THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK OF
STARVOX COMMUNICATIONS, INC.
Void after
, 2008
This certifies
that
, or its permitted assigns (the “Holder”), for value
received, is entitled to purchase from STARVOX COMMUNICATIONS,
INC. , a California corporation (the “Company”),
having a place of business at 2202 N. First Street, San Jose,
California 95131 a maximum of
(___) fully paid and nonassessable shares of the Company’s
Common Stock, par value $.001 per share (the “Warrant
Shares”), at a price per share of $
(the “Stock Purchase Price”) at any time or from time
to time up to and including 5:00 p.m. (Pacific time)
, 2008 (the “Expiration Date”), upon surrender to the
Company at its principal office (or at such other location as the
Company may advise the Holder in writing) of this Warrant properly
endorsed with the Form of Subscription attached hereto as Annex
A duly filled in and signed and, if applicable, upon payment of
the aggregate Stock Purchase Price for the number of shares for
which this Warrant is being exercised determined in accordance with
the provisions hereof. The Stock Purchase Price may be paid by
cash, check, wire transfer or by the surrender of promissory notes
or other instruments representing indebtedness of the Company to
the Holder. The Stock Purchase Price and the number of shares
purchasable hereunder are subject to adjustment as provided in
Section 3 of this Warrant.
This Warrant is
subject to the following terms and conditions:
1. EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR
SHARES .
1.1 General . This Warrant is exercisable at the option of
the holder of record hereof, at any time or from time to time, up
to the Expiration Date for all or any part of the shares of Common
Stock (but not for a fraction of a share) which may be purchased
hereunder. The Company agrees that the Warrant Shares shall be and
are deemed to be issued to the Holder hereof as the record owner of
the Warrant Shares as of the close of business on the date on which
this Warrant shall have been surrendered, properly endorsed, the
completed, executed Form of Subscription delivered and payment made
for the Warrant Shares. Certificates for Warrant Shares so
purchased, together with any other securities or property to which
the Holder hereof is
entitled upon
such exercise, shall be delivered to the Holder hereof by the
Company at the Company’s expense within a reasonable time
after the rights represented by this Warrant have been so
exercised. In case of a purchase of less than all the shares which
may be purchased under this Warrant, the Company shall cancel this
Warrant and execute and deliver a new Warrant or Warrants of like
tenor for the balance of the shares purchasable under the Warrant
surrendered upon such purchase to the Holder hereof within a
reasonable time. Each stock certificate so delivered shall be in
such denominations of Warrant Shares as may be requested by the
Holder hereof and shall be registered in the name of such
Holder.
1.2 Net Issue Exercise . Notwithstanding any provisions
herein to the contrary, in lieu of exercising this Warrant in the
manner provided above, the Holder may elect to receive shares equal
to the value (as determined below) of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the
principal office of the Company together with the properly endorsed
Form of Subscription and notice of such election in which event the
Company shall issue to the Holder a number of shares of Common
Stock computed using the following formula:
Where X = the
number of Warrant Shares to be issued to the Holder
Y = the number
of Warrant Shares purchasable under the Warrant or, if only a
portion of the Warrant is being exercised, the portion of the
Warrant being exercised (at the date of such
calculation)
A = the fair
market value of one Warrant Share (at the date of such
calculation)
B = Stock
Purchase Price (as adjusted to the date of such
calculation)
For purposes of
this Section 1.2, the fair market value of each Warrant Share
on the date of calculation shall mean with respect to each Warrant
Share:
(a) if
the exercise is in connection with an initial public offering of
the Company’s Common Stock, and if the Company’s
Registration Statement relating to such public offering has been
declared effective by the Securities and Exchange Commission, then
the fair market value per share shall be the product of
(x) the initial “Price to Public” specified in the
final prospectus with respect to the offering and (y) the
number of shares of Common Stock into which each Warrant Share is
convertible at the date of calculation;
(b) if
this Warrant is exercised after, and not in connection with, the
Company’s initial public offering, and if the Company’s
Common Stock is traded on a securities exchange or The Nasdaq Stock
Market or actively traded over-the-counter:
(1) if
the Company’s Common Stock is traded on a securities exchange
or The Nasdaq Stock Market, the fair market value shall be deemed
to be the product of (x) the average of the closing prices
over a thirty (30) day period ending three days before
date
-2-
of calculation
and (y) the number of shares of Common Stock into which each
Warrant Share is convertible on such date; or
(2) if
the Company’s Common Stock is actively traded
over-the-counter, the fair market value shall be deemed to be the
product of (x) the average of the closing bid or sales price
(whichever is applicable) over the thirty (30) day period
ending three days before the date of calculation and (y) the
number of shares of Common Stock into which each Warrant Share is
convertible on such date; or
(c) if
neither (a) nor (b) is applicable, the fair market value
of each Warrant Share shall be the highest price per share which
the Company could obtain on the date of calculation from a willing
buyer (not a current employee or director) for Warrant Shares sold
by the Company, from authorized but unissued shares, as determined
in good faith by the Board of Directors, unless the Company is at
such time in the process of an Organic Change (as described in
Section 3.3 below), in which case the fair market value of
each Warrant Share shall be deemed to be the value received by the
holders of such stock in connection with such event.
2. RESERVATION OF SHARES . The Company further
covenants and agrees that, during the period within which the
rights represented by this Warrant may be exercised, the Company
will at all times have authorized and reserved, for the purpose of
issue or transfer upon exercise of the subscription rights
evidenced by this Warrant, a sufficient number of shares of
authorized but unissued Common Stock, or other securities and
property, when and as required to provide for the exercise of the
rights represented by this Warrant. The Company will take all such
action as may be necessary to assure that such Warrant Shares may
be issued as provided herein without violation of any applicable
law or regulation, or of any requirements of any domestic
securities exchange upon which the Common Stock may be listed;
provided , however , that the Company shall not be
required to effect a registration under federal or state securities
laws with respect to such exercise.
3. ADJUSTMENT OF STOCK PURCHASE PRICE AND NUMBER OF
SHARES . The. Stock Purchase Price and the number of shares
purchasable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the occurrence of certain events
described in this Section 3. Upon each adjustment of the Stock
Purchase Price, the Holder of this Warrant shall thereafter be
entitled to purchase, at the Stock Purchase Price resulting from
such adjustment, the number of shares o
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