Free Other Notice - District Court of Arizona - Arizona

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

Document 385-6

Filed 07/25/2007

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
INVALIDITY

2.3TAXES
2.4

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
NOTICES

4.4
4.5

GOVERNING
SUBMISSION SUCCESSORS SEVERABILITY

LAW
TO JURISDICTION

4.6 4.7 4.8 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

Document 385-6

Filed 07/25/2007

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
Plan

Court

and which

Agreement

as required

by Visitalks

confirmed

and

effective

Second

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 the

appear

Schedule

which

is

part of the hereto

Execution.

Warrant and which

Acceptance

Delivery part of

Agreement
this

Execution
All in the Plan.

Agreement
meanings

attached

integrated Exhibits

and with
as

Agreement.

not otherwise

defined

Agreement

or

its

same meanings

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.
Execution and any

C. for
itself

VCC

is

acting
all

as

the

Agent

for purposes

of signing

this

Agreement

related

agreements

and for

the Co-Proponents

under the Plan.

D.
validity

Claimant of

held

Claims as
as

defined or

in Section

3.2

below

against

Visitalk

in

its

Bankruptcy
for
this

Case

the
to

which
such

Visitalk Claims

acknowledged
they would

was

adjudicated
to Visitalk.

by the Court.

The Plan provides

Agreement

address

any

pertain

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
to

F.

Visitalk
interests all

in

proposing of
all Parties

Plan concluded
the Plan

that to

full

and formal
formal

resolution

of any

of

Claimants Claims was
such transaction

in the best
related to

and desires

have

agreement

reflecting

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

Claimant

is

willing

to

acknowledge

and agree

that

all

of

his her or Plan turn

claims

Visitalk

or

have been

released

based on the terms and conditions
herein
to

provided

in the
in

and
in

this

Agreement
with

exchange for the consideration Plan has assigned
all
its

provided Claims

and the terms of the Plan and Visitalk
Trust.

accordance

the

Visitalk

the Creditors

AGREEMENTS

NOW
provisions

THEREFORE
in this Parties

in consideration

of the promises

and the mutual
as described

agreements

covenants
to

and
the

contained

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

Document 385-6

Filed 07/25/2007

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 of

the following

consideration investment

Consideration

which

not being

paid

on account

Claimants equity

in Visitalk

but rather only

on account

Claims

Warrant
Claimant four

Units.

For each
Units plus Units

$20 of Claimants Claims Visitalks one Warrant
Unit
in

successor

VCC

will

issue the Subsidiaries

VCC
to

Warrant

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

agrees

be bound

by the Plan Warrant

Agreement

covering

Warrant

be issued

attached

hereto as Exhibit B.

Participation Creditors Trust equal
to

in the

Cmditors

Trust.

The

Cmditors

Trust

has issued beneficial

interests

in the
Interest

the

even dollar amount of the Claimants Claims the Subordinated
Beneficial Creditors
Interest

Beneficial

Units.
Claimant

By
is

accepting also

the Subordinated

Units

enclosed

bound

by

the Liquidating

Trust

Agreement
is

with this agreement Claimant and Declaration of Trust the attached

Ia

agrees

that

Agreement

governing

the Creditors Beneficial
to

Trust.

The Trust Agreement
are

hemto

as

under the Subordinated from the Creditors
to

Interest

Units

governed

by the Trust Agreement.
Interest sufficient

an Exhibit C. Payments No payments will be made

Trust

holders

of the Subordinated

Beneficial Trust
to

Units
assets

unless
to

Classes

through

under the Plan and the Creditors
for realizing with Trust

has

all payments under the Plan all the pay the Trustee

Trustees expenses
legal assets

on the

assets

transferred event

the

Cmditors
will

Trust

including
in

without

limitation any of the

fees
in

in accordance

the Plan.

In such

the Claimant

participate

distribution

mmaining

the

Cmditor

based on the pro rata

amount of the Claimants

Subordinated

Beneficial

Interest

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
all

amounts will be withheld
taxes

from the payments payments
including

described

in

Section

2.1

above. Trust
entity

Claimant pursuant or

pay any and

owed

relating

to

the

made by
without

VCC VCC

or the Creditors

Agreement.

In the event

any person

or entity of the

limitation

any governmental
this

any

taxing

authority

challenges

the characterization or
if
it is

payments
that

made by

under

Agreement
are

or the

tmatment
with

of these
to

payments for tax purposes payments made
all

determined Claimant

withholding
to

or other taxes

due and owing

respect

the

under

this

Agreement
successors with

agrees

and hold Visitalk
harmless including

VCC

and

of Visitalks associated

and Co-Proponents

pay those amounts and also indenmify under the Plan and the Creditors Trust
of the

from any and
without

all liability all

the challenge

and any recharacterization
attorneys fees

payments

limitation

state

and federal taxes

interest penalties

and

costs.

