EXHIBIT D TO NOTICE OF ERRATA
Case 2:02-cv-02405-HRH
Document 513-3
Filed 06/11/2008
Page 1 of 67
Visitalk.com
Inc.
Bankruptcy
Plan Distribution
WARRANTS
IN
VI5ITALK CAPITAL Colu0RATI0N
AND
ITS
OPERATING SUBSIDIARIES
CLASS
AGREEMENTS
Agreements
in accorthnce
with Section
5.9 on the Plan and related
information
Booklet
visitalkcÆiiital
an Invesimeni
company
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 2 of 67 Page 1 of 64
VT022 384
SECTION
5.9
IMPLEMENTATION
AGREEMENT
TABLE OF CONTENTS
Page
SECTION
5.9
IMPLEMENTATION AND DEFINITIONS
EFFECTIVE
AGREEMENT AND EXECUTION
BACKGROUND ARTICLE ARTICLE
DATE
II
2.1
CONSIDERATION
PAYMENTS
WARRANT
2.2
UNITS
IN
PARTTICIPATION
THE CREDITRS
TRUST
CLAIM DETERMINATION
2.3TAXES
2.4 INVALIDITY
ARTICLE
III 3.1 3.2 3.3
WAIVER ASSIGNMENT CLAIMS
AND ASSIGNMENT AND RELEASE OF CLAIM
No
ADMISSION
OF WRONGDOING AND AMENDMENTS OF CONSIDERATION
ARTICLE
lv
4.1
MISCELLANEOUS SUPPLEMENTS CO-OPERATION
4.2
4.3
ASSIGNMENT GOVERNING
4.4 NOTICES
4.5
LAW
TO JURISDICTION
4.6 SUBMISSION 4.7 SUCCESSORS 4.8 SEVERABILITY 4.9 4.10 4.11 4.12 4.13 4.14
RELIANCE CONSTRUCTION ADVICE OF COUNSEL COMPLETE
CAPTIONS
AGREEMENT
TRAIL
AMENDMENT
WAIVER
OF JURY
EXHIBITS
TO SECTIOON
5.9
IMPLEMENTATION
AGREEMENT AND EFFECTIVE DELIVERY AGREEMENT
INCLUDING
EXHIBIT
FORM OF EXECUTION WARRANT ACCEPTANCE CLAIM HOLDERS SCHEDULE
PLAN WARRANT AGREEMENT CREDITORS TRUST AGREEMENT AND EXHIBITS
EXHIBIT
EXHIBIT
AND OTHER INFORMATION
37
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 3 of 67 Page 2 of 64
VT022 385
SECTION
5.9
IMPLEMENTATION
PARTIES
AGREEMENT
This
Section
5.9 Implementation
Agreement was
debtor
is
Agreement
proposing June
this
is
made by and between visitalk.com
of the United
States
Inc.
an
Arizona corporation
for the
District
Visitalk
Joint
which
under the jurisdiction
Bankruptcy
Court
of Arizona the
Court
and which
Agreement
as required
by Visitalks
confirmed
and
effective
Second
Plan
of Reorganization
dated
22 2004 the
Plan
and the holders of shares of on the Claim Holder
Visitalks
preferred
stock
Claimants
as Exhibit
in this
whose
name
is
address
and Claim amount and Effective and made
have
appear
Schedule
which
is
part of the Execution. hereto
Warrant and which
Acceptance
Delivery
Agreement
this
Execution
All in the Plan.
Agreement
meanings
attached
integrated Exhibits
part of and with
Agreement.
not otherwise
defined
Agreement
or
its
the same
meanings
as
defined
BACKGROUND
AND DEFINITIONS
A.
Claimants
are
shareholders
of Visitalk
whose
equity
interests
in
accordance
with
the terms of the Plan
were cancelled.
B. successor
VCC
to
as used herein
means
Visitalk
Capital
Corporation
the successor
to
Visitalk under
the Plan
and any
VCC.
the Execution
C. for
itself
VCC
is
acting
all
as
Agent
for purposes
of signing
this
Agreement
and any
related
agreements
and for
the Co-Proponents
under the Plan.
D.
validity
Claimant of which
held
Claims as
as
defined
in Section
3.2
below
against
Visitalk
in
its
Bankruptcy
for
this
Case
the
to
Visitalk Claims
acknowledged
they would
or was pertain
adjudicated
to Visitalk.
by the Court.
The Plan provides
Agreement
address
any such
E.
Creditors
Trust
is
an
entity
formed
in
accordance of
its
with
the Plan
to
pursue or
claims
and causes
of action
owned Code
and held by Visitalk
or
as result
as
of the date
of the
filing
bankruptcy
Title
petition
arising
under the Bankruptcy the Visitalk
of the
filing
by Visitalk for
relief
under
11
of the United
States
Code
Claims.
the Plan concluded
to
F.
Visitalk
interests all
in
proposing of
all Parties
that to
full
and formal
formal
resolution
of any
of Claimants such
Claims
was
in the best
related to
the Plan
and desires
have
agreement
reflecting
transaction
Claims and other related matters
as required
by the terms of the Plan.
G.
To induce
its
Visitalk against
in
to
enter
into are
this
Agreement been
Claimant
is
willing
to
acknowledge
and agree
that
all
of
his her or Plan turn
claims
Visitalk
or have
released based on the terms provided Claims herein and
to
and conditions
provided
in the
in
and
in
this
Agreement
with
exchange for the consideration
all
its
the terms of the Plan
Trust.
and Visitalk
accordance
the Plan has assigned
Visitalk
the Creditors
AGREEMENTS
NOW THEREFORE
provisions contained
Parties in this
in consideration
of the promises
and the mutual
as described
agreements
covenants
to
and
the
Agreement and declare
and the other consideration
as
below
transferred
Claimants the
agree
follows
ARTICLE
EFFECTIVE
DATE AND EXECUTION
Date of the Plan
1.1
Effective
Date.
This
Agreement
is
effective
as of the Effective Visitalk
to
if
there
is
formal
execution
it
by the Claimant
of the Execution
Agreement.
is
must formally accept
of the
this
Execution
Agreement
for
to
be binding. hereto
as
Such Execution
Exhibit B.
Agreement
also deemed
be an acceptance
Plan Warrant Agreement
attached
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
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Page 4 of 67 Page 3 of 64
VT022 386
1.2 shall
Execution
in to
Counterparts.
as
This
Agmement
This
all
may be
executed signature
shall
in
any
number of counterparts
thereon binding as the
each of which
shall
be deemed
constitute
be an original
against any Party whose
appears
and
all
of which
together Execution
one and the same instmment.
shall
Agreement
Parties
become
on any Claimant
signatories.
when
each
Agreement
bear
the signature
of
of the
reflected
hereon
ARTICLE
II
CONSIDERATION
In consideration for
2.1
Payments.
its
assignment
and release of
all
its
Claims
in
favor
of Visitalk
as provided Claimant of
by the terms of the Plan the Claimant acknowledges
its is
will
receive
the following equity
consideration investment
Consideration
which
not being
paid on account
of Claimants
in Visitalk
but rather only
on account
Claims
Warrant
Claimant four
Units.
For each
Units
$20 of Claimants Claims Visitalks Warrant
Unit
in
successor
VCC
will
issue the Subsidiaries
VCC
to
Warrant
plus one Units
each of
VCCs eighteen
17 2004
Operating
cmated under the Plan. Agreement
Units
to
The Warrant
are defined
under the Plan.
dated
Claimant by execution September
of the Execution the Warrant
agrees
be bound
by the Plan Warrant
Agreement
covering
be issued
attached
hereto as Exhibit B.
Participation Creditors Trust equal
to
in the Cmditors dollar amount
Trust.
The
Cmditors
Trust
has issued beneficial
interests
in the
Interest
the even
of the Claimants
Interest
Claims the Subordinated
enclosed with
this
Beneficial Claimant
Units.
Claimant
By
is
accepting also bound governing
the Subordinated
Beneficial Creditors
Units
agreement
of Trust
as
by the Liquidating
the Creditors Beneficial
to
Trust
Agreement
is
and Declaration
attached
the
Ia
all
agrees
that
Agreement
Trust.
The Trust Agreement
are governed
hemto
under the Subordinated from the Creditors
to
Interest
Units
by the Trust Agreement.
