NEITHER
THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON
THE EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD UNLESS AT THE TIME
OF SUCH OFFER OR SALE, THE PERSON MAKING SUCH OFFER OR SALE
DELIVERS A PROSPECTUS MEETING THE REQUIREMENTS OF SECTION 10 OF THE
ACT, FORMING A PART OF A REGISTRATION STATEMENT, OR POST-EFFECTIVE
AMENDMENT THERETO, WHICH IS EFFECTIVE UNDER SAID ACT, OR UNLESS, IN
THE OPINION OF COUNSEL TO THE CORPORATION, SUCH OFFER AND SALE IS
EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE
ACT.
MODAVOX, INC.
COMMON STOCK PURCHASE
WARRANT
November 21, 2007
Modavox, Inc. (the “ Company
”), a Delaware corporation, hereby certifies that, for value
received, Barry M. Goldwater, Jr. (together with all permitted
assigns, the “ Holder ”), is entitled, subject
to the terms set forth below at any time or from time to time after
the date hereof and before the Expiration Date (as defined below),
to purchase from the Company up to ONE HUNDRED TWENTY THOUSAND
(120,000) shares (the “ Shares ”) of the
Company’s common stock at a price of $1.15 per Share (the
purchase price per Share, as adjusted from time to time pursuant to
the provisions hereunder set forth, is referred to in this Warrant
as the “ Purchase Price ”).
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Time of
Exercise. Subject to the provisions of
Sections 4, “Transfer and Assignment,” and 15,
“Legends,” this Warrant may be exercised at any time
and from time to time after November 21, 2007 (the “
Exercise Commencement Date ”), but no later than 5:00
p.m., P.S.T., November 21, 2010 (the “ Expiration Date
”), constituting a period of three (3) years, at which point
this Warrant shall become void and all rights hereunder shall
cease.
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The Holder may
exercise this Warrant, in whole or in part, at any time before the
Expiration Date, upon surrender of this Warrant with the form of
subscription attached hereto duly executed to the Company at its
corporate office located at 4636 University Drive, Suite 275,
Phoenix, Arizona 85034 together with the full Purchase Price for
each Share to be purchased in lawful money of the United States, or
by certified check, bank draft or postal or express money order
payable in United States dollars to the order of the Company, and
upon compliance with and subject to the conditions set forth in
this Warrant.
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Upon receipt of
this Warrant with the form of subscription duly executed and
accompanied by payment of the aggregate Purchase Price for the
Shares for which this Warrant is then being exercised, the Company
shall cause to be issued certificates or other evidence of
ownership, for the total number of whole Shares for which this
Warrant is being exercised in such denominations as are required
for delivery to the Holder, and the Company shall thereupon deliver
such documents to the Holder or its nominee.
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If the Holder
exercises this Warrant with respect to fewer than all of the Shares
that may be purchased under this Warrant, the Company shall execute
a new Warrant for the balance of the Shares that may be purchased
upon exercise of this Warrant and deliver such new Warrant to the
Holder.
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Holder as
Owner. Prior
to due presentment for registration of transfer of this Warrant,
the Company may deem and treat the Holder as the absolute owner of
this Warrant (notwithstanding any notation of ownership or other
writing hereon) for the purpose of any exercise hereof and for all
other purposes, and the Company shall not be affected by any notice
to the contrary. Irrespective of the date of issue and
delivery of certificates for any Shares issuable upon the exercise
of the Warrant, each person in whose name any such certificate is
issued shall be deemed to have become the holder of record of the
Shares represented thereby on the date on which all or a portion of
the Warrant surrendered in connection with the subscription
therefor was surrendered and payment of the purchase price was
tendered. No surrender of all or a portion of the
Warrant on any date when the stock transfer books of the Company
are closed, however, shall be effective to constitute the person or
persons entitled to receive Shares upon such surrender as the
record holder of such Shares on such date, but such person or
persons shall be constituted the record holder or holders of such
Shares at the close of business on the next succeeding date on
which the stock transfer books are opened. Each person
holding any Shares received upon exercise of Warrant shall be
entitled to receive only dividends or distributions payable to
holders of record on or after the date on which such person shall
be deemed to have become the holder of record of such
Shares.
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Transfer and
Assignment. This Warrant may not be sold,
hypothecated, exercised, assigned or transferred except in
accordance with and subject to the provisions of the
Act.
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Method for
Assignment. Any assignment permitted under this
Warrant shall be made by surrender of this Warrant to the Company
at its principal office with the form of assignment attached hereto
duly executed and funds sufficient to pay any transfer
tax. In such event, the Company shall, without charge,
execute and deliver a new Warrant in the name of the assignee
designated in such instrument of assignment and this Warrant shall
promptly be canceled.
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Taxes. The issuance of any Shares upon the
exercise of this Warrant and the delivery of certificates or other
instruments representing such shares or other securities shall be
made without charge to the Holder for any tax or other charge in
respect of such issuance. The company shall not,
however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of any
certificate in a name other than that of the Holder and the Company
shall not be required to issue or deliver any such certificate
unless and until the person or persons requesting the issue thereof
shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has
been paid.