2.4 invalid

Invalidity. illegal

In the event in

court

of

competent jurisdiction
or
if

determines

that that

Section

3.1

of

this in

Agreement

is

or unenforceable

on account

of

an equity
set

interest in

any mspect which may have
Section

such

court

determines

the Consideration agrees
to

2.1a was
return
to

paid

been

held

by Claimant some
or

Claimant
all

promptly Units

VCC
to

the Consideration such determination
units

forth

2.1a

or

VCC may

cancel

of the

Warrant
Units

issued as related any

however

Claimant

may keep
hereunder.
is

the Subordinated In the event
illegal that

Beneficial court of

Interest

and

non

cancelled

Warrant
that will

as the only

Consideration of
this

competent jurisdiction
in

determines

any other provision
not
affect

Agreement

invalid

or unenforceable

any respect
of
this

such

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

Document 385-6

Filed 07/25/2007

Page 4 of 64
VT022 387

ARTICLE WAIVER
Assignment and Release
of Claims.

III

AND ASSIGNMENT
of Claimant

3.1

On behalf
Warrant

and Claimants spouse acknowledges
has

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

waived and

transfentd

and

conveyed
expressly

and

in the Claims

of Visitalk

VCC

excluding

the obligations

or

in this

Agreement.

3.2

Claims.
character

Means

any

claim

liability

obligation
legal

or

responsibility

against

or

owing

by Visitalk

of

any

kind

or description or

regardless liquidated

of the

principle

or theory

upon

which

whether

known

unknown
or

or unliquidated or

contingent

non-contingent

same may be based accmed or absolute or
the or

unaccrued
several

asserted or unasserted

disputed

undisputed matured or unmatured
or otherwise without

insured without

uninsured joint or

determined
litigation

undetermined

determinable

and

shall

include

allegation

proceeding damage
negligence or
strict

including
or other

limitation actual
liability

punitive breach

any and consequential
of contract negligent fees or

limitation

damages
breach

loss

penalty

liability

in tort

for any

agreement

of representation deceit

warranty

interference obligation

with cost

contractual expense

or prospective without
settlement.

relations

misrepresentation

disclosure

including
or

limitation attorneys

and

costs

cost of defending

any claim or amount

or cost of

any judgment

3.3

No Admission
is

of any

Wrongdoin.
local person
state

This

Agreement
ordinance
in

does

not

constitute

an admission
rule

that

any person

or

entity

who
of

Party

violated or
that

or federal
entity

regulation

mling statute

of decision or wrongdoing.

or principle Claimant
as

common law

any

or

engaged payment
entity

any

improper or unlawful
in accord

conduct with

will

not characterize

this

Agreement

or the or

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 of
that

with

the
in

Plan
to

VCC may
cure any

from time
ambiguity

to

time
to

supplement
or

or

amend

Agreement

any

Claimant

order

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
or transfer

may

transfer

and assign
compliance

its

rights

to

any Consideration and federal laws
shall

hemunder
shall rights

must be done and obligations

in

with

all state

and
its

not release the Claimant unless such
to transfer
is

from

its

commitments
or

hereunder.

The

Claimant
securities

not

transfer

registered

agrees

accept

Claimants

commitments

exempt from registration and obligations related

under applicable
to

laws

and transferee

the Consideration.

4.4 Unless

Notices. otherwise

All notices specified hereunder
in

requests

demands claims and
enclosed
if

other here then

communications with any notice

hereunder

will

be in

writing.

controlling agreements

mquest demand
after
it is

claim

or other or

communication
certified

shall

be deemed

duly

given prepaid

and

two business
to

days

sent

by registered
forth
its

mail return Agreement

receipt requested unless

postage
in

and addressed

the intended
to

recipient as

set to

in

the

Execution

changed
send
set

writing

by the Claimant.

Notices claim

VCC

must be mailed

headquarters. intended courier claim

Any

Party
at

may

any

notice

request using

demand

or other including

communication
personal

hereunder

to

the

recipient

the address

forth

above

any other means

delivery

expedited

or other

mail or electronic telex ordinary mail but no such messenger service telecopy communication shall be deemed to have been duly given unless and until

notice
it

request
is

demand
by the

actually

received

Case 2:02-cv-02405-HRH

Document 385-6

Filed 07/25/2007

Page 5 of 64
VT022 388

intended

recipient.

Any

Party
are

may change
to

the address

to

which

notices
Parties

requests notice

demands
in the

claims

and other
set forth.

communications

hereunder

be delivered

by giving

the other

manner herein

4.5

Governing
of the
State

Law.

This

Agreement
as

shall

be governed

by

construed of the

and enforced Bankruptcy
Court

in

accordance

with

the
shall

laws

of

Arizona

except

superseded

by the jurisdiction

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

to

Jurisdiction.

