiaries as a going concern and assuming such sales were
between a willing buyer and a willing seller and without regard to any discount
for minority interest, restrictions on transfer or lack of marketability.
"Exercise Price" means the price per share of Common Stock (or price per
share of Other Securities) at which the Common Stock (or Other Securities) are
purchasable pursuant to this Warrant. The Exercise Price is subject to
adjustment as provided herein.
"Expiration Date" means the fifth anniversary of the date hereof.
"Fully Diluted" means, with respect to the Common Stock, as of a particular
time the total outstanding shares of Common Stock as of such time, determined by
treating all outstanding Options, warrants and other rights for the purchase or
other acquisition of shares of Common Stock (whether or not then vested and
exercisable and whether or not Out of the Money) as having been exercised and by
treating all outstanding securities directly or indirectly convertible into or
exchangeable for shares of Common Stock (whether or not then exercisable or
convertible and whether or not Out of the Money) as having been so converted or
exchanged.
"Option" shall mean any warrant, option or other right to subscribe for or
purchase a specified security of the Company.
"Other Securities" shall mean any stock and other securities of the Company
or any other Person (corporate or otherwise) which the Warrantholder at any time
shall be entitled to receive, upon the exercise of this Warrant or pursuant to
Section 4 hereof, in lieu of or in addition to Common Stock.
"Out of the Money" means (1) in the case of an Option, that the Current
Market Price of the shares of Common Stock, which the holder thereof is entitled
to purchase or subscribe for is less than the exercise price of such Option and
(2) in the case of a Convertible Security, that the quotient resulting from
dividing the face value of such Convertible Security by the number of shares of
Common Stock into or for which such Convertible Security is exercisable,
convertible or exchangeable is greater than the Current Market Price of a share
of Common Stock.
"Principal Office" means the Company's principal office as set forth in
Section 14(a) hereof or such other principal office of the Company in the United
States of America the address of which first shall have been set forth in a
notice to the Warrantholder.
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"Publicly Traded" means, with respect to any security, that such security
is (1) listed on a domestic securities exchange, (2) quoted on NASDAQ or (3)
traded in the domestic over-the-counter market, which trades are reported by the
National Quotation Bureau, Incorporated.
"Securities Purchase Agreement" means the Securities Purchase Agreement,
dated as of the date hereof, between the Warrantholder and the Company.
"Warrant Shares" means (1) the shares of Common Stock that have been issued
upon exercise of this Warrant in accordance with its terms and, (2) all other
shares of the Company's capital stock issued with respect to such shares by way
of stock dividend, stock split or other reclassification or in connection with
any merger, consolidation, recapitalization or other reorganization affecting
the Company's capital stock, or acquired by way of any rights offering or
similar offering made in respect of the capital stock referred to in this clause
(2) or the foregoing clause (1).
SECTION 2. Exercise Price. The initial Exercise Price is $14.3625 and is
subject to adjustment pursuant to Section 4 in connection with an adjustment of
the Aggregate Number.
SECTION 3. Exercise.
(a) Right to Exercise; Exercise Amount. On or before the Expiration Date,
the Warrantholder, in accordance with the terms hereof, may exercise this
Warrant in whole or in part at any time by delivering this Warrant to the
Company during normal business hours on any Business Day at the Principal
Office, together with an Election to Purchase, in the form attached hereto as
Exhibit A (the "Election to Purchase"), duly executed, and payment of the
Exercise Price for each share to be purchased (with the total number of shares
to be purchased being referred to as the "Exercise Amount") as specified in the
Election to Purchase. If the Expiration Date is not a Business Day, then this
Warrant may be exercised on the next succeeding Business Day. The aggregate
Exercise Price (the "Aggregate Exercise Price") to be paid for the Exercise
Amount shall equal the product of (1) the Exercise Amount multiplied by (2) the
Exercise Price.
(b) Payment of Aggregate Exercise Price. Payment of the Aggregate Exercise
Price shall be made to the Company in cash or other immediately available funds.