Interest sufficient
No payments
all
an Exhibit C. Payments will be made payments under the Plan
the
Trust
holders
of the Subordinated
Beneficial Trust
to
Units
assets
unless
to
Classes
through
under the Plan and the Creditors
for realizing on the with Trust the Plan.
assets
has
the Trustee pay without
Trustees expenses
legal assets
transferred event
the Cmditors
will
Trust
including
in
limitation any of the mmaining
Interest
fees
in
in accordance
In such
the Claimant
participate
distribution
the Cmditor
based on the pro rata
amount of the Claimants
Subordinated
Beneficial
Units.
2.2 reflected Exhibit
Claim Determination.
The Claimant
agrees
that
the amount
of the Claimants
Claim
is
the amount hereto as
on the books and records of Visitalk
of the Execution
as detailed
on the Claim Holder Claim Schedule
attached
Agreement.
2.3
Taxes. agrees
to this
No
to
taxes or other amounts
all
will be withheld
relating to
from the payments made by
without
described
in
Section
2.1
above. Trust
entity
Claimant pursuant
pay any and
taxes
owed
the payments including
VCC VCC
or the Creditors
Agreement.
In the event
any person
or entity
limitation any governmental
or any taxing
authority
challenges
the characterization or
if
it is
of the payments determined Claimant
that
made by
under
this
Agreement
are
or the
tmatment
with
of these
to
payments for tax purposes made
all
withholding
to
or other taxes
due and owing
respect
the payments
under
this
Agreement
successors with
agrees
pay those
amounts and also indenmify and the Creditors
of the payments
costs.
and hold Visitalk
harmless including
VCC
and
of Visitalks associated
and Co-Proponents
under the Plan
Trust
from any and
without
all liability all
the challenge
and any recharacterization
attorneys
limitation
state
and federal taxes
interest penalties
fees and
2.4 invalid
Invalidity. illegal
In the event
court
of competent or
if
jurisdiction such court
determines
that that
Section
3.1
of
this in
Agreement
is
or unenforceable
interest in
in any mspect
determines
the Consideration agrees
to
2.1a was
return
to
paid
on account
of an equity
set
which
Section
the Consideration such determination
units
forth
may 2.1a
have or
been
held by Claimant cancel
Claimant
all
promptly Units
VCC
to
VCC may
some
or
of the Warrant
Interest
issued as related any non cancelled
however
Claimant
may keep
hereunder.
is
the Subordinated In the event
illegal that
Beneficial court
Units
and
Warrant
that will
as the only
Consideration of
this
of competent
jurisdiction such
determines
any other provision
not
affect
Agreement
invalid
or unenforceable
in any respect of
this
determination
the validity of
legality or enforceability of the remaining
provisions
Agreement
and the
remaining
provisions
this
Agreement
will
continue
to
be valid and enforceable.
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
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VT022 387
ARTICLE WAIVER
Assignment and Release
of Claims.
III
AND ASSIGNMENT
of Claimant
3.1
On behalf
Warrant
and Claimants spouse acknowledges
has waived
heirs
affiliates
it
successors executed
and assigns
this all set
by executing
executed
tulle
the Execution the Plan
interest
Agreement
Claimant
and agrees
released
has
Agreement
existing rights forth in the Plan
Agreement
in favor
and
transfentd
and
conveyed
expressly
and
in the Claims
of Visitalk
and
VCC
excluding
the obligations
or
in this
Agreement.
3.2
Claims.
character
Means
any
claim
liability
obligation
legal
or
responsibility
against
or owing the same
by Visitalk
of
any
kind
or description or
regardless liquidated
of the
principle
or theory
upon
which
may be based
accmed
or
whether
known
unknown
or unliquidated
contingent
non-contingent
or absolute insured without
unaccrued
several
asserted or unasserted
disputed or undisputed matured or unmatured or otherwise without
or uninsured joint or limitation any
determined
litigation
or undetermined determinable
and
shall
include
allegation
proceeding damage
negligence or warranty disclosure
strict
including
or other
limitation actual
liability
punitive breach
and consequential
of contract negligent fees and or agreement
damages
breach
loss
penalty
liability
in tort
for any
of representation deceit
interference obligation
with cost
contractual expense
or prospective without
settlement.
relations
misrepresentation
including
or
limitation attorneys
costs
cost of defending
any claim or amount
or cost of any judgment
3.3
No Admission
is
of Wrongdoin. any any local person
state
This Agreement or federal
entity
does
not
constitute
an admission
rule
that
any person
or
entity
who
of
Party
violated or
that
ordinance
in
regulation
mling statute
of decision or wrongdoing.
or principle Claimant
as
common law
or
engaged
any
improper or unlawful
in accord
conduct with
will
not characterize
this
Agreement
or the payment or
entity
of the Consideration
in
this
Agreement
an
admission
or indication
that
any person
engaged
any
improper
or unlawful
conduct
or wrongdoing.
ARTICLE IN MISCELLANEOUS
Supplements
this
4.1
and Amendments.
without the approval herein
to
In accordance
with
the Plan
in
VCC may
cure any
from time
ambiguity
to
time
to
supplement
or
or
amend
Agreement
of any Claimant
that
order
to
or
correct
supplement
to
any provision
contained
may be
defective
or inconsistent
with
that
any
other provisions
herein
or or
make
any
other provisions advice
in regard
matters
or questions
arising hereunder
Visitalk
may deem
necessary
desirable
after
of counsel.
4.2
Co-operation.
if
requested
Claimant
will
provide
reasonable
co-operation of Claimants
at
the expense
of the
requesting of such
Party in supplying
documentation
and other confirmation
Claim and knowledge
and proof
Claim.
4.3
Assignment however
of Consideration. any such assignment
The Claimant
may
transfer and
assign
its
rights
to
any Consideration and federal laws
shall
hemunder
shall rights
or transfer must be
done
in
compliance
with
all state
and
its
not release the Claimant unless such
to transfer
is
from
its
commitments
or exempt
and obligations
registration
hereunder.
The
Claimant
securities
not
transfer
registered
from
under applicable
to
laws
and transferee
agrees
accept
Claimants
commitments
and obligations
related
the Consideration.
4.4 Unless
Notices. otherwise
All notices specified hereunder
in
requests
demands claims and
enclosed
if
other communications here then
hereunder
will
be in
writing.
controlling agreements
with any notice two business
to
mquest
after
it
demand
is
claim
or other or
communication
certified
shall
be deemed
duly
given prepaid
and
days
sent by registered
set to
mail return Agreement
receipt requested unless changed
postage
in
and addressed
the intended
to
recipient as
forth
its
in
the
Execution
writing by the Claimant. request
Notices claim
VCC
must be mailed
headquarters. intended courier claim
Any
Party
at
may
send
set
any
notice
demand
or other communication including personal such
it
hereunder
to
the
recipient
the address
forth above
using any other means mail or electronic duly given
delivery
expedited
messenger service
telecopy
shall
telex ordinary
mail
but no
notice
request
is
demand
by the
or other communication
be deemed
to
have been
unless and
until
actually
received
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
06/11/2008 Filed 07/25/2007
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VT022 388
intended
recipient.
Any
Party
are
may change
to
the address
to
which
notices
Parties
requests notice
demands
claims
and other
set forth.
communications
hereunder
be delivered
by giving
the other
in the manner
herein
4.5
Governing
of the
State
Law.
This Agreement except
as
shall
be governed
by
construed
and enforced
in
accordance
with
the
shall
laws
of Arizona
superseded
by the jurisdiction
of the Bankruptcy Court
Court.
Any
to
disputes
be governed by the Plan the Bankruptcy Bankruptcy
Code.
Court the orders of the Bankruptcy
court
shall
pertaining
the Plan
and the
Venue
if in
state
or federal
be
in the
State
of Arizona
Maricopa
County.
4.6
sitting
Submission
in Maricopa
that also all
to
Jurisdiction.
Each
in any
of the action
Parties
submits
to
the jurisdiction out of or
of
any
state to this
or federal
court
County
Arizona
or proceeding
arising
relating
Agreement
such
court.
and Each
agrees Party
court.
claims not
in respect of the action
to
or proceeding
may be
heard
and determined
relating to this
in
any
agrees
bring
any action or proceeding
any defense
arising out of or
Agreement
of
in any
other
Each
of the Parties waives
of inconvenient
security that
forum
to
the maintenance
any
action
or proceeding respect
so brought
thereto.
and waives
any
bond
surety
or other
might be required
of any other Party
with
4.7 bind
Successors.