Each
in any

of the action

Parties

submits

to

the jurisdiction out of or

of

any

state to this

or federal

court

Maricopa
all

County

Arizona

or proceeding

arising

relating

Agreement
such
court.

and Each

agrees Party
court.

that also

claims not

in respect of the action
to

or proceeding

may be

heard

and determined

in

any

agrees

Each

of the Parties

so brought
thereto.

and waives

to this Agreement in any other arising out of or relating any action or proceeding waives any defense of inconvenient forum to the maintenance of any action or proceeding that might be required of any other Party with respect any bond surety or other security

bring

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 for any

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

reason be hereafter declared

invalid or unenforceable.

4.9

Reliance.

Visitalk

may
as

rely to

on the facsimile or similar transmissions names and addresses
of the Claimants

from

Claimant

as

original

signatures

and representations

the

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 hereby

acknowledges
any
right

having such

so

with

counsel

of

their

chosen not
raise

consult

waives

legal

representation representation
it

or in

effective

representation proceedings the contents

and any
or of
in

or

rely

upon

the lack

of representation further

or

effective that

has read

any and understands
without

future

connection

with

any
that

future
it

claim.

Claimant
this

acknowledges

this

Agreement

and

executes
to

Agreement

knowingly
advice of
its

voluntarily choice.

any coercion

or duress

and with the opportunity

obtain

independent

legal

own

4.12

Complete Court
entire

Agreement
the orders

Amendment.
of the

Except as determined
Court
Parties

by the Plan the Trust Agreement

the
its

Bankruptcy
sets

Bankruptcy

and the Bankruptcy
hereto
to

Code
all

this

Agreement agreements
other bind except

and

Exhibits

forth the

understanding
oral

between the
or written with

and supersedes
matter
shall

prior

arrangements

and

communications
representations respect
to

whether
warranties

respect

the subject or written not be

hereof

No
to

agreements
the
Parties

or other matters This in

whether

oral

be deemed
or

hereto

with or

the subject

matter hereof of the
Parties

Agreement

may

modified

amended

as provided

herein

by

mutual

agreement

writing.

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

Document 385-6

Filed 07/25/2007

Page 6 of 64
VT022 389

of Jury Trial. DUE TO THE COMPLEXITY OF THE TRANSACTIONS CONTEMPLATED TRIAL BEFORE AGREEMENT THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT JUDGE IS MORE APPROPRIATE THAN TRIAL BEFORE JURY AND HEREBY WAIVE THEIR 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. 4.14

Waiver

BY

THIS

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

Document 385-6

Filed 07/25/2007

Page 7 of 64
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 Warrant
States

A. September confirmed

Capitalized

have

the

same meaning Second

as

defined

in the

warrant

agmement
thted June

effective

17 by

2004
the

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 and
the

The Undersigned
Section
5.9

they have

mceived and mviewed and have had
the

Agmement
mgarding

Implementation documents.

Agmement

opportunity

ask questions

terms

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

Election Entry

Certificate

Agmement
the Execution

is

attached

hereby
all

elects the

have
the

of

their 5.9

issued in

Book

form.

Finally

Agmement

accepts

terms of

Section

Implementation

Agreement.

D.

This undersigned the part of the

repmsents

that if

the Execution
this

Agreement
Execution person
is

has

been

duly

authorized duly

by

all

necessary

action

on

Undersigned
of the

and

necessary

Agreement
legal
its

has

been

executed

by an

authorized

officer

or representative Execution

Undersigned
is

and such

officer

or repmsentative

of the

Undersigned

and

this

Agreement

enforceable

in accordance

with

terms.

E.

If

physical

delivery

of the also

Plan Warrant and
return

certificates

is

desired

please

sign

and

return

BOTH
therein.

this

Execution Agreement

and

sign

the

Election

to Certificate

Agreement
set

attached forth

to the

Plan

Warrant Agreement

as Exhibit

along

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

Document 385-6

Filed 07/25/2007

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
that

and

it

is

currently

in

good

standing

its

charter

ID or 55
the _____________________________ title and/or the ____________________ title
all

in

full

force

and

effect.

further

certify

are

fully to

authorized effectuate

and empowered

to

make

execute

and deliver any and
further
certify that

written

instruments

necessary

or

proper

the authority hereby

confentd.

_______________________________

now

is

name
the

__________________________
title

and _________________________is

now

the

__________________________
title

name
officers set

further carry

certify

that

the

forth herein

out the terms of the Execution

Warrant

any one of them are duly authorized by the Entity to execute Deliveiy Acceptance and Effective Agreement and certify further
or Delivery obligation

and
that

the Execution of the Entity

Warrant and

Acceptance
legal

and Effective and binding

Agreement
of the
Entity.