(c) Issuance of Shares of Common Stock. Upon receipt by the Company of this
Warrant at the Principal Office in proper form for exercise, and accompanied by
payment of the Aggregate Exercise Price as aforesaid, the Warrantholder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that certificates representing such shares of
Common Stock may not then be actually delivered. Upon such surrender of this
Warrant and payment of the Aggregate Exercise Price as aforesaid, the Company
shall issue and cause to be delivered with all reasonable dispatch to, or upon
the written order of, the Warrantholder (and in such name or names as the
Warrantholder may designate) a certificate or certificates for the Exercise
Amount.
(d) Fractional Shares. The Company shall not be required to deliver
fractions of shares of Common Stock upon exercise of this Warrant. If any
fraction of a share of Common Stock would be deliverable upon exercise of this
Warrant, the Company may, in lieu of delivering such fraction of a share of
Common Stock, make a cash payment to the Warrantholder in an amount equal to the
same fraction of the Current Market Price.
(e) Partial Exercise. In the event of a partial exercise of this Warrant,
the Company shall issue to the Warrantholder a Warrant in like form for the
unexercised portion thereof. SECTION 4. Adjustments to Aggregate Number The
Aggregate Number shall be subject to adjustment from time to time as set forth
in this Section 4.
(a) Adjustments for Stock Dividends, Subdivisions or Combinations. In the
event that at any time or from time to time, the Company shall:
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(i) take a record of the holders of its Common Stock for the purpose
of entitling them to receive a dividend payable in, or other distribution
of, Common Stock (a "Stock Dividend"),
(ii) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock (a "Stock Subdivision"), or
(iii)combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock (a "Stock Combination"),
then the Aggregate Number in effect immediately prior thereto shall,
concurrently with the effectiveness of such Stock Dividend, Stock Subdivison or
Stock Combination, be (1) proportionately increased in the case of a Stock
Dividend or a Stock Subdivision (with the Exercise Price proportionately
decreased) and (2) proportionately decreased in the case of a Stock Combination
(with the Exercise Price proportionately increased). In the event the Company
shall declare or pay, without consideration, any dividend on the Common Stock
payable in any right to acquire Common Stock for no consideration, then the
Company shall be deemed to have made a Stock Dividend in an amount of shares
equal to the maximum number of shares issuable upon exercise of such rights to
acquire Common Stock.
(b) Adjustments for Other Distributions. In case at any time or from time
to time the Company shall take a record of the holders of its Common Stock for
the purpose of entitling them to receive any dividend or other distribution
(collectively, a "Distribution") of:
(i) cash,
(ii) any evidences of its indebtedness, any shares of its capital
stock (other than additional shares of Common Stock) or any other
securities or property of any nature whatsoever (other than cash), or
(iii) any options or warrants or other rights to subscribe for or
purchase any of the following: any evidences of its indebtedness, any
shares of its capital stock (other than additional shares of Common Stock)
or any other securities or property of any nature whatsoever,
then the Warrantholder shall be entitled to receive upon the exercise of this
Warrant at any time on or after the taking of such record the number of Warrant
Shares to be received upon exercise of this Warrant determined as stated herein
and, in addition and without further payment, the cash, evidences of
indebtedness, stock, securities, other property, options, warrants and/or other
rights to which the Warrantholder would have been entitled by way of the
Distribution and subsequent dividends and distributions through the date of
exercise as if the Warrantholder (1) had exercised this Warrant immediately
prior to such Distribution and (2) had retained the Distribution in respect of
the Common Stock and all subsequent dividends and distributions of any nature
whatsoever in respect of any stock or securities paid as dividends and
distributions and originating directly or indirectly from such Common Stock.
(c) Adjustments for Reclassification, Exchange and Substitution. If the
Common Stock issuable upon exercise of this Warrant shall be changed into the
same or a different number of shares of any other class or classes of stock,
whether by capital reorganization, reclassification, merger, share exchange or
otherwise (other than a Stock Dividend, Stock Subdivision or Stock Combination
provided for above), the Aggregate Number then in effect, the Exercise Price
then in effect and the type of security purchasable under this Warrant shall,
concurrently with the effectiveness of such reorganization, reclassification,
merger, share exchange or other transaction, be appropriately and equitably
adjusted such that this Warrant shall be exercisable for, in lieu of the number
of shares of Common Stock which the Warrantholder would otherwise have been
entitled to receive, that number of shares of such other class or classes of
stock equivalent to the number of shares of Common Stock that would have been
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subject to receipt by the Warrantholder upon exercise of this Warrant
immediately before such change and at an Exercise Price economically equivalent
to the Exercise Price in effect immediately before such change.