All the covenants of
their
and provisions
of
this
Agreement
by or for the benefit of the
Parties
shall
and inure
to
the benefit
respective
successors
and assigns hereunder.
4.8 decision
Severability. will
Should any part of
the
validity
this
Agreement
of
for any any
reason
be declared
portion
invalid
or unenforceable portion will
such
not
affect
or unenforceability
remaining with
which
remaining thereof
remain in force and
is
effect
as
if this
Agreement
Parties
had been
hereto such
that
executed
the invalid portion have executed
eliminated
and
it
hereby
declared
the intention of the including
the Parties
would
the remaining
portion
of
this
Agreement
without
therein
any
part or portion
which
may
for any reason be hereafter
declared
invalid or unenforceable.
4.9
Reliance.
Visitalk
may
as
rely to
on the facsimile or similar transmissions and addresses
of the Claimants
from
Claimant
as
original
signatures
and representations
the names
4.10
that
Construction.
The
to
Parties
hereto
hereby
acknowledge
and agree
will
that
the
rule to fact
of construction
to
the
effect
any ambiguities
are
be resolved against the drafting Party
in
not be applied
the interpretation of
that
this
Agreement.
any portion
No
inference
favor
of or against
any Party
will
be drawn from the
one Party has drafted
hereof
4.11
Advice
to as
of Counsel.
legal
Each
counsel
Party of
hereby
acknowledges
regarding
that
they
are
entifled
to
and have and
legal
been
effects
afforded of
that to this
the
opportunity
consult well
legal as
their
choice
the terms
and conditions
hereby
Agreement
consulted
the
advisability
and propriety thereof
choosing or having
right to
Each
Party
to
further acknowledges hereby
having such
so
with
counsel
of
their
chosen not
raise
consult
waives
any
right
legal
representation representation
it
or
effective
representation proceedings the contents
and any
or of
in
or
rely
upon
the lack
of representation
or
effective that
in any future understands
connection
with
any future claim.
that
it
Claimant
this
further acknowledges
has read and
this
Agreement
and
executes
to
Agreement
knowingly
advice of
its
voluntarily choice.
without
any coercion
or duress
and with the opportunity
obtain
independent
legal
own
4.12
Complete
Agreement
Amendment.
Except as determined
Court
Parties
by the Plan the Trust Agreement
the
its
Bankruptcy
sets
Court the orders of the Bankruptcy
entire
and the Bankruptcy
hereto and
to
Code
all
this
Agreement
and
Exhibits
forth the
understanding
oral
between the
or written with
supersedes matter
shall
prior agreements
arrangements
and
communications
representations respect
to
whether
warranties
respect
the subject or written not be
hereof
No
to
other agreements bind except the
Parties
or other matters
whether
oral
be deemed
or amended
hereto
with or
the subject
matter hereof of the
Parties
This Agreement in
writing.
may
modified
as provided
herein
by
mutual
agreement
4.13 only and
Captions.
shall
The descriptive
affect
headings
of the various of any
Sections
or
parts
of
this
Agreement
are
for convenience
not
the meaning
or construction
of the provisions
hereof
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
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VT022 389
4.14
Waiver
of Jury
Trial.
DUE TO THE COMPLEXITY OF THE TRANSACTIONS CONTEMPLATED
BY
TRIAL BEFORE AGREEMENT THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT JUDGE IS MORE APPROPRIATE THAN TRIAL BEFORE JURY AND HEREBY WAIVE THEIR THIS
TRIAL BY JURY IN ANY SUIT INVOLVING THE INTERPRETATION AND RESPECTIVE RIGHTS TO ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT OR ANY OF THE DOCUMENTS CONTEMPLATED HEREBY AND GRANT THE JUDGE PRESIDING OVER ANY SUCH SUIT FULL POWER AND AUTHORITY TO DETERMINE ALL QUESTIONS OF FACT.
IN
binding
until
WITNESS
WHEREOF
Visitalk
has executed
this
Agreement by
on the date below.
Visitalk.
This
Agreement
is
not
the Execution
Page has be signed returned
and accepted
CLAIMANT deemed
with the terms of the Plan
executed
in
accordance individual
is
VISITALK
Visitalk for
itself
and with each which
Capital
as
Corporation
to
Claimants Execution
specifically
Agreement
hereto.
the successor
Visitalk
and as
made
part
Execution
Agent for the Co-Proponents.
/5/
/5/
By
Date
Its
By
Date
Its
Michael
S.
Williams
Chief
Executive
Officer
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
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VT022 390
EXHIBITS
EXHIBIT
FORM OF EXECUTION WARRANT ACCEPTANCE AND EFFECTIVE
SCHEDULE DELIVERY
AGREEMENT
INCLUDING
CLAIM
HOLDERS
ExECuTIoN WARRANT ACCEPTANCE
Visitalk
AND EFFECTIVE
DELIVERY AGREEMENT
Capital 50th
Corporation St. Suite 130
14647 Phoenix
5.
AZ
or
85044
Dear
Sir
Madam
terms unless defined hemin the Plan
States
A. September confirmed
Capitalized
have
the
same meaning Second
as
defined
in the
warrant
agmement
thted June
effective
17 by
2004
the
Warrant
Agreement
Court
or
in the
Joint
Plan of Reorganization
related that to
22 2004
United
Baiikmptcy
for the
District
of Arizona mpresents
Case
No.
00-13035-PHX-RTB
the
the
Plan
to
Plan
Warrant
of visitalk.com
Inc. the the
Visitalk. Plan
the
The Undersigned
Section
5.9
they have
mceived and mviewed and have had
the
Agmement
Implementation documents.
Agmement
opportunity
ask questions mgarding
terms and
mstrictions
of these
B.
Each
Issuer
is
mquimd under
if
the
Plan
to
issue the
certain
warrants
the Plan Warrants
of
the Plan.
to
various
claimants
are
categorized under
in the
the Plan
in
such
claimants with
meet
terms of Section Warrant
5.9
Such
Plan Warrants
defined
Plan
and governed
accordance
the Plan
Agreement.
C.
The Undersigned Agreement
________________hemby Agreement
and
Plan Warrants
to
tenders
this
Execution Warmnt Acceptance
Corporation
to as
and Effective
Delivery
the Execution
Visitalk
Capital
an Issuer and as the
Implementation
also
Agent
to
for the other Issuers
all
unless an executed issued in
Election Entry
Certificate
Agmement
the Execution
is
attached
hereby
all
elects the
have
the
of
their 5.9
Book
form.
Finally
Agmement
accepts
terms of
Section
Implementation
Agreement.
D.
This undersigned
repmsents
that if
the Execution
this
Agreement
Execution person
is
has been
duly
authorized duly
by
all
necessary
action
on the part of the Undersigned
officer
and
necessary
Agreement
legal
its
has been
executed
by an authorized
or representative Execution
of the Undersigned
is
and such
officer
or repmsentative
of the Undersigned
and
this
Agreement
enforceable
in accordance
with
terms.
E.
If
physical
delivery
of the Plan also sign and along
Warrant
return
certificates
is
desired
please
sign
and
return
BOTH
therein.
this
Execution Agreement
and
the Election
to Certificate
Agreement
set
attached forth
to the Plan
Warrant Agreement
as Exhibit
with
check
for the certificate
issue fee as
BY EXECUTION BELOW THE UNDERSIGNED REPRESENTS THAT THEY HAVE RECEIVED EXECUTED AND REVTEWED THE PLAN WARRANT AGREEMENT THE PLAN THE SECTION 5.9 IMPLEMENTATION AGREEMENT AND ACKNOWLEDGE THAT THEY HAVE EXECUTED AND
RECEIVED EFFECTIVE DELIVERY OF THE PLAN WARRANTS. VTSITALK CAPITAL CORPORATION AND EACH ISSUER IS RELYING UPON THE ACCURACY AND COMPLETENESS OF THE REPRESENTATIONS CONTAINED HEREIN IN COMPLYING WITH ITS OBLIGATIONS.