has

been

duly

and validly executed

on behalf

constitutes

Datedthis

_____

thy

of

__________200_.

______________________________________
Signature of certifying
officer

Must

not

be signed

by officer authorized

to

act

Title

of certifying

officer

Case 2:02-cv-02405-HRH

Document 385-6

Filed 07/25/2007

Page 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

Billing Services Business

Products
Services Services

Consumer
Financial

Dynamic

Biometric

Systems

VT International Corp. VT Marketing Services Inc. VT Video Services Inc. VT Arabic Services Inc. VT Chinese Services Inc. VT Dutch Services Inc. VT French Services Inc. VT German Services Inc. VT Hispanos Services Inc. VT Italian Services Inc. VT Japanese Services Inc. VT Korean Services Inc. VT Portuguese Inc. 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

Document 385-6

Filed 07/25/2007

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

PERIOD REDEMPTION ISSUANCE AND TRANSFER OF OWNERSHIP
EXERCISE

12 12
13

lv

OF PLAN WARRANTS ON EXERCISE OF WARRANT AGENT

LIMITATIONS

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

Document 385-6

Filed 07/25/2007

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
as

received

by Visitalk

Capital

Corporation
to

before
this

25

2006.
as

VCC

is

executing as defined

and other related agreements an agent
for the other Issuers

necessary

implement

Agreement which
are

an Issuer

below and

the Implementation

all

of

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

under the Plan were Co-Proponents
are

of the Warrants

Plan and pursuant

provided

Bankruptcy

Code

authorized

to

issue the Plan or Shares

exercise laws.

Warrants

Shares without

registration

of the Plan

Warrants

and upon the under applicable securities

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

desire
six

to

specify

certain

matters

regarding

the Plan

Warrants. designated
in

In as
I.

accordance

Plan each

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
the

and conditions

set

forth

in this

Plan

any time
the

on or

September
is

17
the

2004

and
of

prior

close of business Plan Warrant stock

on the Expiration
Date
is

Date

unless

Plan Warrant paid

earlier

subject

Call or

the

Expiration

extended

by the Issuer one
security as

fully

and non-assessable
at

sham of an Issuers
price

common

Common Stock
as

or

equivalent

of

any

successor
I.

thereto

purchase

equal

to

the

Exercise Price

adjusted

unless lowered

by

the

Issuer

set forth

in Article

J.

Pursuant

to

the

Plan each

Issuer but

will

initially

act

as

its

own

agent
their

and perform the duties enumerated
sole

in

this

Agreement

the Warrant
to act

Agent
its

each Issuer may determine in
to

discretion hereunder.

to

engage

another
to

qualified person

as
to

Warrant

Agent

perform the duties and
as
its

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

Document 385-6

Filed 07/25/2007

Page 12 of 64
VT022 395

AGREEMENTS

NOW
covenants

THEREFORE

in consideration

of the

above

recitals

the following the receipt of

representations

warranties the

and conditions

and other good
the

and valuable
Execution.

consideration

which

is

acknowledged
Delivery

Claim Holders by executing form of which
is

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

as adjusted

from time
Issuer.

to

time

as

provided

in Section

below
or any

which

Claim Holder

entifled

to

purchase resulting

one Share
in

from an
of

Claim number of

Holder
Shares.

may

exercise

number of

Series of Plan

Warrants

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

of Plan of each
to

Warrants.

The Claim Holder Schedule
Warrants in
their to sole are

attached
to

hereto as Exhibit

specifies

by

Issuer

number

Series of Plan

be delivered
discretion

any Claim Holder for of issuing Units with

specified

Claim under
as

the Plan.

Pursuant

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
the

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

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 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 of Shares
effected in the

Warrant

may

the

sole

of the Issuer

net

shall

have been
payable
in

number of outstanding
Price be

Shares be proportionately reduced reduced
Pursuant
to

increased

and the cash
shall

consideration have

per share the

for the Exercise

proportionately

or ii if and the cash
the

net reduction consideration

been effected
per Share

number outstanding
Price

Shares be proportionately
increased.

payable
sole
its

for the Exercise

be proportionately

Plan an Issuer
in

may

in

its

discretion

and without

further shareholder
elect to

common

stock

outstanding

proportionately proportionately Exercise

increase or decrease increase or decrease

approval upon any keep the terms of any of its Plan Warrants the Exercise Price and keep the number of Plan
the

increase or decrease

the

number of shares of unchanged
or

outstanding Warrants

ii
iii

unchanged
Warrants

number

of Shares

issuable

upon

exercise

of the Plan

and keep the

Price unchanged.

1.5

Discretionary with the

Reduction

in

the Plan
to

Warrant

Exercise

Price.

An

Issuer

may

in

its

sole

discretion

and in
subject

accordance
to this

Plan from time

time

and

at

any time reduce
in

the Exercise
Price.

Price of any

Plan

Warrant

Agreement

including

temporary

reduction

the Exercise

11

Case 2:02-cv-02405-HRH

Document 385-6

Filed 07/25/2007

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 provided
in

Article

Date unless such date is extended any Warrant Expiration Plan Warrants will be void and all rights VII any unexercised At any time prior
or
all

of the

by an Issuer and except as Claim Holders shall cease.

