EXHIBIT 99.9
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR STATE SECURITIES
LAWS OR SIMILAR LAWS OF ANY OTHER JURISDICTION. THE SECURITIES MAY NOT BE
OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER ANY APPLICABLE UNITED
STATES FEDERAL OR STATE SECURITIES LAWS OR SIMILAR LAWS OF ANY OTHER
JURISDICTIONS, OR AN EXEMPTION THEREFROM.
WARRANT FOR SERIES A CONVERTIBLE PREFERRED STOCK OR
COMMON STOCK
OF
NETVOICE TECHNOLOGIES CORPORATION
No. WE-3
THIS IS TO CERTIFY that this Warrant Certificate is delivered to
the Holder, pursuant to Section 4.2 of that certain Amended and Restated
Securities Purchase Agreement dated as of July 28, 2000 (such Amended and
Restated Securities Purchase Agreement, as amended from time to time, the
"Securities Purchase Agreement") by and among NetVoice Technologies
Corporation, a Nevada corporation (the "Company"), BG Media Immediate Fund
L.P., a Delaware limited partnership ("BG Media"), NV Investments, L.P., a
Texas limited partnership, Paribas North America, Inc., a Delaware
corporation, and the other parties listed on the signature pages thereto
and certifies that BG Media is the registered holder (the "Holder") of this
Warrant and has the right to purchase from the Company up to 172,564 shares
(the "Series A Shares") of the Series A Convertible Preferred Stock, par
value US$0.001 per share ("Series A Preferred Stock"), or 172,564 shares
(the "Common Shares"), of the Common Stock, par value US$0.001 per share
("Common Stock"), of the Company, as may be provided herein. Upon the
terms and subject to the conditions contained herein, including Section 2
hereof, this Warrant entitles the Holder upon exercise to receive from the
Company either 172,564 duly and validly issued, fully paid and
nonassessable Series A Shares or 172,564 duly and validly issued, fully
paid and nonassessable Common Shares. This Warrant supersedes and replaces
Warrant No. WE-1 previously issued to BG Media.
1. DEFINITIONS.
As used in this Warrant, the following terms have the following
respective meanings:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Affiliate" has the meaning set forth in Rule 405 under the Act.
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(c) "Audited Financial Statements" means the audited financial
statements of the Company as of and for the fiscal year ended December 31,
2000 as are prepared for inclusion in the Company's Annual Report on Form
10-KSB or Form 10-K, as may be appropriate, for such fiscal year.
(d) "Certificate of Designation" has the meaning set forth in the
Securities Purchase Agreement.
(e) "Common Shares" has the meaning set forth in the preamble of this
Warrant.
(f) "Common Stock" has the meaning set forth in the preamble of this
Warrant.
(g) "Company" has the meaning set forth in the preamble of this Warrant.
(h) "Convertible Security" means Securities of the Company which may
be directly or indirectly convertible into or exchangeable for Series A
Preferred Stock.
(i) "Date of Issuance" means the date set forth next to the signature
of the Company on the signature page hereof.
(j) "EBITDA" means the net income (or loss) of the Company and its
consolidated subsidiaries for the fiscal year ended December 31, 2000, plus
(i) the amount of interest expense during such period for Indebtedness,
(ii) the amount of the provision for federal, state and local income and
franchise taxes (attributable to such net income) for such period, (iii)
depreciation and amortization for such period (including amortization of
unearned compensation) and (iv) the amount of compensation expense during
such period resulting from the exercise by the Exercising Option Holders
(as defined in the Securities Purchase Agreement) of 1,800,000 shares of
Common Stock on or about June 30, 2000, in each case as and to the extent
that such amounts are deducted in determining net income (or loss) of the
Company and its consolidated subsidiaries for such period in accordance
with GAAP. At the same time as the delivery of the Audited Financial
Statements, the independent auditors shall deliver to the Company and the
Series A Director a certificate setting forth in reasonable detail their
calculation of EBITDA, which shall be calculated by reference to such
Audited Financial Statements. Such certificate shall be conclusive absent
manifest error.
(k) "Exercise Date" means the date immediately following the day upon
which the Company's Audited Financial Statements are delivered to the
Company by its independent auditors, but in no event later than April 2, 2001.
(l) "Exercise Price" means $0.01 per Share.
(m) "GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
(n) "Indebtedness" shall mean all obligations of the Company and its
consolidated subsidiaries which in accordance with GAAP would be classified
upon a balance sheet as
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liabilities (except capital stock and surplus earned or otherwise and
current trade and other accrued payables incurred in the ordinary course of
business and payable in accordance with customary practices).