Claim Holder Accepted and Agreed
Issuer
Acceptance
CLAIM HOLDER
VISITALK
CAPITAL
CORPORATON
Agent
as an Issuer
and as Implementation
for the other Issuers
/5/
/5/
Signatures
all record
holders
should
sign
By
Its
Michael
President
S.
Williams
Date
___________________
2006
Date
2006
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 9 of 67 Page 8 of 64
VT02239
Certificate
of Authorization are being accepted
to be completed
if
the Plan
Warrants
by an Entity
hemby
certify
that
Entity name
of
company
trust partnership
or other form of entity of the
State
is
___________________
entity
organized
and existing under and by virtue of the laws
of
_________ state and
type
is
and
its
tax ID number
_____________________________
federal tax ID or 55
that
and
it
is
currently
in
good
standing
its
charter
in
full
force
and
effect.
further
certify
the
_____________________________ title
and/or
the
____________________ title
are
fully to
authorized effectuate
and empowered
to
make
execute
and deliver any and
further
certify that
all
written
instruments
necessary
or
proper
the authority hereby
confentd.
_______________________________
now
is
name
the __________________________ title further carry
certify that
and _________________________is
now
the __________________________ title
name
officers set
the
forth herein
or any one
of
them
are duly
authorized
by the Entity and
to
execute further
and
that
out the terms of the Execution
Warrant
Acceptance
Delivery obligation
and Effective Agreement
of the
Entity.
Deliveiy has been
Agreement
duly
certify
the Execution
Warrant
Acceptance
legal
and Effective and binding
and validly executed
on behalf
of the Entity and
constitutes
Datedthis
_____
thy
of
__________200_.
______________________________________
Signature of certifying signed
officer
Must
not be
by officer authorized
to
act
Title
of certifying
officer
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 Document 385-6
Filed 06/11/2008 Filed 07/25/2007
Page 10 of 67 9 of 64
VT022 392
CLAIM HOLDER SCHEDULE
The Plan
assignee
Warrants
specified
below
are
only
valid
if
the
specific
named
Claim Holder named
Delivery
herein
or
proper
has executed prior
to
Execution
June
later
Warrant
such
Acceptance
and Effective
Agreement
Execution
Corporation
as
Agreement
agent
15 2006 and
than June
agreement has been
received
by Visitalk Capital
the
of the Issuers
no
25
2006.
Claim Holder
Plan Allowed Claim Plan Class
Issuers
Unit
Warrant Units
Visitalk
Capital
Corporation
Inc. Inc. Inc. Inc. Inc.
VT VT VT VT VT VT VT VT VT VT VT
Billing Services Business
Products
Services Services
Consumer
Financial
Dynamic
Biometric
Systems
International
Corp.
Inc.
Marketing Services Video
Arabic Chinese Services Services Services Services Services Services Services
Inc. Inc. Inc.
Inc. Inc. Inc. Inc. Inc.
Dutch French
VT German VT Hispanos VT VT VT VT
Italian
Services Services Services
Japanese
Inc. Inc. Inc.
Korean
Portuguese
Services
Warrant and one
Unit
consists
of
consist
of one
Warrant
one
Warrant
one
Warrant
one
Warrant
one
Warrant
Warrant
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 11 of 67 Page 10 of 64
VT022 393
EXHIBIT
PLAN WARRANT AGREEMENT
PLAN WARRANT AGREEMENT
ACCEPTANCE AND EFFECTIVE
This Plan Reorganization
DELIVERY REQUIRED
Date of the Second
June
Joint
Warrant
Agreement
Inc.
is
effective
as of the Effective dated
Plan
of
of visitalk.com Warrants
are
and other Co-Proponents
if
22
2004.
This Plan
Warrant
Agreement
and the Plan
Delivery
only valid June
Claim Holder executes
such
Execution Warrant Warrant Acceptance
Acceptance and Effective
and Effective
Delivery
Agreement
is
before
15 2006 and
Execution
Agreement
received
by Visitalk Capital
Corporation
befom June
25
2006.
TABLE OF CONTENTS
Page
PLAN WARRANT AGREEMENT
BACKGROUND ARTICLE ARTICLE ARTICLE ARTICLE ARTICLE ARTICLE VI ARTICLE VII ARTICLE VIII ARTICLE ARTICLE EXHIBITS
ISSUERS COVERED
II III
10 10
11
AND DEFINITIONS THE PLAN WARRANTS
EXERCISE ISSUANCE EXERCISE LIMITATIONS
PERIOD AND TRANSFER
REDEMPTION OF OWNERSHIP
12 12
13
lv
OF PLAN WARRANTS ON EXERCISE OF WARRANT AGENT
14 15 16 17 17 18
RIGHTS AND DUTIES CONTINGENT NOTICES MISCELLANEOUS
WARRANT HOLDER AGENT RIGHTS AND DUTIES OF WARRANT HOLDERS
IX
21
EXECUTION
B-2 CERTIFICATE
BY THE PLAN WARRANT AGREEMENT WARRANT ACCEPTANCE AND EFFECTIVE DELIVERY AGREEMENT OF AUTHORIZATION SCHEDULE
CERTIFICATE
21
22
23 24
CLAIM HOLDER
FORM
D-1
OF
WARRANT
FORM
OR WARRANT UNIT NOTICE AGREEMENT
CERTIFICATE
25
ASSIGNMENT
26
FonM OF
E-2
SUBSCRIPTION
AND EXERCISE
CERTIFICATE
27 28
CERTIFICATE
OF AUTHORIZATION OF AUTHORIZATION AGENT AGREEMENT
FORM OF ELECTION TO
F-2 CERTIFICATE
29
30 31
FORM OF CONTINGENT
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 12 of 67 Page 11 of 64
VT022 394
PLAN WARRANT AGREEMENT
This Plan Plan
Warrant
Agreement
the
Inc. to this are
Agreement
Agreement
is
effective
as of the Effective dated June
Date of the Second the
Joint
of Reorganization
as
of visitalk.com
and other Co-Proponents
pursuant
this to
22 2004
valid
Plan.
However
The Claim
this
Holders
defined
below
are
party
the operation
of the Plan.
if
Agreement
executes
and the Plan Execution. Warrant
June
Warrants Warrant
which
the subject of
Agreement
are only
Claim Holder
Acceptance and Effective
and Effective
Delivery
this
Delivery
Agreement
is
before
June
15 2006 and
such
Execution
VCC
Agent
Acceptance
Agreement Agreement
received
by Visitalk
Capital
Corporation
to
before
this
25
2006.
as
VCC
is
executing as defined
and other related agreements
for the other Issuers
necessary
implement
Agreement
are
an Issuer
below and
as an agent
the Implementation
all
of which
controlled
by VCC.
BACKGROUND
The subject matter of
AND DEFINITIONS
Plan Warrants hereto
as
A. Plan
this
Agreement
is
the Series
through
listing
issued in accordance Exhibit
with
the
the Plan Warrants for each of the companies
such
entity
on the
attached
and
their
successors
each
B.
hereinafter
an Issuer orjointly Issuers.
Capitalized
terms
used but not otherwise
defined
in this
Agreement
have
the same
meaning
as
defined
in
the Plan.
C.
to
The Issuers are
certain exemptions of the Plan
entities
formed or authorized
in the Bankruptcy
under the Plan were Co-Proponents
are
of the Plan Warrants
and
pursuant the
securities
provided
Code
authorized
to
issue the Plan or Shares
and upon
exercise laws.
Warrants
Shares without
registration
of the Plan
Warrants
under applicable
D.
The term
Share Claim
refers
to
one
share
of
common
claim
stock
of an applicable
Issuer.
E. such
The term
Claim.
refers
to
an allowed
under the Plan and the term Claim Holder
is
the owner
of
F.
The maximum numbers of Plan
Warrants
to
be issued for each
Claim are specified
in the Plan
G.
The registered
holder
of any Plan
Warrant
is
hereinafter
referred
to
as
Claim Holder.
H.
The Issuers and the Claim Holders
with the Plan each
desire
six
to
specify
certain
matters
regarding
the Plan
Warrants. designated
in
In as
I.
accordance
Issuer will issue
series
of Plan
Warrants
each
as
Series
Warrants
Warrants
Warrants
refers to all
Warrants
Warrants
and
Warrants
as group.
further described
Article
The
term Plan Warrants
of the Series of Plan
Warrants
I.