2.2 with the

Redemption.

to

any

Expiration

Date

each Issuer
Warrants
to

in

its

sole

discretion per Plan

and

in

accordance

Plan may redeem some Price. which

of any with

then

outstanding

Plan

for

$0001
all

Warrant
of Series of
all in

Redemption
Plan

In accordance

the pro

Plan an Issuer may choose
rata

redeem

or any portion
fairly

Warrants
sole

may be selected on Upon an
of
its

basis

by random
to

lot

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

shall

have days

the time

in the

Redemption

the Redemption
exercise any Plan

Date
Warrant

be

less

than

twenty

20
to

from the

Notice

provided limited

herein. rights

Upon

expiration granted provided
to

of the

Redemption
Article VII Issuer than
shall

after

expiration

of the period but only
to if

during has

which

may be
Issuer
as

an agent
in

under VII the

the Contingent pay
to

Agent
Price

one

been

appointed

by an
shall

Article

the

Redemption

the

Claim Holders.
less

An
$1.00

Issuer due
to

not be

required

$1.00

any

Claim Holder and any amounts

than

any

Claim Holder

shall

pay any amount less be retained by an

Issuer.

2.3

Extension
to

of the time

Warrant
at

Expiration

Date. the

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

any

time extend
of Plan

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.
of the

as determined

Section

Book
Agent Agent
calendar
shall shall

Entry

If

Plan

Warrants

are issued in uncertificated

form

Book Entry
Claim Holder.
after

the

Warrant

maintain report

records

number of Plan Warrants
to

owned

by each registered
sixty

The Warrant

ownership positions
if

the

Claim Holders

no more than

60

days

the
shall

end of each
indicate any

year or

requested

in

writing Warrants

by
such

Claim Holder each calendar
as exercises records or
transfers.

quarter.

The report
shall

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 the

Warrants

the Issuer

may

certificate

the

Claim

no cost

Claim Holders

for the

certification.

Certificated
shall

Form.

If

in certificated

form

the warrant

certificates Certificates

the Warrant
shall

Certificates

be

substantially

in the of

form attached

hereto

as

Exhibit D. Issuer

Warrant and
shall

be signed
corporate

by
seal

or or

shall

bear

the facsimile signature of the Issuers as the signature countersigned corporate of

an Executive
If

Officer

of each

bear has

the Issuers

facsimile

seal.

any person whose
shall

facsimile signature ceased
to

been placed
before the

on any Warrant Warrant
Certificate

Certificate
is

an

officer

of

an Issuer
the

have

be an

officer

issued as
if

and delivered

Warrant
to

Certificate officer.

shall

be countersigned
Certificate

issued

and delivered
signed

with or

the
to

same
bear

effect

the

officer

had not ceased of any person
to

be an
at

Any Warrant
even though
is

may be
of the

by

made

the facsimile signature proper of
this officer

who

the actual date
Certificate

of the preparation such

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 Warrant
purposes

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

Document 385-6

Filed 07/25/2007

Page 14 of 64
VT022 397

Certificate

that

is

properly

issued

and deliver the same to or in accordance Claim Holder.

with

the properly

documented

and

verified instruction

of any registered

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.

Warrant
elects to

and Effective
Warrants

Delivery issued

the Plan Delivery

Agreement in Book Entry
them under

Exhibit

hereby

Effective
to

Agreement Agent
act

and themby
for

electing

By executing Book Entry for

the

Execution Warrant
the
in

Acceptance
also

and
elect

the Plan

Warrants
as
set

Claim Holders
Article
VII.

have

Contingent

certain

limited circumstances

forth

Certificated
i.e. certificated

Form.

If

the

Claim Holder desires
in addition
to

to

mceive physical
the

delivery

of the Plan

Warrants

form

such

Claim Holder must
as
set

executing
also

Execution

Warrant

Acceptance
to will

and

Effective
Certificate

Delivery

Agreement

forth

in

Section

.2a above
F.

execute

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 Plan

Warrant
such Plan

Warmnt
in

one

Warrant

and one
fee set

each

Issuer. to

To mceive
Certificate to

certificates

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 and the Warrant by 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
if

Agent Agent
appears

executed opinions

by the Claim Holder or

authorized
in

attorney Issuers attached
in

including
sole

requested

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 of

Exhibit D.

Upon any
to

registration

of transfer

either

new Warrant
Certificate to

be issued
or

the

name
Entry

and delivered be made
is

the transferee the

and the surrendered and notice
customary
shall

Warrant be given

shall

be canceled
Holder.

ii

new

Book

shall

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
loss

thereof and upon
theft

the receipt issue

of evidence

satisfactory

an Issuer and the Warrant
of
like

Agent

mutilation

or destruction

substitute

Warrant

Certificate

denomination and tenor Warrant
Certificates shall

the

Warrant
with

Certificate

so mutilated reasonable costs of

lost stolen or destroyed. regulations

Applicants

for

substitute as
its

comply

such

other

and pay any reasonable

charges

an Issuer or the Warrant
sole discretion.