(d) Consolidation, Merger, Share Exchange, etc. In case a consolidation,
merger or share exchange of the Company shall be effected with another Person on
or after the date hereof, or the sale, lease or transfer of all or substantially
all of its assets to another Person shall be effected on or after the date
hereof, then, as a condition of such consolidation, merger, share exchange,
sale, lease or transfer, lawful and adequate provision shall be made whereby the
Warrantholder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions specified herein and in lieu of each
Warrant Share immediately theretofore purchasable and receivable upon the
exercise of this Warrant, such shares of stock, securities, cash or other
property receivable upon such consolidation, merger, share exchange, sale, lease
or transfer by the holder of the number of shares of Common Stock issuable
pursuant to this Warrant immediately prior to such event. In any such case,
appropriate and equitable provision also shall be made with respect to the
rights and interests of the Warrantholder to the end that the provisions hereof
shall thereafter be applicable, as nearly as may be, in relation to any shares
of stock, securities, cash or other property thereafter deliverable upon the
exercise of this Warrant. The Company shall not effect any such consolidation,
merger, share exchange, sale, lease or transfer unless prior to or
simultaneously with the consummation thereof the successor Person (if other than
the Company) resulting from such consolidation, merger or share exchange or the
Person purchasing, leasing or otherwise acquiring such assets shall assume, by
written instrument mailed to the Warrantholder at its last address appearing on
the books of the Company, the obligation to deliver to the Warrantholder such
shares of stock, securities, cash or other property as, in accordance with the
foregoing provisions, the Warrantholder may be entitled to purchase. The above
provisions of this Section 4(d) shall similarly apply to successive
consolidations, mergers, share exchanges, sales, leases or transfers.
(e) Certificate as to Adjustments. The Company shall, upon the written
request at any time by the Warrantholder, furnish or cause to be furnished to
the Warrantholder a certificate setting forth such adjustments and
readjustments, the Aggregate Number at the time in effect and the amount, if
any, of other property which at the time would be received upon exercise of the
this Warrant. Upon the occurrence of each adjustment or readjustment of the
Aggregate Number pursuant to this Section 4, the Company at its expense shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and furnish to the Warrantholder a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based.
(f) Notices of Record Date. In the event that the Company shall propose at
any time:
(i) to declare any dividend or distribution upon its Common Stock,
whether or not a regular cash dividend or a dividend payable in shares of
capital stock and whether or not out of earnings or earned surplus;
(ii) to offer for subscription pro rata to the holders of any class or
series of its stock any additional shares of stock of any class or series,
or any other rights;
(iii) to effect any reclassification or recapitalization of its
outstanding Common Stock involving a change in the Common Stock; or
(iv) to merge or consolidate with or into any other corporation, or
sell, lease or convey all or substantially all of its property or business,
or to liquidate, dissolve or wind up or enter into any share exchange;
then, in connection with each such event, the Company shall send to the
Warrantholder:
(A) at least 20 days' prior written notice of the date on which a
record shall be taken for such dividend, distribution or subscription
rights (and specifying the date on which the holders of Common Stock
shall be entitled thereto) or for determining rights to vote in
respect of the matters referred to in clauses (iii) and (iv) above and
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which such notice shall set forth such facts with respect thereto as
shall be reasonably necessary to indicate the effect of such action on
the Common Stock, if any, and any adjustment which will be required to
be made to the Aggregate Number and the Exercise Price as a result of
such action; and
(B) in the case of matters referred to in clauses (iii) and (iv)
above, in the event a record date is taken with respect to any such
matter, at least 20 days' prior written notice of such record date or,
if no such record date is taken, at least 20 days' prior written
notice of the date when such matters shall take place (and specifying
the date on which the holders of Common Stock shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon the occurrence of such event).