Each
Warrant but not
Plan Warrant
Agreement
thereafter at
entitles
the Claim Holder
after
to
purchase
subject
to
the to
terms and
the
conditions
set
forth
in this
Plan
any time on or
the
September
is
17
the
2004
and
of
prior
close of business Plan Warrant stock
on the Expiration
Date
is
Date
unless
Plan Warrant
earlier
subject
Call or
the
Expiration
extended
by the Issuer one
security as
fully
paid and non-assessable thereto
I.
sham of an Issuers
price
common
Common Stock
as
or
equivalent
of
any
successor
at
purchase
equal
to
the
Exercise Price
adjusted
unless lowered
by
the
Issuer
set forth
in Article
J.
Pursuant
to
the Plan each
Issuer
will
initially
act
as
its
own
in
agent
their
and perform the duties enumerated
sole
in
this
Agreement
the Warrant
to act
Agent
its
but each
Issuer
to
may determine
as
its
discretion hereunder.
to
engage
another
to
qualified person
as
to
Warrant
Agent
perform the duties and
activities
Any
reference
Warrant
Agent
as
refers
an individual Issuer
apply.
acting
own Warrant Agent
or the appointed
Warrant
Agent
of
the Issuer
the case
may
10
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 13 of 67 Page 12 of 64
VT022 395
AGREEMENTS
NOW
covenants
THEREFORE
in consideration
of the above
recitals
the following the receipt
representations
is
warranties the
and conditions
and other good
and valuable
Execution.
consideration
of which
acknowledged
Delivery
Claim Holders by executing form of which
is
the Execution
this
Warrant
each
Acceptance
and Effective
Agreement
included
within
booklet agree
with
Issuer as follows
ARTICLE THE PLAN WARRANTS
Each
Plan
1.1
Warrant
1.4 all
has
at
specified
Exercise
Price which
is
is
the amount purchase
as adjusted
from time
Issuer.
to
time
as
provided
in Section
below
or any
which
Claim Holder
entifled
to
one Share
in
from an
of
Claim number of
Holder
Shares.
may
exercise
number of
Series of Plan
Warrants
resulting
the purchase
whole
1.2
Initial
Exercise
prices.
Each
Series of Plan
Warrants
has an
initial
Exercise
Price
as
set
forth below.
Each
Series
Warrant
an
Warrant Warrant Warrant Warrant
has an
initial
Exercise
Price of $2.00.
Each
Series
Warrant
has an
initial
Exercise
Price of $2.00.
Each
Series
Warrant
has an
initial
Exercise
Price of $3.00.
Each
Series
Warrant
has an
initial
Exercise
Price of $3.00.
Each
Series
Warrant
an an
Warrant Warrant
has an
initial
Exercise
Price of $4.00.
Each
Series
Warrant
has an
initial
Exercise
Price of $4.00.
1.3
Number
the number Pursuant
of Plan of each
to
Warrants.
The Claim Holder Schedule
Warrants in
their to sole are
attached
to
hereto as Exhibit
specifies
by
Issuer
Series of Plan
be delivered
discretion
any
Claim Holder for
of issuing Units with
specified
Claim under
as
the Plan.
the Plan an Issuer
has the option as Plan
the Plan
Warrants
Plan
of
Warrant
Unit.
The Plan Warrants
one Series
to
on Exhibit Warrant
presented
Warrant
Series Unit
each unit consisting one
of Series
one Series one Series
Plan Warrants
Warrant
Warrant.
one Series
Warrant
Plan
one
Warrant
Warrant
and
Pursuant
the Plan in the future
in their sole
Warrant
may
consist
any
combination
of the
as determined
by each Issuer
discretion.
1.4
Adjustments
shall
in
Number
of Plan
Warrants
and Exercise
Price.
If prior
to
the exercise
of any Plan
Warrant
of the services
if
an Issuer
have
effected
into
one or more stock
the Plan of Shares Warrants subject
splits-ups stock
are to
dividends without
or other increases or reductions
number of Shares
or property increase then
which
exercisable Plan
receiving
at
compensation
discretion
in
money
the number
Warrant
may
the
sole
of the Issuer
net
shall
have been
payable
in
effected
in the number for the Exercise outstanding
of outstanding Price be
Shares be proportionately reduced reduced
Pursuant
to
increased
and the cash
shall
consideration have
per share
proportionately
or ii if and the cash
net reduction consideration
been effected
per Share
the number
Shares be proportionately
increased. any
payable
sole
its
for the Exercise
Price be proportionately
the Plan an Issuer
in
may
in
its
discretion
and without
further shareholder
elect to
approval upon
increase or decrease
its
the number
of shares
of
common
stock
outstanding
keep the terms of any of
Price and of Shares
Plan
Warrants of Plan
outstanding Warrants
unchanged
ii
or iii
proportionately proportionately Exercise
increase or decrease increase or decrease
the Exercise the number
keep
the number
unchanged
Warrants
issuable
upon
exercise
of the Plan
and keep the
Price unchanged.
1.5
Discretionary with
Reduction
in
the Plan
to
Warrant
Exercise
Price.
An
Issuer
may
in
its
sole
discretion
and in
subject
accordance
to this
the Plan from time including
time
and
at
any time reduce
in
the Exercise
Price.
Price of any
Plan
Warrant
Agreement
temporary
reduction
the Exercise
11
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 14 of 67 Page 13 of 64
VT022 396
ARTICLE
EXERCISE
II
PERIOD REDEMPTION
extended as provided the Plan Warrants will expire
2.1
Plan
Warrant
Exercises.
Unless
individually
herein
at
500 p.m.
MST
on August
31 2006 the Warrant
Warrants hereunder Expiration
Expiration
Date.
any time
after
All Plan
may be
Date.
exercised
at
the Effective
Date of
this
Agreement
and prior
to
the Warrant
After any Warrant provided
in
Expiration Plan
Date
Warrants
unless such
will
date
is
extended
all rights
by an Issuer and except
of the Claim Holders
as
cease.
Article VII
any
unexercised
be void
and
shall
2.2 with
Redemption.
the Plan
At
any
time or
prior
all
to
any
Expiration
Date
each Issuer
Warrants choose
lot to
in
its
sole
discretion per Plan
and
in
accordance
may redeem some
Price. which
of any
then
outstanding
Plan
for $0001
Warrant
of Series of
all in
Redemption
Plan
In accordance
with
the Plan an Issuer pro
rata
may
redeem
all
or any portion
fairly
Warrants
sole
may be selected on Upon an
of
its
basis
by random
to
or as otherwise
determined
shall
the
Issuers
discretion.
Issuers
determination
to all
redeem any Plan Warrants Claim Holders which
as shall
such
Issuer
give
notice
Redemption
specified date of such
Notice
Redemption Date and
determination Notice
to
affected
and the Claim Holders
not be
herein. rights less
shall
have days
the time
in the Redemption
the Redemption
exercise any Plan
Date
Warrant
than
twenty
20
from the
Notice
provided limited
Redemption
Article VII Issuer than
shall
after
expiration
of the period but only
to if
during
which
Upon expiration may be granted to an
as
of the agent
under
the
less
the Contingent pay
to
Agent
Price
one has been
appointed
by an Issuer
shall
provided
to
in
Article VII
the Redemption
the Claim Holders.
less
An
$1.00
Issuer due
to
not be
required
pay any amount be retained
$1.00
any
Claim Holder and any amounts
than
any
Claim Holder
shall
by an
Issuer.
2.3
Extension
to
of the Warrant time
Expiration
Date.
An
Issuer
may
in
its
sole
discretion
and in accordance Warrant
with for any
with period
the of
Plan from time
time. Notice
to
and
at
any time extend of Plan
the Warrant changes
Expiration
shall
Date of any Plan
the Claim Holders
Warrant
be provided
in accordance
Article IX.
ARTICLE
ISSUANCE
III
AND TRANSFER may be
pursuant
OF OWNERSHIP
form i.e.
3.1
Form
of Plan
Warrant.
The Plan
Warrants
issued
to
in either 3.2
uncertificated below.