Agent

may

pmscribe

including

an indenmity

bond
Plan

if

required

by an Issuer in

3.5

No

Fractional

Warrants

or Shares.
to

An

Issuer

shall

not

be mquired

to

issue fractions of Plan or otherwise.
total

Warrants of issuing

upon
any

the reissue of Plan
fractional

Warrants

due
shall

interest

an Issuer

in Section as described any adjustments round up to the nearest full Plan Warrant.
in

1.4 If

In

lieu

the

Plan

Warrants
to issue

surrendered
fractional

by exercise would

result

the issuance

of

fractional

Share an Issuer
will

shall to

not

be mquired
full

Sham
sole

but rather option

the aggregate

number of Shares
value of

issuable

be rounded up
intemst

the nearest

sham.

At

an Issuers
Shares

an Issuer may pay the cash

any

such

fractional

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

by

be exercised by the Claim Holder by
the Plan duly Warrants with

surrendering

to

Warrant

Agent the Warrant
is

Certificate

evidencing Exhibit

Subscription showing

and Exercise
the

Notice

form of which
being

attached or

hereto
if in

as

completed

and executed

number of Plan Warrants

exercised

ii

Book

13

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VT022 398

Entry

form
the

by delivering

to

the

Warrant

Agent
Warrants

Subscription being

and Exercise

Notice
the

duly

completed

and executed
to

showing
the

number of Book Entry Plan Agent by
certified

exercised.

In addition funds

Claim Holder must deliver
transfer Plan
to in

Warrant

check

or other immediately payable
to

available

or wire

U.

S.

dollars

Funds
for

as the

Warrant
to

Agent

may

elect

the order

of the Issuer of such Notice
relating

Warrant
certificated

the Exercise Plan

Price

each Share

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 the
are

of the required

Shares and deliver such
certificate

accordance
to

the properly

documented
to

Claim Holder.
issued of record properly
If

The

for the Shares
to

be deemed
holder

be issued
of the

and the person Shares
as

whom

shall

be deemed
Exercise

have become and payment
respect
to

of record

of the date

of the surrender
shall last to

of such occur.

executed the
are

Notice

of the Exercise the Shares

Price in

Good Funds
to

whichever
the

however
Shares

books of an Issuer with
issued
shall

to

shall

be deemed
of such

be

closed
as

person

whom
which

such such

be deemed
next

have

become

record

holder
after

Shares

of the date All

on

books of the Issuer
surrendered

shall

be open

whether

before on or be canceled.

the Expiration

Date.

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
the

the exercise

or conversion Price

of

any Plan

Warrant

the

Warrant

Agent

if

not the Issuer

shall

promptly Issuer
will

payment Agent

of the Exercise
at

into

an escrow account

established

by mutual
in

agreement of an escrow account Agent
to to

and

Warrant on Once

federally insured
to

commercial bank.
such funds have

All funds

deposited

the

be disbursed
funds.

weekly

basis
are

an Issuer once
to

been

determined

by the Warrant
shall 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.

Warrant

Agent

will

shareholder

will

Except for Section 4.6 expenses incurred by the Warrant Agent while acting in the capacity be paid by each Issuer. These expenses including delivery of Share certificates to the be deducted from the Exercise Price submitted prior to distribution of funds to the Issuer. The
supply detailed account statement
relating to

as

Warrant

Agent

will

the

number of Shares
to

exercised

names

of the each

registered payment.

Claim Holders

and the net amount of funds

remitted

will

be given

the applicable

Issuer with

4.6

Fees.

At the time of exercise of any Plan Warrant
In the event the
to

any

cost for Share fees

issuance
to

and

transfer

fee

is

to

be paid Agent

by the Claim Holder.
if

Claim Holder must pay such have
such fee deducted

and

fails

remit
to

same

the

Warrant
to

agreed

to

by the Issuer

may

elect

from the proceeds

prior

distribution

an

Issuer.

ARTICLE
LIMITATIONS

ON EXERCISE
Claim Holders
shall
its

5.1

Limit
Securities if

of Exercise.

The Claim Holder Commissions
to

together
rules

with

the

affiliates
entitled to

as

such

term
any

is

defined

in the

and Exchange
giving
effect

and regulations Claim Holder and

not

be

exercise

Plan
in

Warrant
of

after

such of

exercise

the

Affiliates

would

beneficially the Shares
shall

own

excess

4.99% of the outstanding by

Shares
its

an

Issuer.