(g) No Dilution or Impairment. The Company will not, by amendment of the
Articles of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, share exchange, dissolution or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, including without limitation the adjustments
required under this Section 4, and will at all times in good faith assist in the
carrying out of all such terms and in taking of all such action as may be
necessary or appropriate to protect the rights of the Warrantholder against the
type or nature of dilution or other impairment for which protection is
contemplated to be afforded the Warrantholder in this Warrant.
SECTION 5. Adjustments in Exercise Price.
(a) If the Company sells any shares of Common Stock between June 30, 2000
and December 31, 2000 for Net Consideration Per Share (as defined below) that is
less than $5.90, upon such sale the Exercise Price for this Warrant will
concurrently be reduced so that the Net Consideration Per Share paid by Glenayre
in the transactions contemplated by this agreement and the Securities Purchase
Agreement equals the lowest Net Consideration Per Share at which any such share
of Common Stock has been sold during that period. For purposes of illustration,
the Net Consideration Per Share for Glenayre's investment is calculated as set
forth on Exhibit B. In addition, for purposes of illustration, Exhibit C sets
forth a list of the applicable assumption parameters underlying such
calculation.
(b) "Net Consideration Per Share" shall mean the quotient resulting from
dividing (x) the excess of the gross cash proceeds raised through an equity
offering or other sale of Common Stock over the value of any warrants issued in
such offering calculated using the Black Scholes model for valuing warrants by
(y) the total number of shares issued in such equity offering. In valuing such
warrants the same assumption parameters used in calculating the value of the
Warrants in Exhibit B shall be used.
(c) Prior to issuing any shares of Common Stock on or before December 31,
2001 (other than those described in paragraph (d)) below, the Company will
calculate the Net Consideration Per Share for such issuance (including the
valuation of any warrants) and the amount of any proposed reduction in the
Exercise Price for this Warrant as required by paragraph (a) above. The Company
shall submit such calculations to Glenayre (along with assumption parameters
used in the Black Scholes valuation of any warrants) for its approval, which
approval shall not be unreasonably withheld; provided, however, that the Company
shall not be prohibited from completing an issuance because Glenayre has not yet
given its approval.
Notwithstanding the foregoing, there will be no adjustment to the Exercise Price
hereunder with respect to (i) the exercise of stock options (pursuant to an
option plan that has been approved by the board or directors of the Company) to
employees, directors or consultants of the Company and its subsidiaries, (ii)
the issuance of shares of Common Stock in connection with a merger or the
acquisition of another business or the assets or customers of another business
or (iii) the issuance of shares of Common Stock upon the exercise of currently
outstanding warrants.
SECTION 6. Warrantholder's Rights in Case of Other Securities. If the
Warrantholder at any time shall have received or shall be entitled to receive
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Other Securities pursuant to the terms hereof, appropriate provision shall be
made so that the Warrantholder receives with respect to such Other Securities as
nearly as possible the intended benefits of this Warrant with respect thereto.
SECTION 7. No Impairment. The Company (a) will not increase the par value
of any shares of Common Stock receivable on the exercise of this Warrant or take
any other action if as a result thereof such par value would exceed the Exercise
Price and (b) will take all such action as may be reasonably necessary or
appropriate so that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock on the exercise of this Warrant.
SECTION 8. Reservation to Common Stock and Other Covenants.
(a) Reservation of Authorized Common Stock. The Company shall at all times
reserve and keep available out of the aggregate of its authorized but unissued
shares, free of preemptive rights, such number of its duly authorized shares of
Common Stock, or other stock or securities deliverable pursuant to Section 4
hereof, as shall be sufficient to enable the Company at any time to fulfill all
of its obligations hereunder.
(b) Affirmative Actions to Permit Exercise and Realization of Benefits. If
any shares of Common Stock reserved or to be reserved for the purpose of
exercise of this Warrant, or any shares or other securities reserved or to be
reserved for the purpose of issuance pursuant to Section 4 hereof, require
registration with or approval of any governmental authority under any federal or
state law before such shares or other securities may be validly delivered upon
exercise of this Warrant, then the Company covenants that it will, at its sole
expense, secure such registration or approval, as the case may be. The Company's
obligation hereunder shall apply also to approvals or expirations of waiting
periods required under the Hart-Scott-Rodino Antitrust Improvements Act (the
"HSR Act"), and with respect to any filings under the HSR Act, whether by the
Company, the Warrantholder or any other Person, the Company shall bear the costs
of all such filing fees with respect to such filings.