Book Entry
or in registered
and
certificated
form
Form.
as determined
Section
Book
Agent Agent
calendar
shall shall
Entry
If
Plan
Warrants of Plan
are issued in uncertificated
form
Book Entry
Claim Holder.
after
the Warrant
maintain report
records
of the number
to
Warrants
owned
by each registered
sixty
The Warrant
of each any
ownership positions
if
the Claim Holders
no more than
60
days
the end
shall
year or
requested
in
writing by Warrants such
Claim Holder each calendar
as exercises records or
transfers.
quarter.
The report
shall
indicate
transactions
to
regarding appearing
the Plan
The
report
be delivered
by regular mail
elect
the address
on
Warrant
option
Agents
as
for any
to
it
Claim Holder.
mail.
Claim Holder may
delivery not
to
by
e-mail
or other similar delivery
an
alternative
regular
At any time an Issuer determines and deliver the warrants
to
maintain Holders
Book
at
Entry
to
for the Plan
Warrants
the Issuer
may
certificate
the Claim
no cost
the Claim Holders
for the
certification.
Certificated Form.
shall
If
in certificated
form
the warrant
certificates Certificates
the Warrant
shall
Certificates
be
substantially
in the form attached of an Executive
seal. If
hereto
as
Exhibit D.
Warrant
shall
be signed
corporate
by
seal
or or
shall
bear
the facsimile signature of the Issuers as the signature countersigned corporate of an
Officer
of each
Issuer and
bear
the Issuers placed
facsimile
any person whose
shall
facsimile signature ceased
to
has been
on any Warrant
Certificate
Certificate
is
officer
of an Issuer
have
be an
officer
before
the Warrant issued and
issued and as
if
delivered
the Warrant
to
Certificate officer.
shall
be countersigned
Certificate
delivered
with
the
to
same
bear
effect
the
officer
had not ceased of any person
to
be an
at
Any Warrant
even though
is
may be
signed
by
or made
the facsimile signature proper of
this officer
who
the actual date
Certificate
of the preparation such
of the Warrant
Certificate officer
shall
be
date
after
of an Issuer
If
sign the Warrant
person
was not an
upon
the
Agreement.
Warrant
Agent
other than
shall
the Issuer
appointed
and Warrant by the Warrant
is
Certificates
are issued
shall
the appointment purposes
Warrant
Certificates
be manually The Warrant
countersigned
Agent
and
not be
valid for any
unless so countersigned.
Agent
hereby
authorized
to
countersign
any
Warrant
12
Case 2:02-cv-02405-HRH Case 2:02-cv-02405-HRH
Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 15 of 67 Page 14 of 64
VT022 397
Certificate
that
is
properly
issued and
deliver the same
to or in accordance
with
the properly
documented
and
verified instruction of any registered
Claim Holder.
3.2
Delivery
in
of Plan
Warrant.
The Claim Holder
shall
select
the method
of delivery
of the Plan
Warrant
as
set
forth
Section
3.lb above.
Book
Acceptance
have
all
Entry
Form.
The Claim Holder by executing form of which
form.
is
and delivering
attached only hereto
as
the Execution. Exhibit
Warrant
elects to
and Effective
Warrants
Delivery issued
the Plan Delivery
Agreement in Book Entry
under
hereby
Effective
to
Agreement Agent
act
and themby
for them
electing
By executing Book Entry for
the Execution
Warrant
Acceptance
also
and
elect
the Plan
Warrants
as
set
the Claim Holders
in
have
Contingent
certain
limited circumstances
forth
Article
VII.
Certificated Form.
i.e. certificated
If
the Claim Holder desires in addition
to
to
mceive physical
delivery
of the Plan
Warrants
form
such
Claim Holder must
as
set
executing
also
the Execution execute
Warrant
Acceptance
to will
and
Effective
Certificate
Delivery
Agreement
forth
in
Section
.2a above
F.
and deliver the Election
in certificated
Agreement
Units consisting
for
as attached of one
hereto as Exhibit
The Plan Warrants
one
requested one
form
be
issued Warrant
forth
in
Warrant
one
Warmnt
for the
Warrant
such Plan
Warmnt
in
one
Warrant
and one
fee set
each
Issuer. to
To mceive
Certificate to
certificates
Plan Warrants electing
act
Claim Holder
Warrants
shall
remit an issuance
in
the Election
rights
Agreement. having
Claim Holders Agent
certificated
form also waive
as
set
any of the
forth
in
and benefits
VII.
the Contingent
for them
under certain limited circumstances
Article
3.3 Certificate satisfactory
Transfer or any
to
of Ownership.
The Warrant ownership change
the Warrant
Agent upon
may
duly
mgister
the transfer of of appropriate
any
outstanding
Warrant
in
Book
Entry
the receipt
instruments
of transfer duly
form
both
the Issuer and
if
Agent Agent
appears
executed opinions
by the Claim Holder or
authorized
in
attorney Issuers attached
in
including
sole
requested
by the Warrant
legal
and signature verification as required
the
discretion. as
An
Assignment
Form
on the back
of the
Form
of Plan
Warrant
Certificate
Certificate
shall
hereto
Exhibit D. delivered
Upon any
to
registration
of transfer
either
new Warrant
Certificate to
be issued
or
the name Entry
of and
shall
the transferee the
and the surrendered and notice
customary
shall
Warrant be given
shall
be canceled
Holder.
ii
new
Book
be made
is
milecting
transfer
the
new Claim
In the event such Plan
certificated
warrant prior
to
submitted
for transfer
transfer.
cash
fee for the transfer must accompany
Warrant
the execution
of the
3.4
Mutilated
or Missing Warrant
Certificates.
If
any
Warrant
as
to
Certificate fully
is
mutilated
lost stolen
or
as
destroyed in
their sole
an Issuer and the Warrant
discmtion
Agent
shall
may
in
on such
of
to
terms
indemnify
them or otherwise
include of such
as
they
may
impose
which
the case
mutilated
Warrant
Certificate
the suntnder mutilation loss
thereof and upon
theft
the receipt issue
of evidence
satisfactory
an Issuer and the Warrant
of
like
Agent
or destruction
substitute
Warrant
Certificate
denomination and tenor Warrant
Certificates shall
the Warrant
Certificate
so mutilated reasonable
lost stolen or destroyed. regulations
Applicants
for
substitute as
its
comply
with
such
other
and pay any reasonable
charges
an Issuer or the Warrant
sole discretion.
Agent
may
pmscribe
including
costs of an indenmity
bond
Plan
if
required
by an Issuer in
3.5
No
Fractional
Warrants
or Shares.
to
An
to
Issuer
as
shall
not be
mquired
in Section
to
issue fractions of Plan or otherwise.
total
Warrants of issuing
upon
any
the reissue of Plan
fractional
Warrants
due
shall
any adjustments up
described
full
1.4 If
In
lieu
interest an Issuer
round
in
the nearest of
Plan
Warrant.
the
Plan
Warrants
to issue
surrendered
fractional
by exercise would
result
the issuance
fractional
Share an Issuer
will
shall
not be mquired the nearest
full
Sham
sole
but rather option
the aggregate
number of Shares
value
issuable such
be rounded
up
to
sham.
At
an Issuers
Shares
an Issuer may pay the cash
of any
fractional
intemst
in lieu
of issuing
additional
or Plan
Warrants.
ARTICLE IN
EXERCISE
OF PLAN WARRANTS
Warrant
4.1
Method
of Exercise. or in
Subject
to
Article
any
Plan
any Warrant
shall
Certificate
Book
Entry
form may be exercised
either
evidenced or any multiple of Plan Warrants Plan Warrants on or before the Expiration Date. the Warrant
by
be exercised by the Claim Holder by
the Plan duly Warrants with
surrendering
to
Agent the Warrant
is
Certificate
evidencing Exhibit
Subscription showing
and Exercise
the number
Notice
form of which
being
attached or
hereto
if in
as
completed
and executed
of Plan
Warrants
exercised
ii
Book
13
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Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 16 of 67 Page 15 of 64
VT022 398
Entry
form
by delivering
of
to
the Warrant Entry Plan
Agent
Warrants
Subscription being
and Exercise
Notice
duly
completed
and executed
to
showing
the number
Book
certified
exercised.
In addition funds
the Claim Holder must deliver transfer Plan
to in
the Warrant
Agent
by
check
or other immediately payable
to
available
or wire
U.