For purposes

of the foregoing

calculation
its

beneficially the

owned

Claim Holder and
issuable

Affiliates

or acquired

by the Claim Holder and

Affiliates

include

is being upon exercise of such Plan Warrant with respect to which the determination exercise of the remaining nonmade but shall exclude the number of Shares that would be issuable upon exercised portion of any Plan Warrants issued by the Issuer and beneficially owned by such Claim Holder and

number of Shares

its

Affiliates

and subject
portion

to

limitation other
herein.

on

conversion of

or exercise

and
to

ii

exercise

or conversion

of the unexercised or exercise of
this

or

unconverted
to

of any

securities

an Issuer subject

limitation sentence

on conversion
for purposes
Securities

analogous

the limitation contained ownership
shall

beneficial

Except as set forth in the preceding be calculated in accordance with Section

paragraph Act of 1934
as

13d

of the

Exchange

amended

the Exchange

Act.

14

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VT022 399

5.2

Claim Holder Representation. by such

Each

Exercise giving with

Notice
effect to

executed such

by

Claim Holder Notice
of

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

4.99% of the outstanding
Plan

an Issuer and ii the Claim Holder will not have number of Shares
begimiing
is

acquired

exercise

of such

Warrant

or otherwise
at

that
sixty

when added

to

the

number of Shares beneficially owned on and including
of the Issuer the applicable

by the Claim Holder
date of exercise during the of such
sixty

the

of the of

60

day period

ending

Plan

Warrant

in excess

4.99% of the outstanding
the thte of

Shares

following

the exercise

60

day period

ending

on and including

exercise.

5.3

Shams
the

Outstanding.

For purposes
rely

of

this

Article

in determining Shares

the
as

number of the outstanding
reflected in

Shares
site

of

an Issuer

Claim Holder may
as

on the number of outstanding
Issuer

on an Issuers an Issuers
in
its

web

or

ii at

such

time

an Issuer

is

reporting
filed

under the Exchange
to

Act
or

as reflected

most recent

annual

quarterly or current or other
shall

mport

pursuant
setting

the

Exchange

Act

iii as

reflected

most recent public

announcement
outstanding with respect

notice

by an Issuer

forth the
effect

number of Shares
exercises of such

outstanding. Plan

The number of
including the exercise

Shares
to

be determined
determination

after
is

giving

to

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 exercise limitations imposed by
its

in sole

whole

or in part

upon

receipt
if

by the Claim Holder of
legal

undertaking

in

form acceptable
applicable

to

an law

Issuer

discmtion

including

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

party

Warrant

Agent
will

which
only

it

may do
upon
of
this

in

its

sole

discretion following

and such
terms

Agent by

accepts
all

appointment such an Issuer and every

Warrant

Agent

accept

the Plan

and conditions
shall

of

which

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 of

shall

be taken

as statements except

Issuer.

The Warrant
the

Agent

assumes no responsibility for
or

the correctness taken

any of these
Agent.

statements

describe

Warrant

Agent

any action taken

or

to

be

by

the

Warrant

The Warrant
Issuers covenants contained in

Agent
this

shall

not

be responsible
or
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

hereunder
shall

in

good

and in accordance
reasonable care
in

counsel provided
of such counsel.

Warrant

Agent

have

exercised

the selection

and continued

employment

The Warrant
any or action taken
in

Agent

shall

incur

no

liability

or

responsibility

to

an Issuer or
certificate

to

any

Claim Holder for

reliance

instmment believed

by

it

upon any to be genuine

notice

resolution
to

waiver consent been

order

and

have

signed sent or presented

paper document by the proper party or parties.
or other

An
the

Issuer

agrees

to

pay
this

to

the

Warrant
to

Agent

reasonable the

compensation Agent

for
all

all

services

mndered by
taxes

Warrant

Agent

in

the execution

of

Agreement
of any kind

reimburse nature

Warrant

for

expenses

and
of

governmental
this

charges

and

all

other charges as
result

in

incurred

by the Warrant
or

Agent

in the execution the for

Agreement
it

and to except
against

of

Warrant

Agents

negligence

bad faith indemnify
fees

Warrant

Agent

and save

harmless

any

and

all liabilities

including

judgments costs and counsel

this

Agreement.

15

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VT022400

The Warrant
to

Agent
to

shall

be under no obligation
unless

to

institute

any

action

suit

or

legal shall

proceeding furnish the

or

take

any

other action with

likely

involve
security

expense

an

Issuer

or

one

or more Claim Holders
that shall

Warrant
with such

Agent

reasonable or
legal

and indemnity

for
this

any costs and expense
provision

may be
not
affect

incurred the

in connection of the

action

suit

proceeding. as the

However
Warrant under
of

proceeding

power

Warrant
security

Agent
or

to

take

such All

action
rights

Agent
this

may

consider or

proper whether

with

or without

any such
enforced

indemiiity.

of action

Agreement

under any of the Plan Warrants
Certificates

may be
thereof
at

by the Warrant

Agent

without

the possession

any of the Warrant

or the production

any

trial

or other proceeding brought Holders in as
its

relative

thereto

name

as

Warrant

and any such action suit or proceeding ofjudgment shall Agent and any recovery
or
interest

instituted

by the Warrant
ratable

Agent

shall

be

be for the

benefit

of the

Claim

their

respective

rights

may

appear.