(o) "Organic Change" has the meaning set forth in Section 9 of this
Warrant.
(p) "Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a government or any department or agency thereof.
(q) "Securities" has the meaning assigned to such term in the Act or
any rule or regulation thereunder.
(r) "Securities Purchase Agreement" has the meaning set forth in the
preamble of this Warrant.
(s) "Series A Preferred Stock" has the meaning set forth in the
preamble of this Warrant.
(t) "Series A Shares" has the meaning set for in the preamble of this
Warrant.
(u) "Shares" means the Series A Shares and/or the Common Shares.
(v) "Warrant" means this Warrant, as same may be amended from time to
time in accordance herewith.
(w) "Warrants" mean this Warrant and all other EBITDA Warrants (as
defined in the Securities Purchase Agreement) issued pursuant to the
Securities Purchase Agreement.
(x) "Warrant Stock" means the Shares which the Holder hereof upon may
acquire upon the exercise of this Warrant.
2. EXERCISABILITY OF WARRANT. If EBITDA is greater than or equal
to negative $2,500,000 this Warrant shall not be exercisable and shall
expire on the day immediately preceding the Exercise Date. If EBITDA is
less than negative $2,500,000, this Warrant shall immediately become
exercisable for the Series A Shares, in the event that any shares of Series
A Preferred Stock are then outstanding, or the Common Shares, in the event
that there are no shares of Series A Preferred Stock then outstanding.
3. EXERCISE OF WARRANT.
(a) Subject to Section 2, this Warrant shall be exercisable in whole
or part from time to time after the Exercise Date and shall expire at 5:00
p.m. New York time on June 30, 2010. To exercise this Warrant, the Holder
shall surrender this Warrant Certificate and a completed "Election to
Exercise", substantially in the form annexed hereto, at the office of the
Company, together with the payment to the Company of the Exercise Price for
the Shares issuable upon exercise of this Warrant. The Company shall issue
and cause to be delivered within five business
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days to the Holder and registered in the Holder's name, a certificate or
certificates for the number of full Shares issuable upon the exercise of
this Warrant, together with cash in lieu of any fractional shares (based on
the fair market value of the Shares, as jointly determined by the Board of
Directors and holders of a majority of the Warrants) and, if applicable, a
new Warrant Certificate substantially identical hereto representing any
remaining unexercised portion of this Warrant. Other than payment of the
Exercise Price as specified above, no payment shall be due at any time in
connection with the exercise of this Warrant.
(b) All certificates representing Warrant Stock as aforesaid shall be
deemed to have been issued, and the Holder or other person designated to be
named therein shall be deemed to become a holder of record of the subject
Warrant Stock (including, to the extent permitted by law, the right to vote
such securities or grant consents or receive notices as a stockholder), as
of the time the Holder's Election to Exercise and this Warrant Certificate
is received by the Company as aforesaid.
(c) All Warrant Stock issuable upon the exercise of this Warrant in
whole or in part shall, upon payment therefor in accordance herewith, be
validly issued, fully paid and nonassessable and free from all liens and
charges with respect to the issuance thereof.
(d) The issuance of certificates for shares of Warrant Stock shall be
made without charge to the Holder for any issuance tax in respect thereof
or other cost incurred by the Company in connection with such exercise and
the related issuance of shares of Warrant Stock.
(e) The Company shall not close its books against the transfer of
this Warrant or of any share of Warrant Stock in any manner which
interferes with the timely exercise of this Warrant. The Company shall
from time to time take all such action as may be necessary to assure that
the par value per share of the unissued Shares acquirable upon exercise of
this Warrant is at all times equal to or less than the Exercise Price.
(f) The Company shall assist and cooperate with any Holder required
to make any governmental filings or obtain any governmental approvals prior
to or in connection with any exercise of this Warrant (including, without
limitation, making any filings required to be made by the Company).
(g) Notwithstanding any other provision hereof, if an exercise of any
portion of this Warrant is to be made in connection with a registered
public offering or the sale of the Company, the exercise of any portion of
this Warrant may, at the election of the Holder hereof, be conditioned upon
the consummation of the public offering or sale of the Company in which
case such exercise shall not be deemed to be effective until the
consummation of such transaction.
(h) Upon any exercise of this Warrant, the Election to Exercise shall
be substantially in the form annexed hereto, except that if the shares of
Warrant Stock are not to be issued in the name of the Holder, the Election
to Exercise shall also state the name of the Person to whom the
certificates for the shares of Warrant Stock are to be issued, and if the
number of Shares to be issued does not include all the shares of Warrant
Stock purchasable hereunder, it shall also state the name of the Person to
whom a new Warrant for the unexercised portion of the rights
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hereunder is to be delivered. Such Election to Exercise shall be dated the
actual date of execution thereof.
