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EXHIBIT 4.4
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ("WARRANTS") AND THE UNDERLYING
WARRANT SHARES ("WARRANT SHARES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE WARRANTS MAY NOT BE
EXERCISED OFFERED OR SOLD UNLESS, IN EACH CASE, THE WARRANTS AND WARRANT SHARES
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE, AS EVIDENCED BY AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
PLEDGED, HYPOTHECATED AND ENCUMBERED.
WARRANTS TO PURCHASE COMMON STOCK
MICROTEL INTERNATIONAL, INC., a Delaware corporation (the "Company") hereby
grants to ____________ (the "Holder") _____________ (_________) non-transferable
warrants (the "Warrants") for the purchase of common stock of the Company (the
"Common Stock"), with each whole Warrant entitling the Holder to purchase one
share of Common Stock (each a "Warrant Share" and collectively the "Warrant
Shares") on the terms and subject to the conditions set forth herein.
1. TERM. The Warrants may be exercised, in whole or in part, at any time
and from time to time from the date hereof until 5:00 Pacific Time on May 3,
2002 (the "Exercise Period").
2. EXERCISE PRICE. The initial exercise price of each whole Warrant shall
be $0.75 per share (the "Exercise Price"). The Exercise Price shall be subject
to adjustment as provided in Section 9.
3. EXERCISE OF WARRANTS. The Warrants are exercisable on the terms
provided herein at any time during the Exercise Period by the surrender of this
certificate to the Company at its principal office together with the Notice of
Exercise annexed hereto duly completed and executed on behalf of the Holder,
accompanied by payment in full, in immediately available funds, of the amount of
the aggregate Exercise Price of the Warrant Shares being purchased upon such
exercise. The Holder shall be deemed the record owner of such Warrant Shares as
of and from the close of business on the date on which this certificate is
surrendered together with the completed Notice of Exercise and payment in full
as required above (the "Exercise Date"). The Company agrees that the Warrant
Shares so purchased shall be issued as soon as practicable thereafter. It shall
be a condition to the exercise of the Warrants that the Holder or any transferee
hereof provide an opinion of counsel reasonably satisfactory to the Company that
the Warrants and the Warrant Shares to be delivered upon exercise thereof have
been registered under the Securities Act or that an exemption from the
registration requirements of the Securities Act is available.
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4. FRACTIONAL INTEREST. In lieu of issuing fractional shares of Common
Stock upon exercise of the Warrants, the Company may pay the Holder a cash
amount determined by multiplying the fraction of a share otherwise issuable by
the Fair Market Value of one share of Common Stock. For this purpose, "Fair
Market Value" means the average closing sale price for the ten trading days
immediately preceding the Exercise Date or, if there is no last-sale reporting
for the Common Stock at such time, then the value as determined in good faith by
the Board of Directors of the Company.
5. WARRANTS CONFER NO RIGHTS OF STOCKHOLDER. The Holder shall not have
any rights as a stockholder of the Company with regard to the Warrant Shares
prior to the Exercise Date for any actual purchase of Warrant Shares.
6. INVESTMENT REPRESENTATION. Neither the Warrants nor the Warrants
Shares issuable upon the exercise of the Warrants have been registered under the
Securities Act or any state securities laws. The Holder acknowledges by signing
this certificate that, as of the date of this Warrant and at the time of
exercise that: (a) the Holder has acquired the Warrant or the Warrant Shares, as
the case may be, for the Holder's own account; (b) the Holder has acquired the
Warrants or the Warrant Shares, as the case may be, for investment and not with
a view to distribution; and (c) either the Holder has a pre-existing personal or
business relationship with the Company or its executive officers, or by reason
of the Holder's business or financial experience the Holder has the capacity to
protect the Holder's own interests in connection with the transaction. The
Holder agrees, by acceptance of this certificate, that any Warrant Shares
purchased upon exercise of the Warrants may have to be held indefinitely, until
registered and qualified for resale pursuant to Section 7, or until an exemption
from registration is available, as evidenced by an opinion of counsel reasonably
satisfactory to the Company. The Holder, by acceptance of this certificate,
consents to the placement of a restrictive legend (the "Legend") on the
certificates representing any Warrant Shares that are purchased upon exercise of
the Warrants during the applicable restricted period under Rule 144 or any other
applicable restricted period under the Securities Act. The Legend shall be in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, UNLESS IN THE WRITTEN
LEGAL OPINION (APPROVED BY THE COMPANY) OF COUNSEL SATISFACTORY TO THE
COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
7. REGISTRATION RIGHTS. The Company shall have no obligation to register
the Warrant Shares under the Securities Act of 1933, as amended (the "Securities
Act") in a separate registration statement with the Securities and Exchange
Commission (the "SEC") and accordingly, the Warrant Shares shall constitute
"restricted securities" for purposes of the
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Securities Act and Holder will not be able to transfer such Shares except upon
compliance with the registration requirements of the Securities Act and
applicable state securities laws or an exception therefrom and the
certificate(s) evidencing the Warrant Shares to be issued shall contain a legend
to the foregoing effect.