(c) Validly Issued Shares. The Company covenants that all shares of Common
Stock that may be delivered upon exercise of this Warrant (including those
issued pursuant to Section 4 hereof) shall upon delivery by the Company be duly
authorized and validly issued, fully paid and nonassessable, free from all
taxes, liens and charges with respect to the issue or delivery thereof and
otherwise free of all other security interests, encumbrances and claims of any
nature whatsoever other than those created by the Warrantholder.
(d) Restrictions on Performance. The Company shall not at any time after
the date hereof enter into an agreement or other instrument which, by its terms,
restricts its ability to perform its obligations hereunder or making such
performance or the issuance of shares of Common Stock upon the exercise of this
Warrant a default under any such agreement or instrument.
(e) Modification of Articles of Incorporation and By-Laws. The Company
shall not amend or consent to any modification, supplement or waiver of any
provision of the Articles of Incorporation or the bylaws of the Company in any
manner which would have a material adverse effect on the rights of the
Warrantholder hereunder without the prior written consent of the Warrantholder
(which consent shall not be unreasonably withheld or delayed).
SECTION 9. Transfers of the Warrant.
(a) Transfer and Exchanges. The Company shall initially record this Warrant
on a register to be maintained by the Company with its other stock books and,
subject to Section 9(b) hereof, from time to time thereafter shall transfer this
Warrant on such register when this Warrant is: (i) surrendered for transfer in
accordance with the terms hereof, and (ii) properly endorsed and accompanied by
appropriate instructions. Upon any such transfer, a new Warrant or Warrants
shall be issued to the transferee and the Warrantholder (in the event that this
Warrant is only partially transferred) and the surrendered Warrant shall be
canceled. Each such transferee shall succeed to the rights of the transferring
Warrantholder hereunder to the extent of such transfer. This Warrant may be
exchanged at the option of a Warrantholder, when surrendered at the Principal
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Office of the Company, for another Warrant or other Warrants of like tenor and
representing in the aggregate the right to purchase a like number of shares of
Common Stock, subject to adjustment as more fully set forth herein.
(b) Transfers Subject to Securities Laws; Registration Rights; and
Securities Purchase Agreement. Subject to the securities law restrictions set
forth in the legend on the first page of this Warrant, the Warrantholder may at
any time and from time to time freely transfer its Warrant and the Warrant
Shares in whole or in part. Pursuant to the Registration Rights Agreement dated
as of the date hereof, between the Company and the Warrantholder, the Company
has granted certain registration rights to the Warrantholder. This Warrant and
the Warrant Shares are issued or issuable subject to the provisions and
conditions contained herein and in the Securities Purchase Agreement.
SECTION 10. No Voting Rights Prior to the exercise of this Warrant, the
Warrantholder shall not be entitled to any voting or other rights as a
stockholder of the Company as a result of being a holder of this Warrant except
as expressly provided herein.
SECTION 11. Payment of Taxes The Company shall pay all stamp taxes
attributable to the initial issuance of shares or other securities issuable upon
the exercise of this Warrant or issuable pursuant to Section 4 hereof, excluding
any tax or taxes which may be payable because of the transfer involved in the
issuance or delivery of any certificates for shares or other securities in a
name other than that of the Warrantholder in respect of which such shares or
securities are issued.
SECTION 12. Replacement Warrant If this Warrant is mutilated, lost, stolen
or destroyed, the Company shall issue and deliver in exchange and substitution
for and upon cancellation of the mutilated Warrant, or in lieu of and in
substitution for the Warrant lost, stolen or destroyed, a new Warrant of like
tenor and representing an equivalent right or interest, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction of such Warrant and upon receipt of indemnity reasonably
satisfactory to the Company.