The Warrant

Agent

and any shareholder
or other

director of

officer

or

employee

of the

Warrant

Agent
in
act

may
any
as

buy

sell

or deal
in

in

any of the Plan

Warrants

securities

an Issuer or become

pecuniary

interested

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 the

into

which

the

Warrant

Agent

may be merged
trust

or converted
to

or

which
the

it

may be
shall

consolidated
shall

resulting

from any merger conversion
to

or consolidation business
filing

which

Warrant

Agent

be

corporation

succeeding

the corporate

of the of any paper

Warrant
or

Agent

be the successor

Warrant

Agent hereunder

without

the execution

or

hereto. In any such event or if the name of the Warrant Agent is changed party or the parties any further act of the Warrant of the original Warrant Agent and may Agent or its successor may adopt the countersignature

countersign successor

the

Warrant
Agent.

Certificates

either

in the

name

of the predecessor

Warrant

Agent

or in the

name

of the

Warrant

6.3

Appointment from
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

duties date
thirty

under

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 Warrant

incapable Agent.

of acting

an

Issuer

may

elect

to

act

own Warrant Agent
fails to

appoint

successor

the

If

an Issuer

make

such

election

or appointment of
its

within

period then
to

of

thirty

30

days

after

it

has
to

been

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 appointment the successor
as if
it

Court each Issuer
shall

carry the

out the duties

of the

Warrant and

After

Agent
as the

be vested Agent

with without

same powers
act

rights

duties

responsibilities

had been
transfer

originally to

Warrant

further
at

or

deed

and the Warrant by
it

Agent

shall

deliver

and

the

successor

Warrant

Agent

any property
act

the time

held

as

the

Warrant

Agent
or

and execute
transfer.

and deliver any

further assurance

conveyance

or

deed necessary

for effecting

the delivery

Failure the resignation or

for in this Section to give any notice provided 6.3 shall not affect the legality removal of the Warrant Agent or the appointment of the successor Warrant Agent.

or

validity

of

ARTICLE VII CONTINGENT
Claim Holder Agent. and electing
act

CLAIM HOLDER AGENT
Execution Warrant
the accepting

7.1

Contingent

By

the execution for the Plan

of the

Acceptance

and Effective
elect also to

Delivery

Agreement
agent

Book

Entry

Warrants

Claim Holders manner specified

have

an additional Agent

for

them only under the limited circumstances
hereto as Exhibit

and

in

the

in the

Contingent
the delivery of

Agreement
Warrant
Warrants

attached

the Contingent
Delivery of the

Agent.

If

Claim Holder executing
elects to

Execution
the Plan

Acceptance
in accordance

and Effective
with

Agreement Election
to

however
Certificate

receive
as

physical attached

the terms

Agreement

hereto

as

16

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Page 18 of 64
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. any

Subsequent

to

the execution

of the

Execution

Warrant

Acceptance Agreement
applicable

and Effective

Agreement
writing.

by notifying an Issuer in
Plan Warrant.

Claim Holder may elect to terminate the Contingent Agent Any such notice must be received before the Expiration Date of the

7.4 duty
to

No Duty
do
so.

to

Appoint

Contingent

Agent.

An

Issuer

may
are

elect

to

appoint

Contingent
all

Agent

but has
to

no
the

The terms of the Contingent

Agent

Agmement

controlling

regarding

issues pertaining

Contingent

Agent.

ARTICLE VIII RIGHTS AND DUTIES
of

OF CLAIM HOLDERS

8.1

Rights

Claim Holders.

No
equity

Claim Holder
of the

as

such

shall

have any
to

rights

as

shareholder

of

any

Issuer
in this their

either

at

law or
or
in

and the

rights

Claim Holders

are limited

those
to

rights

expmssly provided an Issuer and
Entry

Agreement Warrant
as

the

Warrant
treat

Certificates

if issued.

Notwithstanding
to

any

notice

the contrary or

Agent

may

the registered for

Claim Holder in respect
all

any Warrant

Certificate

Book

or otherwise

the absolute

owner thereof

purposes.

Except
receive contained limited consent
to to

as otherwise

specifically

provided

herein

no Claim Holder
Issuer for any

shall

be

entitled

to

vote

or

dividends
in

or be Plan

deemed

the holder or
this

of Shares

of the applicable
to

any

Warrant
rights

Agreement
of

be construed an Issuer

confer
right

upon
to

purpose nor shall anything the Claim Holder including but not
right to

any
any

of the

of

stockholder

ii

any

vote iii any
reclassification

give or withhold consolidation or

corporate or

action

whether and

any

reorganization
right to

issue of stock

of

stock

merger conveyance
subscription exercise of
rights

otherwise
to

iv

any

receive the

notice of meetings
is

or receive
entitled to

dividends receive

prior

the issuance

of the Shares

that

Claim Holder

then

upon

the

due

any Plan