8. RESERVATION OF SHARES. The Company agrees that, at all times during
the Exercise Period, the Company will have authorized and reserved, for the
exclusive purpose of issuance and delivery upon exercise of the Warrants, a
sufficient number of shares of its Common Stock to provide for the issuance of
the Warrant Shares.
9. ADJUSTMENT FOR CHANGES IN CAPITAL STOCK. If the Company at any time
during the Exercise Period shall, by subdivision, combination or
reclassification of securities, change any of the securities into which the
Warrants are exercisable into the same or a different number of securities of
any class or classes, the Warrants shall thereafter entitle the Holder to
acquire such number and kind of securities as would have been issuable as a
result of such change with respect to the Warrant Shares if the Warrant Shares
had been outstanding immediately prior to such subdivision, combination, or
reclassification. If shares of the Company's Common Stock are subdivided into a
greater number of shares of Common Stock, the Exercise Price for the Warrant
Shares upon exercise of the Warrants shall be proportionately reduced and the
number of Warrant Shares shall be proportionately increased; and conversely, if
shares of the Company's Common Stock are combined into a smaller number of
shares of Common Stock, the Exercise Price shall be proportionately increased,
and the number of Warrant Shares shall be proportionately decreased.
10. LOSS, THEFT, DESTRUCTION OR MUTILATION OF CERTIFICATE. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of any certificate representing the Warrants or the
Warrant Shares (referred to herein as the "original certificate"), and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory
to the Company, and upon reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the original
certificate if mutilated, the Company will make and deliver a new certificate of
like tenor in lieu of the original certificate.
11. ASSIGNMENT. The Warrants may not be transferred or assigned.
12. GENERAL. This certificate shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts
between California residents entered into and to be performed entirely within
the State of California. The headings herein are for purposes of convenience and
reference only and shall not be used to construe or interpret the terms of this
certificate. The terms of this certificate may be amended, waived, discharged or
terminated only by a written instrument signed by both the Company and the
Holder. All notices and other communications from the Company to the Holder
shall be mailed by first-class registered or certified mail, postage pre-paid,
to the address furnished to the Company in writing by the last Holder who shall
have furnished an address to the Company in writing.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on
_____________.
MICROTEL INTERNATIONAL, INC.
By:
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Carmine T. Oliva
Chairman of the Board, President &
Chief Executive Officer
[NAME OF HOLDER]
Dated: By:
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(Authorized Signature)
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(Name and Title)
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NOTICE OF EXERCISE
To: MicroTel International, Inc. (the "Company")
1. The undersigned hereby elects to exercise a total of ___________
Warrants for the purchase of a like number of Warrant Shares, and tenders
herewith payment of the Exercise Price for such shares in full.
2. In exercising the Warrants, the undersigned hereby confirms and
acknowledges that: (a) the Warrant Shares are being acquired solely for the
account of the undersigned for investment and not with a view to or for sale in
connection with any distribution; (b) the undersigned has a pre-existing
personal or business relationship with the Company or its executive officers, or
by reason of the undersigned's business or financial experience the undersigned
has the capacity to protect the undersigned's own interests in connection with
the exercise of the Warrants; and (c) the undersigned will not offer, sell or
otherwise dispose of any of the Warrant Shares unless the Warrant Shares have
been registered under the Securities Act or an exemption from such registration
is available, as evidenced by an opinion of counsel reasonably satisfactory to
the Company.
3. The undersigned hereby certifies that the undersigned has delivered to
the Company an opinion of counsel to the effect that the Warrants and the
Warrant Shares have been registered under the Securities Act or an exemption
from such registration is available.
4. Please issue a certificate representing the Warrant Shares in the name
of the Holder and deliver the certificate to the address set forth below.
5. Please issue a new certificate representing the unexercised portion
(if any) of the Warrants in the name of the Holder and deliver the certificate
to the address set forth below.
Dated:
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(Name)
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(Authorized Signature)
Address for Delivery:
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