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The Holder
shall have the limited right to join with the Company to register
the Shares in a resale registration statement filed by the Company
with the SEC under the Act including a registration statement filed
by the Company with the SEC on Form S-8. This right to
join with the Company in a registration statement under the Act is
not applicable to a registration statement filed by the Company
with the SEC on Form S-4 or any other inappropriate
form. If, at any time, the Company proposes to file a
registration statement as described in this Paragraph 7.1, it shall
give timely written notice of such proposed filing to the Holder
and its designees at their addresses appearing on the records of
the Company and shall offer to include in any such filing any
proposed disposition of the Shares. Within fifteen (15)
days of receipt of the Company’s notice of filing, the Holder
may request registration of the Shares pursuant to a written
request setting forth the intended method of distribution and such
other data or information as the Company or its counsel shall
reasonably require and such Shares shall be included in the
registration statement under the Act to the maximum extent
permissible.
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In connection
with any registration of its securities, the Company shall supply
the Holder with copies of such registration statement, and of the
prospectus included therein, in such quantities as may be
reasonably necessary for the purpose of the proposed
disposition. The Company will pay all registration
expenses in connection with the registration pursuant to Section
7.1. Such reasonable expenses will include all
registration of filing fees, all fees and expenses of compliance
with securities or blue-sky laws, printing expenses and reasonable
fees and disbursements of counsel for the Company and its
independent certified public accountants. The Company is
not required to pay any fees or expenses of Holder, legal counsel
of the Holder, or accountant or any other advisors.
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The Company and
the Holder shall indemnify and hold harmless each other and their
respective affiliates from and against any loss, liability, claim,
damage and expense (including reasonable attorneys’ fees) to
the extent resulting from any untrue statement or alleged untrue
statement of a material fact contained in any registration
statement pursuant to which the Shares were registered under the
Act, or any amendment thereto, including all documents incorporated
by reference, or from the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make
the statement not misleading; provided, that the obligations of the
Holder to indemnify the Company and its affiliates shall be limited
to the proceeds received by the Holder from the sale of the Shares
pursuant to the registration statement and shall only apply with
respect to the information furnished in writing by the Holder or on
the Holder’s behalf expressly for use in the registration
statement or any prospectus relating to the Shares or any amendment
or supplement thereto. The indemnification required by
this Section 7.3 shall be in a form typical for transactions of
such nature.
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Rights of
Holder. Nothing contained in this Warrant
shall be construed as conferring upon the Holder the right to vote
or consent or receive notice as a stockholder in respect of any
meetings of stockholders for the election of directors or any other
matter, or as having any rights whatsoever as a stockholder of the
Company.
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Covenants of
the Company. The Company covenants and agrees as
follows:
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At all times it
shall reserve and keep available for the exercise of this Warrant
into common stock such number of authorized shares of common stock
as are sufficient to permit the exercise in full of this Warrant
into common stock; and
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All Shares
issued upon exercise of the Warrant shall be duly authorized,
validly issued and outstanding, fully paid and
non-assessable.
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Recapitalization. The number of Shares purchasable on
exercise of this Warrant and the Purchase Price therefor shall be
subject to adjustment from time to time in the event that the
Company shall: (i) subdivide its outstanding shares
of common stock into a greater number of shares, (ii) combine
its outstanding shares of common stock into a smaller number of
shares, or (iii) spin-off a subsidiary by distributing, as a
dividend or otherwise, shares of the subsidiary to its
stockholders. In any such case, the total number of
shares purchasable on exercise of this Warrant immediately prior
thereto shall be adjusted so that the Holder shall be entitled to
receive, at the same aggregate purchase price, the number of shares
of common stock that the Holder would have owned or would have been
entitled to receive immediately following the occurrence of any of
the events described above had this Warrant been exercised in full
immediately prior to the occurrence (or applicable record date) of
such event. An adjustment made pursuant to this Section
9 shall, in the case of a stock dividend or distribution, be made
as of the record date and, in the case of a subdivision or
combination, be made as of the effective date
thereof. If, as a result of any adjustment pursuant to
this Section 9, the Holder shall become entitled to receive shares
of two or more classes of series of securities of the Company, the
Board of Directors of the Company shall equitably determine the
allocation of the adjusted purchase price between or among shares
or other units of such classes or series and shall notify the
Holder of such allocation.
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Merger or
Consolidation. In the event of any reorganization
or recapitalization of the Company or in the event the Company
consolidates with or merges into another entity or transfers all or
substantially all of its assets to another entity, then and in each
such event, the Holder, on exercise of this Warrant as provided
herein, at any time after the consummation of such reorganization,
recapitalization, consolidation, merger or
transfer, shall be entitled, and the documents executed
to effectuate such event shall so provide, to receive the stock or
other securities or property to which the Holder would have been
entitled upon such consumma
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