SECTION 13. Delays, Omissions and Indulgences No delay or omission to
exercise any right, power or remedy accruing to the Warrantholder upon any
breach or default of the Company hereunder shall impair any such right, power or
remedy, nor shall it be construed to be a waiver of any such breach or default,
or any acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofor or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the Warrantholder's part of any breach or default hereunder or under this
Warrant, or any waiver on the Warrantholder's part of any provisions or
conditions hereof must be in writing and that all remedies, either hereunder or
by law or otherwise afforded to the Warrantholder, shall be cumulative and not
alternative.
SECTION 14. Notices All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, telecopy, overnight
courier service or personal delivery and shall be addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party:
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(a) if to the Company:
Multi-Link Telecommunications, Inc.
4704 Harlan Street
Suite 420
Denver, Colorado 80212
Attention: Nigel V. Alexander
Chief Executive Officer
Telecopy: (303) 831-1988
(b) If to the initial Warrantholder hereunder:
Glenayre Technologies, Inc.
5935 Carnegie Boulevard
Charlotte, North Carolina 28209
Attention: Eric L. Doggett
President & CEO
Telecopy: (704) 553-7878
(c) if to any subsequent Warrantholder, to the respective
address set forth on the corporate records of the Company.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; five Business
Days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is acknowledged, if telecopied.
SECTION 15. Successors and Assigns This Warrant shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, provided that the Company shall have no right to assign its rights, or
to delegate its obligations, hereunder without the prior written consent of the
Warrantholder.
SECTION 16. Amendments No amendment to or waiver of this Warrant shall be
effective unless in writing and executed by the Warrantholder.
SECTION 17. Severability If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
SECTION 18. Governing Law THIS AGREEMENT AND EACH WARRANT IS TO BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF COLORADO, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE.
SECTION 19. Entire Agreement This Warrant and the Securities Purchase
Agreement are intended by the parties as a final expression of their agreement
and are intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
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SECTION 20. Rules of Construction The titles and captions of the Sections
and other provisions hereof are for convenience of reference only and are not to
be considered in construing this Agreement. Unless the context otherwise
requires "or" is not exclusive, and references to sections or subsections refer
to sections or subsections of this Warrant. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
as of the date first above written.
MULTI-LINK TELECOMMUNICATIONS, INC.
By:
-----------------------------------
Name: Nigel V. Alexander
Title: Chief Executive Officer
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EXHIBIT A
FORM OF ELECTION TO PURCHASE
To: MULTI-LINK TELECOMMUNICATIONS, INC.
1. The undersigned, pursuant to the provisions of the attached Warrant,
hereby elects to exercise such Warrant with respect to ________ shares of Common
Stock (the "Exercise Amount"). Capitalized terms used but not otherwise defined
herein have the meanings ascribed thereto in the attached Warrant.
2. The undersigned herewith tenders payment for such shares in cash or
other immediately available funds.
3. Please issue a certificate or certificates representing the shares
issuable in respect hereof under the terms of the attached Warrant, as follows:
---------------------------------------
(Name of Record Warrantholder/Transferee)
and deliver such certificate or certificates to the following address:
------------------------------------------
------------------------------------------
------------------------------------------
(Address of Record Warrantholder/Transferee)
4. The undersigned represents that the aforesaid shares are being acquired
for the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned has
no present intention of distributing or reselling such shares.
5. If the Exercise Amount is less than all of the shares of Common Stock
purchasable hereunder, please issue a new warrant representing the remaining
balance of such shares, as follows:
---------------------------------------
(Name of Record Warrantholder/Transferee)
and deliver such warrant to the following address:
------------------------------------------
------------------------------------------
------------------------------------------
(Address of Record Warrantholder/Transferee)
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In witness whereof, the undersigned Warrantholder has caused this Election
to Purchase to be executed as of this _____ day of __________, ______.
-----------------------------------
(Name of Warrantholder)
By:
---------------------------------
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EXHIBIT B
NET CONSIDERATION PER SHARE COMPUTATION EXAMPLE
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EXHIBIT C
ASSUMPTION PARAMETERS UNDERLYING COMPUTATION OF NET CONSIDERATION PER SHARE
15