S.
dollars
Funds
for each
as the Warrant Share
to
Agent
may
elect
the order
of the Issuer of such Notice
relating
Warrant
certificated
the Exercise Plan
Price
be purchased.
Plan Warrants
to
Both the Subscription
are
and Exercise
to as
Warrant
Notice
and
Book
Entry
hereinafter
at
referred
an Exercise
of the
Notice.
Issuer.
The form of Exercise
may be changed
4.2 Price Delivery for the Plan
from time
time
and
any
time in the discretion
of Shares. Warrants
Upon
that are
receipt
of the Exercise
to
Notice
j4
payment
in
Good Funds
Agent
shall
of the
full
Exercise
the subject
the Exercise Shares
shall in
Notice the Warrant
with
requisition the instructions of the Shares
issuance
of the required
Shares and deliver such
certificate
accordance
to
the properly
documented
to
the Claim Holder.
are
The
for the Shares
to
be deemed
holder
be issued
and the person
as
whom
issued of record properly
If
shall
be deemed
Exercise
have become and payment
respect
to
of record
of the Shares Price in
of the date
of the surrender
shall last to
of such occur.
executed
Notice
of the Exercise the Shares
Good Funds
to
whichever
the
however
Shares
the books
are
of an Issuer with
shall
to
shall
be deemed
of such
be
closed
as
person
whom
which
such such
issued
be deemed
next be
have
become
record
holder
after
Shares
of the date
on
books of the Issuer
surrendered
shall
open
whether
before on or be canceled.
the Expiration
Date.
All Warrant
Certificates
upon
exercise
of Plan
Warrants
shall
4.3 are
Unexercised exercised
Warrants
single
if
less
than
all
the Plan
Warrants
evidenced
by
Warrant
Certificate
or Entry
Book
Entry
upon
occasion
until
the Expiration
shall
Date
new Warrant
delivered
to
Certificate
or
Book
for the
balance
of the Plan
Warrants with
not so exercised
transfer
be issued and
given
or recorded
in the Claim Holders
name
4.4
or in accordance
instructions properly
by the Claim Holder.
Escrow. deposit
their
Upon
Warrant on Once
the exercise
or conversion Price
of
any
Plan
Warrant
the Warrant established
Agent
if
not the Issuer
shall
promptly Issuer and
will
the payment
of the Exercise
at
into
an escrow account
by mutual
in
agreement
of an
Agent
federally insured
to
commercial bank.
such funds have
All funds
deposited
the escrow
account
to
be disbursed
funds.
weekly
basis
are
an Issuer once
to
been
determined
by the Warrant
shall to
Agent
to
be
collected
the funds
determined
be collected
to
funds the Warrant
of the Plan
Agent
take
actions
issued.
cause
the certificates
representing
the Shares
issued pursuant
the exercise
Warrants
be
4.5
Expenses.
Except for Section be paid by each
4.6 expenses These
incurred
by the Warrant
including prior
to
Agent
while
acting
in
the capacity
to
as
Warrant
Agent
will
Issuer.
expenses
delivery
to
of Share
certificates to
the
shareholder
will
be deducted
supply
from the Exercise
detailed account
Price
submitted
relating
distribution
of funds
the
Issuer.
The
of the each
Warrant
Agent
will
statement
the number given
of Shares
to
exercised
names
registered payment.
Claim Holders
and the net amount of funds
remitted
will be
the applicable
Issuer with
4.6
Fees.
At the time of exercise of any Plan Warrant
In the event
any
cost for Share fees and
issuance
to
and
transfer
fee
is
to
be paid Agent
by the Claim Holder.
if
the Claim Holder must pay such
to
fails
remit
to
same
the Warrant
to
agreed
to
by the Issuer
may
elect
have
such
fee deducted
from the proceeds
prior
distribution
an
Issuer.
ARTICLE
LIMITATIONS
ON EXERCISE
the Claim Holders
shall
its
5.1
Limit
Securities if
of Exercise.
The Claim Holder Commissions
to
together
rules
with
affiliates
entitled to
as
such
term
any
is
defined
in the
and Exchange
giving
effect
and regulations
not be
Affiliates
exercise
Plan
in
Warrant
of 4.99%
after
such
exercise
Issuer.
the Claim Holder and
would
beneficially the Shares
shall
own
excess
of the outstanding
Shares
its
of an
For purposes
of the foregoing
calculation
its
beneficially the
owned
by
Claim Holder and
issuable
Affiliates
or acquired of such
that
by the Claim Holder and Warrant
with respect
to
Affiliates
include
is
number of Shares
upon
exercise
Plan
which
exercise
the determination of the remaining
being
made
but
shall
exclude of any
to
the number of Plan Warrants
Shares
would
be issuable upon
nonits
exercised
Affiliates
portion
issued by the Issuer conversion
and beneficially owned and
to
by such
Claim Holder and
of the unexercised or exercise of
this
and subject
portion
limitation on other
herein.
or exercise subject
ii exercise
or conversion
or
unconverted
to
of any
securities
of an Issuer
as set
limitation on conversion sentence for purposes
Securities
analogous
the limitation contained ownership
shall
Except
in
forth in the preceding with Section
paragraph Act of 1934
as
beneficial
be calculated
accordance
13d
of the
Exchange
amended
the Exchange
Act.
14
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Document 513-3 385-6
06/11/2008 Filed 07/25/2007
Page 17 of 67 Page 16 of 64
VT022 399
5.2
Claim Holder Representation. by such
Each
Exercise giving with
Notice
effect to
executed such
by
Claim Holder Notice
of 4.99% of such
shall
constitute
representation beneficially
Claim Holder that
after
Exercise
in
such
Claim Holder will not
Shares of
own as
determined
in accordance
this
Article through
excess
of the outstanding
an Issuer and ii the Claim Holder will not have number of Shares
begimiing
is
acquired of Shares
exercise
Plan
Warrant
or otherwise
at
that
sixty
when added
to
the number ending
beneficially
owned
by the Claim Holder
date of exercise during the of such
sixty
the
of the
60
day period
on and including
of the Issuer
the applicable
Plan
Warrant
in excess
of 4.99%
of the outstanding the thte of
Shares
following
the exercise
60
day period
ending
on and including
exercise.
5.3
Shams
Outstanding.
For purposes
of
this
Article
in determining Shares
the number
as
of the outstanding
Shares
site
of
an Issuer
the Claim Holder time
as
may
is
rely
on the number of outstanding
Issuer under the Exchange
to
reflected
on an Issuers
web
or
ii at
such
an Issuer
reporting
filed
Act
as reflected
in an Issuers
in
its
most recent
annual quarterly or current announcement
outstanding with respect or other
shall
mport
pursuant
setting
the Exchange
Act
or iii as
reflected
most recent public
notice by an Issuer
forth the number
effect to
of Shares of such
outstanding. Plan
The number of
including the exercise
Shares
to
be determined
determination
after
is
giving
exercises
Warrant
which
this
being
made
by the Claim Holder.
5.4 this
Waiver. Article
in
its
An
Issuer
in
their
sole
discretion
may waive
the ownership and
its
exercise
in
limitations
imposed by
to
in sole
whole
or in part upon including
receipt
if
by the Claim Holder of
legal
undertaking
form acceptable
applicable
an law
Issuer
discmtion
necessaiy
opinions
to
fully
comply
with
all
securities
reporting
requirements.
ARTICLE VI RIGHTS AND DUTIES
Third
OF WARRANT AGENT
third
6.1
Party
Warrant Warrant
Agent.
If
an Issuer appoints
the appointment
party
Warrant
Agent
will
which
only
it
may do
upon
of
this
in
its
sole
discretion following
and such
terms and
Agent by
accepts
all
such
Warrant
Agent
accept
the Plan
conditions
shall
of which
an Issuer and every
Claim Holder by acceptance
Warrant
Agreement
be bound
Statements
Certificates
contained
in
this
Agmement
of the those
that
and
in
the Warrant
Certificates
if
such
Warrant
are issued
shall
be taken
as statements except
Issuer.
The Warrant
Agent
assumes no responsibility for
or any action taken or
to
the correctness taken
of any of these Agent.
statements
describe
the Warrant
Agent
be
by the Warrant
The Warrant
Issuers covenants contained in
Agent
this
shall
not be or
responsible
in
for any
failures
of an Issuer
to
comply
with
any of an
Agreement
the Warrant
Certificates.