4. LIQUIDATING DIVIDENDS AND PURCHASE RIGHTS.
(a) LIQUIDATING DIVIDENDS. If the Company declares or pays a
dividend upon the Series A Preferred Stock or Common Stock payable
otherwise than in cash out of earnings or earned surplus (determined in
accordance with generally accepted accounting principles, consistently
applied) except for a stock dividend payable in shares of Series A
Preferred Stock or Common Stock (a "Liquidating Dividend"), then the
Company shall pay to the registered Holder of this Warrant at the time of
payment thereof (or, in the event that this Warrant is not then
exercisable, at such time, if any, that this Warrant becomes exercisable)
the Liquidating Dividend which would have been paid to such registered
Holder on the Series A Preferred Stock or Common Stock had this Warrant
been fully exercised immediately prior to the date on which a record is
taken for such Liquidating Dividend, or, if no record is taken, the date as
of which the record holders of Series A Preferred Stock or Common Stock
entitled to such dividends are to be determined.
(b) PURCHASE RIGHTS. If at any time the Company grants, issues or
sells any options, Convertible Securities or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of
any class of Series A Preferred Stock or Common Stock (the "Purchase
Rights"), then the Holder of this Warrant shall be entitled to acquire at
the time of such grant, issue or sale (or, in the event that this Warrant
is not then exercisable, at such time, if any, that this Warrant becomes
exercisable), upon the terms applicable to such Purchase Rights, the
aggregate Purchase Rights which such holder could have acquired if such
holder had held the number of shares of Series A Preferred Stock or Common
Stock acquirable upon complete exercise of this Warrant immediately before
the date on which a record is taken for the grant, issuance or sale of such
Purchase Rights, or, if no such record is taken, the date as of which the
record holders of Series A Preferred Stock or Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
5. TRANSFER AND ASSIGNMENT.
This Warrant and all rights hereunder are transferable, in whole
or in part, without charge to the Holder, on the books of the Company to be
maintained for such purposes, upon surrender of this Warrant at the office
of the Company set forth in paragraph 15 below, accompanied by a written
assignment duly executed by the Holder hereof indicating the number of
Warrants being transferred and the name, address and tax identification
number of each transferee. Upon any such delivery, the Company shall
execute and deliver to the Holder or the transferee(s) or both (as the case
may be) new warrants (in substantially the form of this Warrant) in the
appropriate denominations, and this Warrant shall thereupon be canceled.
6. SALE OF CONTROL.
If any person or group of persons (as defined in Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended) to whom Common Stock or
Series A Preferred Stock is
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proposed to be transferred (a "Proposed Transferee") would become a holder,
directly or indirectly, of all or substantially all of the outstanding
Common Stock or Series A Preferred Stock, as the case may be, as the result
of a transfer of Common Stock or Series A Preferred Stock, as the case may
be, of the Company by any stockholder or stockholders (such acquiring
person being referred to as a "Control Person"), no such purchase or
transfer shall be made, closed, effected or recorded in the Company's books
or records unless the Control Person or the person or group of persons who
would become the owner of all or substantially all of the Common Stock or
Series A Preferred Stock, as the case may be, as a result of any such
transfer shall offer, in writing to the holder of this Warrant if such
Warrant is then exercisable, to purchase this Warrant from the holder, at
the same price (on an "as converted" basis), terms and conditions as such
Control Person has offered to purchase the Common Stock or Series A
Preferred Stock, as the case may be, to be sold by such selling stockholder
or stockholders. The holder of this Warrant shall have twenty (20) days
from the receipt of an executed copy of any offer in which to accept such
offer. If this Warrant is not then exercisable, the Control Person shall
make such offer to the holder of this Warrant at such time, if any, that
this Warrant is then exercisable.
7. RESERVATION OF SHARES.
The Company shall at all times reserve and keep available solely
for the purpose of issuance upon the exercise hereof such number of
authorized but unissued or treasury shares of Series A Preferred Stock and
shares of Common Stock as shall be sufficient to permit the full exercise
of this Warrant and conversion of the Series A Shares, if applicable. The
Company shall take all such actions as may be necessary to assure that all
such Shares may be so issued without violation of any applicable law or
governmental regulation or any requirements of any domestic securities
exchange upon which shares of Common Stock may be listed (except for
official notice of issuance which shall be immediately delivered by the
Company upon each such issuance). The Company shall not take any action
which would cause the number of authorized but unissued shares of Series A
Preferred Stock or shares of Common Stock to be less than the number of
such shares required to be reserved hereunder for issuance upon exercise of
the Warrant and conversion of the Series A Shares, if applicable.