The Warrant
counsel for
its
Agent
may
consult
at
any time with counsel
shall
satisfactory
to
it
who may
to faith
also
be
to
applicable
Issuer
and the Warrant
Agent
incur
no
liability
it
or
responsibility
an Issuer or
any Claim Holder in respect of any action taken
with the opinion or the advice of such
suffemd or omitted by
the Warrant
hereunder
shall
in good
and in accordance
reasonable care
in
counsel provided
of such counsel.
Agent
have
exercised
the selection
and continued
employment
The Warrant
any action taken
in
Agent
shall
incur
no
liability
or
responsibility
to
an Issuer or
to
any
Claim Holder for
reliance
or instmment believed
by
it
document waiver consent order certificate or other paper upon any notice resolution and to have been signed sent or presented to be genuine by the proper party or parties.
An
the Warrant governmental
this
Issuer
agrees
to
pay
this
to
the Warrant
to
Agent
reasonable
compensation Agent
for
all
all
services mndered
by
Agent
in
the execution
of
Agreement
of any kind
reimburse nature
the Warrant
for
expenses taxes and
in the execution the Warrant for
this
charges
and
all
other charges as
result
in
incurred
by the Warrant
or bad
Agent
of
Agreement
it
and to except
against
of
Warrant
Agents
negligence
faith indemnify fees
Agent
and save
harmless
any
and
all liabilities
including
judgments costs and counsel
Agreement.
15
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Document 513-3 385-6
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Page 18 of 67 Page 17 of 64
VT022400
The Warrant
to
Agent
to
shall
be under no obligation
unless an Issuer
to
institute
any
action
suit
or
legal shall
proceeding furnish the
or
take
any
other action with
likely
involve
security
expense
or one
or more expense
Claim Holders
that
Warrant
with such
Agent
reasonable or
legal
and indemnity
for any costs and
this
may be
not
affect
incurred
in connection of the
action
suit
proceeding.
However
under
proceeding
provision
shall
the power
Warrant
security
Agent
or
to
take
such All
action
rights
as the Warrant
Agent
this
may
consider
proper whether
with
or without
any such
enforced
indemiiity.
of action
Agreement
or under any
Certificates
of the Plan
Warrants
may be
thereof
at
by the Warrant
Agent
without
the possession
of any of the Warrant action
suit
or the production
any
trial
or other proceeding brought Holders in as
its
relative
thereto
and any such
or proceeding
shall
instituted
by the Warrant
ratable
Agent
shall
be
name
as Warrant
Agent
or
and any recovery
ofjudgment
be for the
benefit
of the Claim
their
respective
rights
interest
may
appear.
The Warrant
Agent
and any shareholder
or other
director
officer
or employee or become
of the Warrant
Agent
may
as
buy
sell
or deal
in
in
any of the Plan
Warrants
securities
of an Issuer
pecuniary
interested
in any
act
transaction
fully
which
as
and fmely Agent
an Issuer may be interested or contract with or lend money to an Issuer or otherwise though it were not Warrant Agent under this Agreement. Nothing herein shall preclude
in
the
Warrant
from acting
any
other capacity
for an Issuer or for any other
legal
entity.
6.2 with
Successor
Warrant
Agent.
Any
or any party
to
corporation corporation or any
into
which
the Warrant
Agent
may be merged
trust
or converted
to
or
which
it
may be
shall
consolidated
shall
resulting from any merger conversion succeeding hereunder event or
to
or consolidation business
filing
which
the Warrant
Agent
be
corporation
the corporate
of the of any
is
Warrant
Agent
be the successor
party
its
the Warrant
hereto.
Agent
such
without
if
the execution
or
paper
or any further act of the Warrant countersign successor
or the
parties
In any
the name
original
of the Warrant
Agent
changed
Agent
or
successor
Certificates
may
adopt
the countersignature
of the
Warrant Agent
Agent
and may
of the
the Warrant Agent.
either
in the name
of the predecessor
Warrant
or in the name
Warrant
6.3
Appointment
its
of
New
this
Warrant
Agent. with
Warrant
or without
shall
Agent
may
effect
resign
or be
discharged notice
by the applicable
in writing such
to
Issuer from
duties under date
thirty
Agreement
resignation prior
to
cause by one
take
party
giving
the other
shall
and by giving be sent
at least
when
such days
or discharge so
which
unless for cause
notice
30
the date
specified.
If
Warrant
as
its
Agent
shall
resign
be discharged
or
shall
or
shall
otherwise
to
become
incapable Agent.
of acting
an
Issuer
may
elect
to
act
own Warrant Agent
fails to
appoint
successor
the Warrant
If
an Issuer
make
such
election
or appointment of
its
within
period then
to
of
thirty
30
days
after
it
has been
to
notified in writing of the resignation Court
in
or incapacity
Warrant
of
Agent
the Bankruptcy
Phoenix
Arizona
for the appointment
successor
Claim Holder may apply the Warrant Agent.
any
Pending Bankruptcy Warrant named
appointment
shall
of
successor
to
the Warrant
Agent
Agent.
either
by the Issuer or by the
the successor
originally to
Court each Issuer
shall
carry
out the duties
of the Warrant duties and
After appointment
as if
it
Agent
be vested Agent
with without
the same powers further
at act
rights
responsibilities
had been
transfer
as the Warrant
or deed
and the Warrant
it
Agent
shall
deliver and
the
successor
Warrant
Agent
any property
act
the time
held by
as
the Warrant
Agent
or
and execute
transfer.
and deliver any
further assurance
conveyance
or deed
necessary
for effecting
the delivery
Failure the resignation
to
give any notice
provided
for
in this
Section
6.3
shall
not
affect
the
legality
or
validity
of
or removal of the Warrant
Agent
or the appointment
of the successor
Warrant
Agent.
ARTICLE VII CONTINGENT
Claim Holder Agent. and electing
act
CLAIM HOLDER AGENT
Warrant and Effective
elect also to
7.1
Contingent
By
the execution for the Plan
of the Execution
Acceptance
Delivery
Agreement
agent
Book
Entry
Warrants
the accepting
Claim Holders
have
an additional Agent
for them only
under the limited circumstances the Contingent
Delivery
and
in
the manner specified
in the Contingent the delivery hereto as of
Agreement
Warrant
Warrants
attached
hereto as Exhibit
Agent.
If
Claim Holder executing
elects to
Execution
the Plan
Acceptance
in accordance
and Effective
with
Agreement
to
however
Certificate
receive
as
physical attached
the terms of the Election
Agreement
16
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VT022401
Exhibit
the electing
to
Claim Holder waives Agent
any
of
its
rights
and benefits
to
having
the Contingent
Agent
act
for
them pursuant
the Contingent
Agreement.
7.2 before
rights
General
Duties
of the Contingent
Agent. specified
In the event in
to
Claim Holder
fails
to
exercise
Plan
Warrant
have the
to
an Expiration
specified
Date or lapse of date Agent
Redemption
act
Notice the Contingent
Agent
shall
in the Contingent
to
Agmement
rata to
for the Claim Holder with of
all
limitations
and with
Plan Warrants.
duty
the Claim Holder
mmit any benefits pro
the Claim Holders
similarly affected
7.3
Subsequent
Termination Delivery
of Contingent
Agent.
Subsequent
to
the execution
elect to
of the Execution the Contingent
Warrant Agent Date of the
Acceptance Agreement
applicable
and Effective
Agreement
writing.
any Claim Holder may
terminate before
by notifying an Issuer in
Plan Warrant.
Any
such
notice
must be received
the Expiration
7.4 duty
to
No Duty
do
so.
to
Appoint
Contingent
Agent.
An
Issuer
may
are
elect
to
appoint
Contingent
all
Agent
but has no
to
The terms of the Contingent
Agent
Agmement
controlling
regarding
issues pertaining
the
Contingent
Agent.
ARTICLE VIII RIGHTS AND DUTIES
of Claim Holders.
OF CLAIM HOLDERS
8.1
Rights
No
equity
Claim Holder
as
such
shall
have
any
to
rights
as
shareholder
of
any
Issuer
in this their
either
at
law or
or
in
and the
rights
of the Claim Holders
if issued.
are limited
those
to
rights
expmssly provided an Issuer and
Entry
Agreement Warrant
as
the
Warrant