8. PROTECTION AGAINST ANTI-DILUTION.
The number of Common Shares for which this Warrant is exercisable
(the "Warrant Holder") shall be adjusted from time to time to an amount
equal to the number of Common Shares which would be received by the Holder
hereof had this Warrant been instead exercisable for Series A Shares at
such time and had such Series A Shares been issued upon exercise of this
Warrant and converted to shares of Common Stock at such time in accordance
with the terms of the Certificate of Designation. The foregoing adjustment
shall be made even if the Certificate of Designation is no longer then in
effect.
9. MERGERS, CONSOLIDATIONS, SALES.
In the case of any consolidation or merger of the Company with
another entity, or the sale of all or substantially all of its assets to
another entity, or any recapitalization,
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reorganization or reclassification of the Common Stock or other equity
securities of the Company or other transaction, in each case which is
effected in such a way that the holders of Common Stock are entitled to
receive (either directly or upon subsequent liquidation) stock, securities
or assets with respect to or in exchange for Common Stock (each, an
"Organic Change") then, prior to such Organic Change, lawful and adequate
provision shall be made whereby the holders of this Warrant shall
thereafter have the right to receive upon the basis and upon the terms and
conditions specified herein and in lieu of (or in addition to, as the case
may be) the shares of Common Stock immediately theretofore purchasable
hereunder, such shares of stock, securities or assets as may (by virtue of
such Organic Change) be issued or payable with respect to or in exchange
for a number of outstanding shares of Common Stock equal to the number of
shares of Common Stock immediately theretofore so purchasable hereunder had
such Organic Change not taken place, and in any such case appropriate
provisions shall be made with respect to the rights and interests of the
holder of this Warrant to the end that the provisions hereof (including,
but not limited to, provisions for adjustment of the number of Warrant
Shares) shall thereafter be applicable as nearly as may be, in relation to
any shares of stock, securities or assets thereafter deliverable upon
exercise of this Warrant (including, in the case of any such Organic Change
in which the successor entity or purchasing entity is other than the
Company, an immediate adjustment in the number of shares of Common Stock
acquirable and receivable upon exercise of the Warrant based on the
relative value of the Common Stock and the common stock of the successor
entity or purchasing entity). The Company shall not effect any such
consolidation, merger or sale unless prior to or simultaneously with the
consummation thereof, the successor entity (if other than the Company)
resulting from such consolidation or merger or the entity purchasing such
assets shall assume by written instrument executed and mailed or delivered
to the holder of this Warrant, the obligation to deliver to such holder
such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to receive.
10. CERTAIN EVENTS.
If any event occurs of the type contemplated by the provisions of
Section 8 or 9 but not expressly provided for by such provisions or
definitions (including, without limitation, the granting of stock
appreciation rights, phantom stock rights or other rights with equity
features), then the Company's Board of Directors shall make an appropriate
adjustment in the number of shares of Common Stock obtainable upon exercise
of this Warrant so as to protect the rights of the holders of the Warrant;
provided that no such adjustment shall decrease the number of shares of
Common Stock obtainable as otherwise determined pursuant to this Warrant.
11. DISSOLUTION OR LIQUIDATION.
In the event of any proposed distribution of the assets of the
Company in dissolution or liquidation (except under circumstances when the
foregoing paragraph 9 shall be applicable) the Company shall mail notice
thereof to the holders of this Warrant and shall make no distribution to
stockholders until the expiration of 30 days from the date of mailing of
the aforesaid notice and, in any such case, subject to Sections 2 and 3
above, any holder of this Warrant may exercise this Warrant within 30 days
from the date of mailing of such notice and all
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rights herein granted not so exercised within such 30 day period shall
thereafter become null and void.
12. NOTICE OF EXTRAORDINARY DIVIDENDS.
If the Board of Directors of the Company shall declare any
dividend or other distribution on its Common Stock except out of earned
surplus or by way of a stock dividend payable on its Common Stock, the
Company shall mail notice thereof to the holder of this Warrant not less
than 30 days prior to the record date fixed for determining stockholders
entitled to participate in such dividend or other distribution and the
holder of this Warrant shall not participate in such dividend or other
distribution or be entitled to any rights on account or as a result thereof
unless and to the extent that this Warrant is exercised prior to such
record date.
13. EXPENSES.
The Company shall pay any and all expenses, transfer taxes and
other charges, including all costs associated with the preparation,
issuance and delivery of stock or warrant certificates, that may be
incurred in respect of the issuance or delivery of Warrant Stock upon any
exercise of this Warrant.
14. NO RIGHTS AS STOCKHOLDER.
Nothing contained in this Warrant Certificate shall be construed
as conferring upon the Holder or transferee thereof any rights whatsoever
as a shareholder of the Company.
15. (a) NOTICES.
Except as otherwise expressly provided herein, all notices
referred to in this Warrant shall be in writing and shall be delivered
personally, sent by reputable overnight courier service (charges prepaid)
or sent by registered or certified mail, return receipt requested, postage
prepaid and shall be deemed to have been given when so delivered, sent or
deposited in the U.S. Mail as follows: any and all notices to be given to
the Company hereunder shall be given to the Company at its offices located
at 13747 Montfort Drive, Suite 250, Dallas, Texas 75240 Attention:
President and Vice President; and any and all notices to be given to the
Holder hereof shall be given to such Holder at its address as same appears
on the records of the Company.
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(b) NOTICE OF CERTAIN EVENTS.
(i) The Company shall give written notice to the Holder at least
twenty (20) days prior to the date on which the Company closes its
books or takes a record (A) with respect to any dividend or
distribution upon the Series A Preferred Stock or Common Stock, (B)
with respect to any pro rata subscription offer to holders of Series
A Preferred Stock or Common Stock or (C) for determining rights to
vote with respect to any Liquidating Dividend, Organic Change or other
dissolution or liquidation.
(ii) The Company shall also give written notice to the registered
Holders at least twenty (20) days prior to the date on which any
Liquidation Event, Organic Change or other dissolution or liquidation
shall take pace.
16. MISCELLANEOUS.
(a) No provision hereof, in the absence of affirmative action by the
Holder to effect any exercise hereunder, shall give rise to any liability
of such Holder as a stockholder of the Company, regardless of whether such
liability is asserted by the Company or by any creditor or creditors of the
Company.
(b) Neither this Warrant nor any of the terms or conditions hereof
may be waived, amended or modified, except with the written consent of the
Company and the registered Holder hereof.
(c) The corporation laws of the State of Nevada shall govern all
issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof. The Company hereby agrees that the
Holder, at its election, may bring any such action or proceeding in federal
or state courts situated in the County and State of New York, and hereby
submits to the jurisdiction of the State of New York.
(d) The captions and paragraph headings used in this Warrant are for
convenience of reference only, and shall not be referred to in connection
with any interpretation or construction hereof.
(e) This Warrant is exchangeable, upon the surrender hereof by the
Holder at the principal office of the Company, for new warrants of like
tenor representing in the aggregate the purchase rights hereunder, and each
of such new warrants shall represent such portion of such rights as is
designated by the Holder at the time of such surrender. The date the
Company initially issues this Warrant shall be deemed to be the "Date of
Issuance" hereof regardless of the number of times new certificates
representing the unexpired and unexercised rights formerly represented by
this Warrant shall be issued.
(f) Upon receipt of evidence reasonably satisfactory to the Company
(an affidavit of the Holder shall be satisfactory) of the ownership and the
loss, theft, destruction or mutilation of
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any certificate evidencing this Warrant, and in the case of any such loss,
theft or destruction, upon receipt of indemnity reasonably satisfactory to
the Company (provided that if the holder is a financial institution or
other institutional investor its own agreement shall be satisfactory), or,
in the case of any such mutilation upon surrender of such certificate, the
Company shall (at its expense) execute and deliver in lieu of such
certificate a new certificate of like kind representing the same rights
represented by such lost, stolen, destroyed or mutilated certificate and
dated the date of such lost, stolen, destroyed or mutilated certificate.
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IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be signed by its duly authorized representative and has
caused its corporate seal to be affixed hereunto or imprinted hereon.
Date: July __, 2000
NETVOICE TECHNOLOGIES CORPORATION
[corporate seal] By ___________________________________
Name:
Title:
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[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The Holder hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _________ shares of
[Series A Preferred Stock] [Common Stock] in accordance with the terms of
the Warrant Certificate. The undersigned requests that a certificate for
such shares be registered and issued in the name of the Holder. If said
number of shares is less than all of the shares purchasable hereunder, the
undersigned requests that a new Warrant Certificate representing the
remaining balance of such shares be issued in the name of the Holder.
Holder:________________________________
Signature:_____________________________
Name:
Title:
Date:
