0001193125-12-013581.txt : 20120117 0001193125-12-013581.hdr.sgml : 20120116 20120117142808 ACCESSION NUMBER: 0001193125-12-013581 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20120117 DATE AS OF CHANGE: 20120117 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BRANDENBURG DAVID CENTRAL INDEX KEY: 0001244112 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 401 NORTH POINT ROAD #1002 CITY: OSPREY STATE: FL ZIP: 34229 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VIEWCAST COM INC CENTRAL INDEX KEY: 0000921313 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 752528700 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-51085 FILM NUMBER: 12529283 BUSINESS ADDRESS: STREET 1: 2665 VILLA CREEK DR STREET 2: STE 200 CITY: DALLAS STATE: TX ZIP: 75234 BUSINESS PHONE: 9724887200 MAIL ADDRESS: STREET 1: 2665 VILLA CREEK DR CITY: DALLAS STATE: TX ZIP: 75234 FORMER COMPANY: FORMER CONFORMED NAME: MULTIMEDIA ACCESS CORP DATE OF NAME CHANGE: 19950202 SC 13D/A 1 d282900dsc13da.htm SCHEDULE 13D/A Schedule 13D/A

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 2)*

 

 

 

ViewCast.com, Inc.

(Name of issuer)

 

 

 

Common Stock, Par Value $0.0001

(Title of class of securities)

 

926713 10 8

(CUSIP number)

 

David W. Brandenburg

401 North Point Road, #1002

Osprey, Florida 34229

(214) 498-1000

(Name, address and telephone number of person authorized to receive notices and communications)

 

December 27, 2011

(Date of event which requires filing of this statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

 

 

 

*   The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 926713 10 8  

 

  (1)   

Names of reporting persons

 

David W. Brandenburg

  (2)  

Check the appropriate box if a member of a group (see instructions)

(a)  ¨        (b)  x

 

  (3)  

SEC use only

 

  (4)  

Source of funds (see instructions)

 

PF, OO

  (5)  

Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)

 

¨

  (6)  

Citizenship or place of organization

 

United States

Number of

shares

beneficially

owned by

each

reporting

person

with:

     (7)    

Sole voting power

 

3,011,379(1)

     (8)   

Shared voting power

 

5,151,879(2)

     (9)   

Sole dispositive power

 

3,011,379(1)

   (10)   

Shared dispositive power

 

5,151,879(2)

(11)

 

Aggregate amount beneficially owned by each reporting person

 

8,163,258

(12)

 

Check if the aggregate amount in Row (11) excludes certain shares (see instructions)

 

¨

(13)

 

Percent of class represented by amount in Row (11)

 

13.31%(3)

(14)

 

Type of reporting person (see instructions)

 

IN

 

(1) Includes 100,000 shares of Common Stock (defined below) issuable upon exercise of certain Director Options (defined below) and 888,331 shares of Common Stock issuable upon exercise of Warrants (defined below) held by the reporting person.

 

(2) Includes (i) 2,440,500 shares of Common Stock held jointly by the reporting person and his spouse, (ii) 1,823,048 shares of Common Stock directly held by the reporting person’s spouse, and (iii) 888,331 shares of Common Stock issuable upon exercise of Warrants directly held by the reporting person’s spouse.

 

(3) Based upon: (i) 55,699,005 shares of Common Stock outstanding as of October 31, 2011, as reported in the Issuer’s Form 10-Q for the quarterly period ended September 30, 2011, (ii) 3,775,408 shares of Common Stock issued as of the date hereof pursuant to the 2011 Private Placement (defined below), (iii) 1,776,662 shares of Common Stock issuable upon exercise of Warrants held by the reporting person and his spouse and (iv) 100,000 shares of Common Stock issuable upon exercise of certain Director Options held by the reporting person.


This Amendment No. 2 to Schedule 13D (this “Amendment No. 2”) is filed to amend the Schedule 13D relating to the common stock, par value $0.0001 per share (“Common Stock”), of ViewCast.com, Inc., a Delaware corporation (the “Issuer”), filed with the Commission by the reporting person on November 26, 2008, as amended by that certain Amendment No. 1 to Schedule 13D, filed with the Commission by the reporting person on March 2, 2011 (as amended, the “Schedule 13D”). This Amendment No. 2 is being filed to amend and supplement the Schedule 13D to disclose: (i) the purchases of 888,331 Units (defined below) by each of the reporting person and his spouse; (ii) the vesting of certain options issued to the reporting pursuant to the ViewCast.com, Inc. 2005 Stock Incentive Plan (the “Plan”) as compensation for the reporting person’s services as a director of the Issuer (the “Director Options”) which have subsequently vested since the reporting person filed the Schedule 13D; and (iii) the granting of additional Director Options to the reporting person since the reporting person filed the Schedule 13D. Each capitalized term used and not defined herein shall have the meaning assigned to such term in the Schedule 13D. A copy of the Plan has been filed as Exhibit 99.4 to this Amendment No. 2 and is incorporated herein by reference.

Item 3. Source and Amount of Funds or Other Consideration.

Item 3 of the Schedule 13D is hereby supplemented by inserting the following paragraph below the second to last paragraph of such Item:

In connection with the Issuer’s December 27, 2011 private placement (the “2011 Private Placement”), on December 27, 2011, the reporting person and his spouse entered into separate subscription agreements (the “2011 Subscription Agreements,” and each individually, a “2011 Subscription Agreement”) pursuant to which the reporting person and his spouse, though their respective Roth IRAs, each purchased 888,331 units (the “Units”), with each such Unit consisting of: (a) one share of the Issuer’s Common Stock and (b) a warrant representing the right to purchase one additional share of Common Stock, exercisable immediately upon issuance at an exercise price of $0.1238278 per share of Common Stock and expiring December 31, 2014 (each a Warrant, and collectively, the “Warrants”), at a price of $0.1125707 per Unit and a combined aggregate purchase price of $200,000. A copy of the 2011 Subscription Agreements have been filed as Exhibit 99.8 and Exhibit 99.9 to this Amendment No. 2, respectively, and are incorporated herein by reference. Additionally, the Warrants issued to each of the reporting person and his spouse pursuant to the Subscription Agreements have been filed as Exhibit 99.10 and Exhibit 99.11 to this Amendment No. 2, respectively, and are incorporated herein by reference.

Item 5. Interest in Securities of the Issuer.

Item 5 of the Schedule 13D are hereby amended and restated in its entirety as follows:

(a) The aggregate number and percentage of Common Stock beneficially owned by the reporting person is stated in Items 11 and 13 on the cover pages and include: (i) 50,000 shares of Common Stock issuable upon exercise of Director Options issued December 18, 2008 pursuant to that certain Stock Option Agreement, dated December 18, 2008 with the Issuer (the “First Stock Option Agreement”), that vested in full on December 18, 2009 and have an exercise price of $0.315 per share; (ii) 25,000 shares of Common Stock issuable upon exercise of Director Options issued on April 1, 2010 pursuant to that certain Stock Option Agreement, dated April 1, 2010 with the Issuer (the “Second Stock Option Agreement”), that vested in full on April 1, 2011 and have an exercise price of $0.17; and (iii) 25,000 shares of Common Stock issuable upon exercise of Director Options issued on October 21, 2010 pursuant to that certain Stock Option Agreement, dated October 21, 2010, with the Issuer (the “Third Stock Option Agreement”), that vested in full on October 21, 2011 and have an exercise price of $0.235. Copies of the First Stock Option Agreement, Second Stock Option Agreement and Third Stock Option Agreement have been filed as Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3 to this Amendment No. 2, respectively, and are incorporated herein by reference. The aggregate number and percentage of Common Stock beneficially owned by the reporting person also includes 888,331 shares of Common Stock issuable upon exercise of Warrants held by the reporting person.

Of the shares of Common Stock beneficially owned by the reporting person: (i) 2,440,500 shares of Common Stock are held jointly by the reporting person and his spouse; (ii) 1,823,048 shares of Common Stock are directly held by the reporting person’s spouse; and (iii) 888,331 shares of Common Stock issuable upon exercise of Warrants directly held by the reporting person’s spouse. The Reporting person’s spouse, Diana L. Brandenburg,


resides at 401 North Point Road, #1002, Osprey, Florida 34229. Mrs. Brandenburg currently serves as a philanthropist and private investor. During the last five years, Mrs. Brandenburg has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). Furthermore, during the past five years, Mrs. Brandenburg has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Mrs. Brandenburg is a citizen of the United States.

 

  (b) (i)       sole power to vote or to direct the vote:

See Item 7 on the cover pages hereto.

 

  (ii) shared power to vote or to direct the vote:

See Item 8 on the cover pages hereto.

 

  (iii) sole power to dispose or to direct the disposition of:

See Item 9 on the cover pages hereto.

 

  (iv) shared power to dispose or to direct the disposition of:

See Item 10 on the cover pages hereto.

The discussion of the reporting person’s spouse in Item 5(a) above is incorporated herein by reference.

(c) Except as set forth below, there have been no transactions in the Common Stock by the reporting person during the 60-day period prior to the date of this filing. As described above, on December 27, 2011, the reporting person and his spouse entered into the 2011 Subscription Agreements pursuant to which the reporting person and his spouse, though their respective Roth IRAs, each purchased 888,331 Units at a price of $0.1125707 per Unit and a combined aggregate purchase price of $200,000. As noted above, copies of the 2011 Subscription Agreements have been filed as Exhibit 99.8 and Exhibit 99.9 to this Amendment No. 2, respectively, and each is incorporated herein by reference. In addition, on November 30, 2011, the reporting person was issued Director Options to purchase 25,000 shares of Common Stock pursuant to that certain Stock Option Agreement, dated November 30, 2011, with the Issuer (the “Fourth Stock Option Agreement”). The Director Options issued pursuant to the Fourth Stock Option Agreement shall vest in full on November 30, 2012 and have an exercise price of $0.14 per share. A copy of the Fourth Stock Option Agreement has been filed as Exhibit 99.7 to this Amendment No. 2 and is incorporated herein by reference.

(d) As discussed above, the reporting person’s spouse has the right to receive, or the power to direct the receipt of dividends from, or the proceeds from the sale of 1,823,048 of the shares of Common Stock, and 888,331 shares of Common Stock issuable upon exercise of the Warrants, reported in this Schedule.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is amended and restated in its entirety as follows:

The reporting person is a director of the Issuer. As of the date hereof, the reporting person has the right to acquire up to 50,000 shares of Common Stock upon exercise of stock options granted pursuant to the First Stock Option Agreement under the Plan. These options vested in full on December 18, 2009 and have an exercise price of $0.315 per share. On April 1, 2010, the reporting person was issued additional Director Options to purchase 25,000 shares of Common Stock pursuant to the Second Stock Option Agreement. These options vested in full on April 1, 2011 and have an exercise price of $0.17. In addition, on October 21, 2010, the reporting person was issued Director Options to purchase 25,000 shares of Common Stock pursuant to the Third Stock Option Agreement. These options vested in full on October 21, 2011 and have an exercise price of $0.235. Finally, on November 30, 2011, the reporting person was issued additional Director Options to purchase 25,000 shares of Common Stock pursuant to the Fourth Stock Option Agreement. These options vest on November 30, 2012 and have an exercise price of $0.14. As noted above, copies of the First Stock Option Agreement, Second Stock Option Agreement, Third Stock Option Agreement, Fourth Stock Option Agreement and Plan have been filed as Exhibit 99.1, Exhibit 99.2, Exhibit 99.3, Exhibit 99.7 and Exhibit 99.4 to this Amendment No. 2, respectively, and are incorporated herein by reference.

 


On December 30, 2010, as described in Item 3 above, the reporting person and his spouse entered into the Subscription Agreements for the purchase of shares of Common Stock, pursuant to which the reporting person and his spouse, though their respective Roth IRAs, each purchased 534,717 shares of Common Stock at a price of $0.25247 per share, and a combined aggregate purchase price of $260,000. As noted above, copies of the Subscription Agreements have been filed as Exhibit 99.5 and Exhibit 99.6 to this Amendment No. 1, and each is incorporated herein by reference.

On December 27, 2011, as described in Item 3 above, the reporting person and his spouse entered into the 2011 Subscription Agreements, pursuant to which the reporting person and his spouse, though their respective Roth IRAs, each purchased 888,331 Units, (with each such Unit consisting of: (a) one share of the Issuer’s Common Stock and (b) a warrant representing the right to purchase one additional share of Common Stock, exercisable immediately upon issuance at an exercise price of $0.1238278 per share of Common Stock and expiring December 31, 2014) at a price of $0.1125707 per unit, and a combined aggregate purchase price of $200,000. As noted above, copies of the 2011 Subscription Agreements have been filed as Exhibit 99.8 and Exhibit 99.9 to this Amendment No. 2, respectively, and each is incorporated herein by reference. Additionally, the Warrants issued to each of the reporting person and his spouse pursuant to the Subscription Agreements have been filed as Exhibit 99.10 and Exhibit 99.11 to this Amendment No. 2, respectively, and are incorporated herein by reference.

Except as otherwise described herein, the reporting person has no legal or other contract, arrangement, understanding, or relationship with any other person with respect to any securities of the Issuer.


Item 7. Material to be Filed as Exhibits.

The following exhibits are filed as exhibits hereto:

 

Exhibit No.

  

Description of Exhibit

99.1    Stock Option Agreement, dated December 18, 2008, by and between ViewCast.com, Inc. and David W. Brandenburg (previously filed as Exhibit 99.1 to the Amendment No. 1 to Schedule 13D filed on March 2, 2011, File No. 005-51085, and incorporated herein by reference).
99.2    Stock Option Agreement, dated April 1, 2010, by and between ViewCast.com, Inc. and David W. Brandenburg (previously filed as Exhibit 99.2 to the Amendment No. 1 to Schedule 13D filed on March 2, 2011, File No. 005-51085, and incorporated herein by reference).
99.3    Stock Option Agreement, dated October 21, 2010, by and between ViewCast.com, Inc. and David W. Brandenburg (previously filed as Exhibit 99.3 to the Amendment No. 1 to Schedule 13D filed on March 2, 2011, File No. 005-51085, and incorporated herein by reference).
99.4    ViewCast.com, Inc. 2005 Stock Incentive Plan, (previously filed as Exhibit A to the Proxy Statement on Schedule 14A filed on September 9, 2005, File No. 000-29020, and incorporated herein by reference).
99.5    Subscription Agreement, dated December 30, 2010, by and between ViewCast.com, Inc. and David W. Brandenburg (previously filed as Exhibit 10.6 to the Current Report on Form 8-K filed on January 6, 2011, File No. 0-29020, and incorporated herein by reference)
99.6    Subscription Agreement, dated December 30, 2010, by and between ViewCast.com, Inc. and Diana L. Brandenburg (previously filed as Exhibit 10.5 to the Current Report on Form 8-K filed on January 6, 2011, File No. 0-29020, and incorporated herein by reference).
99.7    Stock Option Agreement, dated November 30, 2011, by and between ViewCast.com, Inc. and David W. Brandenburg (filed herewith).
99.8    Subscription Agreement, dated December 27, 2011, by and between ViewCast.com, Inc. and David W. Brandenburg (filed herewith)
99.9    Subscription Agreement, dated December 27, 2011, by and between ViewCast.com, Inc. and Diana L. Brandenburg (filed herewith).
99.10    Warrant to purchase 888,331 shares of Common Stock, issued to David W. Brandenburg, dated December 27, 2011 (filed herewith).
99.11    Warrant to purchase 888,331 shares of Common Stock, issued to Diana L. Brandenburg, dated December 27, 2011 (filed herewith).


SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Date: January 13, 2012     DAVID W. BRANDENBURG
    By:   /s/ David W. Brandenburg
      David W. Brandenburg


Exhibit Index

 

Exhibit No.

  

Description of Exhibit

99.1    Stock Option Agreement, dated December 18, 2008, by and between ViewCast.com, Inc. and David W. Brandenburg (previously filed as Exhibit 99.1 to the Amendment No. 1 to Schedule 13D filed on March 2, 2011, File No. 005-51085, and incorporated herein by reference).
99.2    Stock Option Agreement, dated April 1, 2010, by and between ViewCast.com, Inc. and David W. Brandenburg (previously filed as Exhibit 99.2 to the Amendment No. 1 to Schedule 13D filed on March 2, 2011, File No. 005-51085, and incorporated herein by reference).
99.3    Stock Option Agreement, dated October 21, 2010, by and between ViewCast.com, Inc. and David W. Brandenburg (previously filed as Exhibit 99.3 to the Amendment No. 1 to Schedule 13D filed on March 2, 2011, File No. 005-51085, and incorporated herein by reference).
99.4    ViewCast.com, Inc. 2005 Stock Incentive Plan, (previously filed as Exhibit A to the Proxy Statement on Schedule 14A filed on September 9, 2005, File No. 000-29020, and incorporated herein by reference).
99.5    Subscription Agreement, dated December 30, 2010, by and between ViewCast.com, Inc. and David W. Brandenburg (previously filed as Exhibit 10.6 to the Current Report on Form 8-K filed on January 6, 2011, File No. 0-29020, and incorporated herein by reference)
99.6    Subscription Agreement, dated December 30, 2010, by and between ViewCast.com, Inc. and Diana L. Brandenburg (previously filed as Exhibit 10.5 to the Current Report on Form 8-K filed on January 6, 2011, File No. 0-29020, and incorporated herein by reference).
99.7    Stock Option Agreement, dated November 30, 2011, by and between ViewCast.com, Inc. and David W. Brandenburg (filed herewith).
99.8    Subscription Agreement, dated December 27, 2011, by and between ViewCast.com, Inc. and David W. Brandenburg (filed herewith)
99.9    Subscription Agreement, dated December 27, 2011, by and between ViewCast.com, Inc. and Diana L. Brandenburg (filed herewith).
99.10    Warrant to purchase 888,331 shares of Common Stock, issued to David W. Brandenburg, dated December 27, 2011 (filed herewith).
99.11    Warrant to purchase 888,331 shares of Common Stock, issued to Diana L. Brandenburg, dated December 27, 2011 (filed herewith).
EX-99.7 2 d282900dex997.htm EXHIBIT 99.7 Exhibit 99.7

Exhibit 99.7

VIEWCAST

2005 STOCK INCENTIVE PLAN

STOCK OPTION AGREEMENT

 

Name of Optionee:

  David W. Brandenburg  

Social Security Number:

  XXX-XX-XXXX  

Address:

  401 North Point Road, Osprey, FL 34229  

This Stock Option Agreement is intended to set forth the terms and conditions on which a Stock Option has been granted under the ViewCast 2005 Stock Incentive Plan. Set forth below are the specific terms and conditions applicable to this Stock Option. Attached as Exhibit A are its general terms and conditions.

 

Grant Date:   November 30, 2011
Class of Optioned Shares*   Common
No. of Optioned Shares*   25,000
Exercise Price Per Share*   $0.14
Option Type (ISO or NQSO)   Time based NQSO (subject to rules and regulations)
Vesting   100% will vest on 11/30/2012
Earliest Exercise Date*   11/30/2012
Option Expiration Date*   11/30/2018

 

*

Subject to adjustment as provided in the Plan and the General Terms and Conditions.

By signing where indicated below, ViewCast.com, Inc. (the “Company”) grants this Stock Option upon the specified terms and conditions, and the Optionee acknowledges receipt of this Stock Option Agreement, including Exhibit A, and agrees to observe and be bound by the terms and conditions set forth herein and acknowledges receipt of a copy of the ViewCast 2005 Stock Incentive Plan.

 

VIEWCAST.COM, INC.

   

OPTIONEE

By  

 

/s/ Laurie L. Latham

   

/s/ David W. Brandenburg

  Name: Laurie L. Latham    
  Title: CFO    

Instructions: This page should be completed by or on behalf of the Board of Directors or its committee. Any blank space intentionally left blank should be crossed out. An option grant consists of a number of optioned shares with uniform terms and conditions. Where options are granted on the same date with varying terms and conditions (for example, varying exercise prices or earliest exercise dates), the options should be recorded as a series of grants each with its own uniform terms and conditions.

EX-99.8 3 d282900dex998.htm EXHIBIT 99.8 Exhibit 99.8

Exhibit 99.8

ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

This Subscription Agreement is made by and between ViewCast.com, Inc. dba ViewCast Corporation, a Delaware corporation (“Corporation”), and David W. Brandenburg (“Undersigned”), with respect to Units of the Corporation, with each Unit consisting of one share (each, a “Share” and collectively, the “Shares”) of common stock (the “Common Stock”) and one warrant to purchase one share of Common Stock (each, a “Warrant” and collectively, the “Warrants”) of the Corporation, subject to the rights, powers, preferences, qualifications, limitations and restrictions of which are set forth in the Form of Warrant attached hereto as Exhibit A.

NOW THEREFORE, IT IS AGREED AS FOLLOWS:

1. Subscription. The Undersigned applies to purchase the Units with the Shares being purchased at a value per share based on the weighted average closing price of the Common Stock for the five (5) trading days immediately prior to the date this Subscription Agreement is executed which is $0.1125707 (the “Stock Value”) and with the Warrants having an exercise price per share of 110% of the Stock Value which is $0.1238278. The number of shares of Common Stock issued will be the next higher whole number of shares determined by dividing the Subscription Amount by the Stock Value. Unless and until rejected by the Corporation, this Subscription Agreement is binding upon the Undersigned. The Corporation may reject such subscription for any reason. The Corporation need not specify a reason for its rejection of any Subscription Agreement.

 

2.

General Representations. The Undersigned represents and warrants as follows:

A. The Undersigned is purchasing the Units without having been furnished any offering literature; has received all documents, records and books pertaining to investment in the Corporation requested by and deemed sufficient by him to make an investment in the Corporation; and has been furnished with or has acquired copies of all reports filed by the Corporation pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”) prior to the date of this Subscription Agreement and copies of all press releases issued by the Corporation prior to the date of this Subscription Agreement;

B. The Undersigned understands that he is purchasing the Units without being furnished any offering materials and that such purchase has not been scrutinized by the U.S. Securities and Exchange Commission (the “Commission”) or any state securities regulatory body;

C. The Undersigned understands that neither the Shares, the Warrants nor the shares of Common Stock of the Corporation underlying the Warrants (the “Warrant Shares”) have been registered under the Securities Act of 1933, as amended, (the “1933 Act”) nor any state securities law and he has no right to require registration of the Shares, the Warrants or the Warrant Shares under the 1933 Act or any state securities law;

D. The Undersigned understands that the Units are being purchased for his own account for investment purposes, not for the interest of any other person, and not for resale to others;


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

E. The Undersigned is an accredited investor as defined in Regulation D, Rule 501(a) (17 C.F.R.230.501(a)), by reason of one of the following:

 

  (a)

he is a director or executive officer of the Corporation;

 

  (b)

his net worth (including that of his spouse) exceeds $1,000,000 (“net worth” means the excess of total assets over total liabilities and for the purposes of determining “net worth,” the value of an individual’s primary residence and any amount of indebtedness secured by the primary residence up to the fair market value thereof should be excluded, and indebtedness secured by the primary residence in excess of the value of the home should be considered a liability);

 

  (c)

he had income in excess of $200,000 for each of 2009 and 2010 or income (including that of his spouse) in excess of $300,000 in each of those years and reasonably expects to reach the same level in 2011;

 

  (d)

the Undersigned is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for the purpose of acquiring the Shares, with total assets in excess of $5,000,000;

 

  (e)

the Undersigned is a trust, with total assets in excess of $5,000,000, not formed for the purpose of acquiring the Units, whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment; or

 

  (f)

the Undersigned is an entity in which all of the equity owners are accredited investors.

F. The Undersigned is sufficiently experienced in financial and business matters to be capable of evaluating the merits and risks of his investments, including an investment in the Corporation, and to make an informed decision relating thereto and to protect his own interests in connection with the purchase of the Units;

G. The Undersigned, in making the decision to subscribe for the Units, has relied upon an independent investigation made by him and, prior to entering into this Subscription Agreement, has been given access and the opportunity to ask questions of and to receive answers from officers of the Corporation concerning the terms and conditions of subscribing for the Units and has received complete and satisfactory answers to such inquiries;

H. Based upon the Undersigned’s independent investigation, the Undersigned has made his own independent determination to subscribe for the Units;

I. The Undersigned is, in relation to his total investment status and net worth, making only a reasonable commitment to the Corporation and is able to bear the economic risk of the investment, including the possible loss of his entire investment;

 

2


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

J. The Undersigned is making an investment in the Corporation without the expectation or desire for a resale or distribution with respect thereto;

K. The Undersigned has no need for liquidity with respect to the Undersigned’s investment in the Corporation;

L. The Undersigned recognizes that an investment in the Shares involves special risks, including, but not limited to, those set forth in all of the Corporation’s reports filed pursuant to the 1934 Act filed with the Commission prior to the date of this Subscription Agreement;

M. The Undersigned is aware of the restrictions on transfer of the Shares, the Warrant and the Warrant Shares imposed by the 1933 Act and applicable state securities laws and hereby consents to the placement of the following restrictive legends on the certificates representing the Shares, the agreement representing the Warrant and the certificates representing the Warrant Shares:

[THE SHARES REPRESENTED BY THIS CERTIFICATE] [THE WARRANT AND SECURITIES ISSUABLE UPON THE EXERCISE HEREOF] HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENT OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS.

N. The Undersigned further understands that the certificates representing Shares and the Warrant Shares and the agreement representing the Warrant held by officers, directors, or other affiliates of the Corporation may contain additional restrictive legends required by law;

O. The Undersigned acknowledges that he is not subscribing for the Units as a result of or pursuant to any of the following: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media outlet or broadcast over television or radio; or (ii) any seminar or meeting whose attendees, including the Undersigned, had been invited as a result of, or pursuant to, any of the foregoing;

P. The Undersigned understands that all information which the Undersigned has provided to the Corporation concerning himself and his financial position, and his knowledge of financial and business matters is correct and complete as of the date set forth herein and, if there should be any material change in such information prior to the Undersigned having paid his subscription in full, that the Undersigned must immediately provide the Corporation with such information; and

 

3


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

Q. The Undersigned acknowledges that he has been provided by the Corporation material non-public information regarding the Corporation which he must maintain in confidence pursuant to the terms of the [name of Confidentiality Agreement and date of it], and the Undersigned acknowledges that the U.S. securities laws prohibit him from trading in ViewCast’s common stock while he is in possession of material non-public information or from communicating to another person the material non-public information under circumstances where it is reasonably foreseeable that such person is likely to trade ViewCast’s common stock.

3. Subscription Amount. The Undersigned hereby subscribes for Units of ViewCast.com, Inc., a Delaware corporation, for the total price of $100,000.00 (“Subscription Amount”), tenders on the date of this Subscription Agreement a check, money order or wire transfer in the sum of at least $100,000.00, payable to ViewCast.com, Inc. (the “Initial Closing”) with the remainder of the Subscription Amount to be paid by the Undersigned by check, money order or wire transfer on or before January 31, 2012 (the “Second Closing”). At the Second Closing, the Undersigned shall be deemed to have reconfirmed the representations set forth in Section 2 hereof as of the date of the Second Closing. The Shares and Warrants purchased at the Initial Closing will be issued as of the date of this Subscription Agreement. The Shares and Warrants purchased at the Second Closing will be issued as of the date of the Second Closing. The number of Shares issued will be the next higher whole number of shares determined by dividing Subscription Amount by the Stock Value. The Warrants will be exercisable into the number of Warrant Shares that is equal to the number of Shares.

4. Binding Effect and Irrevocability. The Undersigned understands that this Subscription Agreement is not binding on the Corporation unless and until it is accepted by the Corporation as evidenced by the counter-execution below.

5. Indemnification. The Undersigned understands the meaning and legal consequences of the representations and warranties contained in this Subscription Agreement and agrees to indemnify and hold harmless the Corporation and the organizers, incorporators, directors and executive officers of the Corporation from and against any and all loss, damage or liability due to or arising out of a breach of any representation or warranty of the Undersigned contained in this Subscription Agreement.

6. Notices. All notices and other communications required or permitted under this Subscription Agreement shall be in writing, and shall be deemed to have been given if delivered personally, or mailed, postage prepaid, by first class mail, to the parties at the addresses set forth in this Subscription Agreement or such other address as a party may specify to the other by notice.

7. Succession and Assignment. This Subscription Agreement shall be binding upon and shall inure to the benefit of the executors, administrators, heirs, legatees, devisees, assigns, legal representatives, and successors of the parties hereto, and may not be assigned or transferred by either party without the consent of the other party.

8. Amendments and Waivers. This Subscription Agreement may be amended or modified only by an instrument signed by the parties hereto. A waiver of any provision of this Subscription Agreement must be in writing, designated as such, and signed by the party against whom enforcement of that waiver is sought. The waiver by a party of a breach of any provision of this Subscription Agreement shall not operate or be construed as a waiver of any subsequent or other breach thereof.

9. Governing Law. This Subscription Agreement shall be enforced, governed and construed in accordance with the laws of the State of Delaware.

*****

 

4


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

EXECUTED AND SUBMITTED BY THE UNDERSIGNED:

Date: December 27, 2011

 

/s/ David W. Brandenburg

 

/     /s/ Raymond James and Associates, Inc., as Custodian

Signature of Subscriber

          Signature of Subscriber’s Spouse (if applicable)

David W. Brandenburg

 

/     Raymond James and Associates, Inc., as Custodian

(Type or print name of Subscriber as it appears above

      Type or print name of Subscriber’s Spouse as it appears above)
   

/     

Federal Tax Identification No. of Subscriber           Federal Tax Identification No. of Subscriber’s Spouse

 

 

Street Address

 

 

City                                                          State                     Zip

 

**IMPORTANT**

    Please print below exactly how you want your name(s) listed on your securities certificate:

 

                                     David

W. Brandenburg

ACCEPTED BY

 

  ViewCast.com, Inc., a Delaware corporation
by:     /s/ Laurie L. Latham
  Laurie L. Latham, Senior Vice President and Chief Financial Officer
Date: December 27, 2011

 

5


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

EXHIBIT A

FORM OF WARRANT

THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS.

WARRANT TO PURCHASE COMMON STOCK

of VIEWCAST.COM, INC.

Void after December 31, 2014

This Warrant is issued to ______ (“Holder”) by ViewCast.com, Inc., a Delaware corporation (the “Company”), on December ___, 2011 (the “Warrant Issue Date”). This Warrant is issued pursuant to the terms of that certain Subscription Agreement for Units Consisting of Shares of Common Stock and Warrants for Shares of Common Stock dated December _____, 2011, by and between the Company and the Holder (the “Subscription Agreement”).

1. Purchase Shares. Subject to the terms and conditions hereinafter set forth herein, the Holder is entitled, upon surrender of this Warrant at the principal office of the Company (or at such other place as the Company shall notify the holder hereof in writing), to purchase from the Company up to _____(_______) fully paid and nonassessable shares of Common Stock, par value $0.0001, of the Company, as constituted on the Warrant Issue Date (the “Common Stock”). The number of shares of Common Stock issuable pursuant to this Section 1 (the “Shares”) shall be subject to adjustment pursuant to Section 9 hereof.

2. Exercise Price. The purchase price for the Shares shall be $_________ per share which is 110% of the Stock Value as defined in the Subscription Agreement, as adjusted from time to time pursuant to Section 9 hereof (the “Exercise Price”).

3. Exercise Period. This Warrant shall be exercisable commencing on the Warrant Issue Date and shall expire and be of no further force or effect at 4:30 pm (Dallas time) on December 31, 2014 (the “Expiration Date”).

 

6


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

4. Method of Exercise. While this Warrant remains outstanding and exercisable in accordance with Section 3 above, the Holder may exercise, in whole or in part, the purchase rights evidenced hereby. Such exercise shall be effected by:

(a) the surrender of the Warrant, together with a duly executed copy of the form of Notice of Election attached hereto, to the Secretary of the Company at its principal office; and

(b) the payment to the Company of an amount equal to the aggregate Exercise Price for the number of Shares being purchased by certified check or bank draft.

5. Accredited Investor. As also indicated in the Subscription Agreement, on the date hereof, the Holder is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”). Immediately prior to any exercise of the Warrant pursuant to Section 4, the Holder shall provide the Company with a representation that it is still an “accredited investor” as defined in Rule 501(a) under the Securities Act.

6. Investment Representation. Unless the Shares are issued to the Holder in a transaction registered under applicable federal and state securities laws, by its execution hereof, the Holder represents and warrants to the Company that all Shares which may be purchased hereunder will be acquired by the Holder for investment purposes for its own account and not with any present intent for resale or distribution in violation of federal or state securities laws. Unless the Shares are issued to the Holder in a transaction registered under the applicable federal and state securities laws, all certificates issued with respect to the Shares shall bear the appropriate restrictive investment legend (such legend to be in substantially the same form as set forth in the Subscription Agreement) and shall be held indefinitely, unless they are subsequently registered under the applicable federal and state securities laws or the Holder obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required.

7. Certificates for Shares. Upon the exercise of the purchase rights evidenced by Section 4 of this Warrant, one or more certificates for the number of Shares so purchased shall be issued as soon as practicable thereafter (with appropriate restrictive legends, if applicable), and in any event within ten (10) days of the delivery of the Notice of Election.

8. Issuance of Shares. The Company covenants that the Shares, when issued pursuant to the exercise of this Warrant under Section 4, will be duly and validly issued, fully paid and nonassessable.

9. Adjustment of Exercise Price and Number of Shares. The number of and kind of securities purchasable upon exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time as follows:

(a) Subdivisions, Combinations and Other Issuances. If the Company shall at any time prior to the expiration of this Warrant subdivide its Common Stock, by split-up or otherwise, or combine its Common Stock, or issue additional shares of its Common Stock as a

 

7


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

dividend or distribution with respect to any shares of its Common Stock, the number of Shares issuable on the exercise of this Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend or distribution, or proportionately decreased in the case of a combination. Appropriate adjustments shall also be made to the purchase price payable per share, but the aggregate purchase price payable for the total number of Shares purchasable under this Warrant (as adjusted under this Section 9(a)) shall remain the same. Any adjustment under this Section 9(a) shall become effective at the close of business on the date the subdivision or combination becomes effective, or as of the record date of such dividend or distribution, or in the event that no record date is fixed, upon the making of such dividend or distribution.

(b) Reclassification, Reorganization and Consolidation. In case of any reclassification, capital reorganization, or change in the Common Stock of the Company (other than as a result of a subdivision, combination, or stock dividend provided for in Section 9(a) above), then, as a condition of such reclassification, reorganization, or change, lawful provision shall be made, and duly executed documents evidencing the same from the Company or its successor shall be delivered to the Holder, so that the Holder shall have the right at any time prior to the expiration of this Warrant to purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind and amount of shares of stock and other securities and property receivable in connection with such reclassification, reorganization, or change by a holder of the same number of shares of Common Stock as were purchasable by the Holder immediately prior to such reclassification, reorganization, or change. In any such case, appropriate provisions shall be made with respect to the rights and interest of the Holder so that the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable upon exercise hereof, and appropriate adjustments shall be made to the purchase price per share payable hereunder, provided the aggregate purchase price shall remain the same.

(c) Carry Over of Adjustments. No adjustment of the Exercise Price shall be made if the amount of such adjustment shall be less than 1% of the Exercise Price in effect immediately prior to the event giving rise to the adjustment, provided, however, that in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to at least 1% of the Exercise Price.

(d) Discretionary Reduction in Exercise Price. The Company may at any time or from time to time reduce the Exercise Price of the Warrant.

(e) Notice of Adjustment. Upon any adjustment of the number of Shares and upon any adjustment of the Exercise Price, then and in each such case the Company shall give written notice thereof to the Holder, which notice shall state the Exercise Price and the number of Shares or other securities subject to the unexercised Warrant resulting from such adjustment, and shall set forth in reasonable detail the method of calculation and the facts upon which such calculation is based.

(f) Other Notices. In case at any time prior to the Expiration Date:

 

8


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

  (i)

the Company shall declare any dividend or distribution upon its shares of Common Stock payable in shares;

 

  (ii)

the Company shall offer for subscription pro rata to the holders of its shares of Common Stock any additional shares of any class or other rights;

 

  (iii)

there shall be any capital reorganization or reclassification of the capital stock of the Company, or consolidation, amalgamation or merger of the Company with, or sale of all or substantially all of its assets to, another corporation; or

 

  (iv)

there shall be a voluntary dissolution, liquidation or winding-up of the Company,

then, in any one or more of such cases, the Company shall give to the Holder (A) at least 10 days’ prior written notice of the date on which a record date shall be taken for such dividend, distribution or subscription rights or for determining rights to vote in respect of any such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up and (B) in the case of any such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up, at least 10 days’ prior written notice of the date when the same shall take place. Such notice in accordance with the foregoing clause (A) shall also specify, in the case of any such dividend, distribution or subscription rights, the date on which the holders of shares of Common Stock shall be entitled thereto, and such notice in accordance with the foregoing clause (B) shall also specify the date on which the holders of shares of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up, as the case may be.

(g) Shares to be Reserved. The Company will at all times keep available, and reserve out of its authorized shares of Common Stock, solely for the purpose of issue upon the exercise of the Warrant, such number of Shares as shall then be issuable upon the exercise of the Warrant. The Company will take all such actions as are within its power to ensure that all such Shares may be so issued without violation of any applicable law.

10. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant, but in lieu of such fractional shares the Company shall make a cash payment therefor on the basis of the Exercise Price then in effect.

 

9


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

11. No Stockholder Rights. Prior to exercise of this Warrant, the Holder shall not be entitled to any rights of a stockholder with respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon, exercise preemptive rights or be notified of stockholder meetings, and such holder shall not be entitled to any notice or other communication concerning the business or affairs of the Company. However, nothing in this Section 11 shall limit the right of the Holder to be provided the Notices required under this Warrant. Notwithstanding the foregoing, the Holder shall be deemed a stockholder and shall be entitled to all of the rights of a stockholder with respect to the Shares immediately upon satisfying all of Section 4.

12. Participation in Rights Distribution. If at any time, while this Warrant, or any portion thereof, is outstanding and unexpired, the Company shall issue to all holders of its Common Stock rights (the “Rights”) entitling the holders thereof to purchase any shares of capital stock, the Company also shall issue to the Holder identical Rights, with such number of Rights to be issued to the Holder being based on the number of shares of Common Stock which Holder would then be entitled to receive if this Warrant had been exercised in full immediately prior to the issuance of the Rights. Prior to issuing the Rights, the Company shall provide notice to the Holder as set forth in Section 9(f). In connection with issuing the Rights, the Company will take all necessary corporate action to at all times keep available and reserve out of its authorized shares of Common Stock the number of shares of Common Stock issuable upon exercise of the Rights.

13. Transfers of Warrant. The Holder of the Warrants may transfer this Warrant without restriction to an Affiliate (as defined in Rule 405 promulgated pursuant to the Securities Act of 1933, as amended) of the Holder and in compliance with all applicable federal and state securities laws. In order for a transferee of this Warrant to receive any of the benefits of such Warrant, the Company must have received notice of such transfer, pursuant to Section 17 hereof, in the form of assignment attached hereto.

14. Replacement. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant or, in the case of mutilation, upon surrender of this Warrant, the Company will issue to the Holder a replacement warrant (containing the same terms and conditions as this Warrant).

15. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company and the Holder hereof and their respective successors and permitted assigns as set forth in Section 13.

16. Amendments and Waivers. Any term of this Warrant may be amended and the observance of any term of this Warrant may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the Holder.

17. Notices. All notices required under this Warrant shall be deemed to have been given or made for all purposes (i) upon personal delivery, (ii) upon confirmation receipt that the communication was successfully sent to the applicable number if sent by facsimile; (iii) one business day after being sent, when sent by professional overnight courier service, or (iv)

 

10


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

five days after posting when sent by registered or certified mail. Notices to the Company shall be sent to the principal office of the Company (or at such other place as the Company shall notify the Holder hereof in writing). Notices to the Holder shall be sent to the address of the Holder on the books of the Company (or at such other place as the Holder shall notify the Company hereof in writing).

18. Captions. The section and subsection headings of this Warrant are inserted for convenience only and shall not constitute a part of this Warrant in construing or interpreting any provision hereof.

19. Governing Law. This Warrant shall be governed by the laws of the State of Delaware.

 

11


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

IN WITNESS WHEREOF, ViewCast.com, Inc. caused this Warrant to be executed by an officer thereunto duly authorized.

 

    VIEWCAST.COM, INC.
    By:      
      Laurie L. Latham
      Senior Vice President and Chief Financial Officer

 

Agreed to and Acknowledged by:

 

By:    
Name:    
Title:    

 

12


ViewCast Corporation

FORM OF

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

FORM OF ELECTION TO EXERCISE

The undersigned hereby irrevocably elects to exercise the number of Warrants of VIEWCAST.COM, INC. set out below for the number of Shares (or other property or securities subject thereto) as set forth below:

 

  (a)

Number of Shares to be Acquired: _____________________________________

 

  (b)

Exercise Price per Share: _____________________________________________

 

  (c)

Aggregate Purchase Price [(a) multiplied by (b)]: _________________________

and hereby tenders a certified check, bank draft or cash for such aggregate purchase price, and directs such Shares to be registered and a certificate therefore to be issued as directed below.

DATED this                             day of                                     ,             .

Per: ___________________________________

Direction as to Registration    
Name of Registered Holder:      
Address of Registered Holder:      
     
     
     


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

FORM OF ASSIGNMENT

(To be executed by the registered holder if such holder

desires to transfer the Warrant.)

FOR VALUE RECEIVED _____________________ hereby sells, assigns and transfers unto ______________________.

(Please print name and address of transferee)

this Warrant, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ______________________________ Attorney, to transfer the within Warrant on the books of the within-named Company, with full power of substitution.

Dated:                             , 20        

 

Signature
(Signature must conform in all respect to name of holder as specified on the face of the Warrant.)

 

  
(Insert Social Security or Other Identifying Number of Holder)

 

14

EX-99.9 4 d282900dex999.htm EXHIBIT 99.9 Exhibit 99.9

Exhibit 99.9

ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

This Subscription Agreement is made by and between ViewCast.com, Inc. dba ViewCast Corporation, a Delaware corporation (“Corporation”), and Diana L. Brandenburg (“Undersigned”), with respect to Units of the Corporation, with each Unit consisting of one share (each, a “Share” and collectively, the “Shares”) of common stock (the “Common Stock”) and one warrant to purchase one share of Common Stock (each, a “Warrant” and collectively, the “Warrants”) of the Corporation, subject to the rights, powers, preferences, qualifications, limitations and restrictions of which are set forth in the Form of Warrant attached hereto as Exhibit A.

NOW THEREFORE, IT IS AGREED AS FOLLOWS:

1. Subscription. The Undersigned applies to purchase the Units with the Shares being purchased at a value per share based on the weighted average closing price of the Common Stock for the five (5) trading days immediately prior to the date this Subscription Agreement is executed which is $0.1125707 (the “Stock Value”) and with the Warrants having an exercise price per share of 110% of the Stock Value which is $0.1238278. The number of shares of Common Stock issued will be the next higher whole number of shares determined by dividing the Subscription Amount by the Stock Value. Unless and until rejected by the Corporation, this Subscription Agreement is binding upon the Undersigned. The Corporation may reject such subscription for any reason. The Corporation need not specify a reason for its rejection of any Subscription Agreement.

 

2.

General Representations. The Undersigned represents and warrants as follows:

A. The Undersigned is purchasing the Units without having been furnished any offering literature; has received all documents, records and books pertaining to investment in the Corporation requested by and deemed sufficient by him to make an investment in the Corporation; and has been furnished with or has acquired copies of all reports filed by the Corporation pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”) prior to the date of this Subscription Agreement and copies of all press releases issued by the Corporation prior to the date of this Subscription Agreement;

B. The Undersigned understands that he is purchasing the Units without being furnished any offering materials and that such purchase has not been scrutinized by the U.S. Securities and Exchange Commission (the “Commission”) or any state securities regulatory body;

C. The Undersigned understands that neither the Shares, the Warrants nor the shares of Common Stock of the Corporation underlying the Warrants (the “Warrant Shares”) have been registered under the Securities Act of 1933, as amended, (the “1933 Act”) nor any state securities law and he has no right to require registration of the Shares, the Warrants or the Warrant Shares under the 1933 Act or any state securities law;

D. The Undersigned understands that the Units are being purchased for his own account for investment purposes, not for the interest of any other person, and not for resale to others;


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

E. The Undersigned is an accredited investor as defined in Regulation D, Rule 501(a) (17 C.F.R.230.501(a)), by reason of one of the following:

 

  (a)

he is a director or executive officer of the Corporation;

 

  (b)

his net worth (including that of his spouse) exceeds $1,000,000 (“net worth” means the excess of total assets over total liabilities and for the purposes of determining “net worth,” the value of an individual’s primary residence and any amount of indebtedness secured by the primary residence up to the fair market value thereof should be excluded, and indebtedness secured by the primary residence in excess of the value of the home should be considered a liability);

 

  (c)

he had income in excess of $200,000 for each of 2009 and 2010 or income (including that of his spouse) in excess of $300,000 in each of those years and reasonably expects to reach the same level in 2011;

 

  (d)

the Undersigned is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for the purpose of acquiring the Shares, with total assets in excess of $5,000,000;

 

  (e)

the Undersigned is a trust, with total assets in excess of $5,000,000, not formed for the purpose of acquiring the Units, whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment; or

 

  (f)

the Undersigned is an entity in which all of the equity owners are accredited investors.

F. The Undersigned is sufficiently experienced in financial and business matters to be capable of evaluating the merits and risks of his investments, including an investment in the Corporation, and to make an informed decision relating thereto and to protect his own interests in connection with the purchase of the Units;

G. The Undersigned, in making the decision to subscribe for the Units, has relied upon an independent investigation made by him and, prior to entering into this Subscription Agreement, has been given access and the opportunity to ask questions of and to receive answers from officers of the Corporation concerning the terms and conditions of subscribing for the Units and has received complete and satisfactory answers to such inquiries;

H. Based upon the Undersigned’s independent investigation, the Undersigned has made his own independent determination to subscribe for the Units;

I. The Undersigned is, in relation to his total investment status and net worth, making only a reasonable commitment to the Corporation and is able to bear the economic risk of the investment, including the possible loss of his entire investment;

 

2


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

J. The Undersigned is making an investment in the Corporation without the expectation or desire for a resale or distribution with respect thereto;

K. The Undersigned has no need for liquidity with respect to the Undersigned’s investment in the Corporation;

L. The Undersigned recognizes that an investment in the Shares involves special risks, including, but not limited to, those set forth in all of the Corporation’s reports filed pursuant to the 1934 Act filed with the Commission prior to the date of this Subscription Agreement;

M. The Undersigned is aware of the restrictions on transfer of the Shares, the Warrant and the Warrant Shares imposed by the 1933 Act and applicable state securities laws and hereby consents to the placement of the following restrictive legends on the certificates representing the Shares, the agreement representing the Warrant and the certificates representing the Warrant Shares:

[THE SHARES REPRESENTED BY THIS CERTIFICATE] [THE WARRANT AND SECURITIES ISSUABLE UPON THE EXERCISE HEREOF] HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENT OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS.

N. The Undersigned further understands that the certificates representing Shares and the Warrant Shares and the agreement representing the Warrant held by officers, directors, or other affiliates of the Corporation may contain additional restrictive legends required by law;

O. The Undersigned acknowledges that he is not subscribing for the Units as a result of or pursuant to any of the following: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media outlet or broadcast over television or radio; or (ii) any seminar or meeting whose attendees, including the Undersigned, had been invited as a result of, or pursuant to, any of the foregoing;

P. The Undersigned understands that all information which the Undersigned has provided to the Corporation concerning himself and his financial position, and his knowledge of financial and business matters is correct and complete as of the date set forth herein and, if there should be any material change in such information prior to the Undersigned having paid his subscription in full, that the Undersigned must immediately provide the Corporation with such information; and

 

3


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

Q. The Undersigned acknowledges that he has been provided by the Corporation material non-public information regarding the Corporation which he must maintain in confidence pursuant to the terms of the [name of Confidentiality Agreement and date of it], and the Undersigned acknowledges that the U.S. securities laws prohibit him from trading in ViewCast’s common stock while he is in possession of material non-public information or from communicating to another person the material non-public information under circumstances where it is reasonably foreseeable that such person is likely to trade ViewCast’s common stock.

3. Subscription Amount. The Undersigned hereby subscribes for Units of ViewCast.com, Inc., a Delaware corporation, for the total price of $100,000.00 (“Subscription Amount”), tenders on the date of this Subscription Agreement a check, money order or wire transfer in the sum of at least $100,000.00, payable to ViewCast.com, Inc. (the “Initial Closing”) with the remainder of the Subscription Amount to be paid by the Undersigned by check, money order or wire transfer on or before January 31, 2012 (the “Second Closing”). At the Second Closing, the Undersigned shall be deemed to have reconfirmed the representations set forth in Section 2 hereof as of the date of the Second Closing. The Shares and Warrants purchased at the Initial Closing will be issued as of the date of this Subscription Agreement. The Shares and Warrants purchased at the Second Closing will be issued as of the date of the Second Closing. The number of Shares issued will be the next higher whole number of shares determined by dividing Subscription Amount by the Stock Value. The Warrants will be exercisable into the number of Warrant Shares that is equal to the number of Shares.

4. Binding Effect and Irrevocability. The Undersigned understands that this Subscription Agreement is not binding on the Corporation unless and until it is accepted by the Corporation as evidenced by the counter-execution below.

5. Indemnification. The Undersigned understands the meaning and legal consequences of the representations and warranties contained in this Subscription Agreement and agrees to indemnify and hold harmless the Corporation and the organizers, incorporators, directors and executive officers of the Corporation from and against any and all loss, damage or liability due to or arising out of a breach of any representation or warranty of the Undersigned contained in this Subscription Agreement.

6. Notices. All notices and other communications required or permitted under this Subscription Agreement shall be in writing, and shall be deemed to have been given if delivered personally, or mailed, postage prepaid, by first class mail, to the parties at the addresses set forth in this Subscription Agreement or such other address as a party may specify to the other by notice.

7. Succession and Assignment. This Subscription Agreement shall be binding upon and shall inure to the benefit of the executors, administrators, heirs, legatees, devisees, assigns, legal representatives, and successors of the parties hereto, and may not be assigned or transferred by either party without the consent of the other party.

8. Amendments and Waivers. This Subscription Agreement may be amended or modified only by an instrument signed by the parties hereto. A waiver of any provision of this Subscription Agreement must be in writing, designated as such, and signed by the party against whom enforcement of that waiver is sought. The waiver by a party of a breach of any provision of this Subscription Agreement shall not operate or be construed as a waiver of any subsequent or other breach thereof.

9. Governing Law. This Subscription Agreement shall be enforced, governed and construed in accordance with the laws of the State of Delaware.

*****

 

4


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

EXECUTED AND SUBMITTED BY THE UNDERSIGNED:

Date: December 27, 2011

/s/ Diana L. Brandenburg                                                          /   /s/ Raymond James and Associates, Inc., as Custodian

Signature of Subscriber                                                                  Signature of Subscriber’s Spouse (if applicable)

Diana L. Brandenburg                                                              /    Raymond James and Associates, Inc., as Custodian

(Type or print name of Subscriber as it appears above          Type or print name of Subscriber’s Spouse as it appears above)

___________________ _________________________/_____________________________________________________

Federal Tax Identification No. of Subscriber                             Federal Tax Identification No. of Subscriber’s Spouse

 

 

Street Address

 

 

City                                                          State                     Zip

 

**IMPORTANT**    Please print below exactly how you want your name(s) listed on your securities certificate:
   Diana L. Brandenburg

 

ACCEPTED BY
  ViewCast.com, Inc., a Delaware corporation
by:  

/s/ Laurie L. Latham

 

Laurie L. Latham, Senior Vice President and Chief Financial Officer

Date:  

December 27, 2011

 

5


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

EXHIBIT A

FORM OF WARRANT

THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS.

WARRANT TO PURCHASE COMMON STOCK

of VIEWCAST.COM, INC.

Void after December 31, 2014

This Warrant is issued to ______ (“Holder”) by ViewCast.com, Inc., a Delaware corporation (the “Company”), on December __, 2011 (the “Warrant Issue Date”). This Warrant is issued pursuant to the terms of that certain Subscription Agreement for Units Consisting of Shares of Common Stock and Warrants for Shares of Common Stock dated December __, 2011, by and between the Company and the Holder (the “Subscription Agreement”).

1. Purchase Shares. Subject to the terms and conditions hereinafter set forth herein, the Holder is entitled, upon surrender of this Warrant at the principal office of the Company (or at such other place as the Company shall notify the holder hereof in writing), to purchase from the Company up to _____________ (_____) fully paid and nonassessable shares of Common Stock, par value $0.0001, of the Company, as constituted on the Warrant Issue Date (the “Common Stock”). The number of shares of Common Stock issuable pursuant to this Section 1 (the “Shares”) shall be subject to adjustment pursuant to Section 9 hereof.

2. Exercise Price. The purchase price for the Shares shall be $____ per share which is 110% of the Stock Value as defined in the Subscription Agreement, as adjusted from time to time pursuant to Section 9 hereof (the “Exercise Price”).

3. Exercise Period. This Warrant shall be exercisable commencing on the Warrant Issue Date and shall expire and be of no further force or effect at 4:30 pm (Dallas time) on December 31, 2014 (the “Expiration Date”).

 

6


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

4. Method of Exercise. While this Warrant remains outstanding and exercisable in accordance with Section 3 above, the Holder may exercise, in whole or in part, the purchase rights evidenced hereby. Such exercise shall be effected by:

(a) the surrender of the Warrant, together with a duly executed copy of the form of Notice of Election attached hereto, to the Secretary of the Company at its principal office; and

(b) the payment to the Company of an amount equal to the aggregate Exercise Price for the number of Shares being purchased by certified check or bank draft.

5. Accredited Investor. As also indicated in the Subscription Agreement, on the date hereof, the Holder is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”). Immediately prior to any exercise of the Warrant pursuant to Section 4, the Holder shall provide the Company with a representation that it is still an “accredited investor” as defined in Rule 501(a) under the Securities Act.

6. Investment Representation. Unless the Shares are issued to the Holder in a transaction registered under applicable federal and state securities laws, by its execution hereof, the Holder represents and warrants to the Company that all Shares which may be purchased hereunder will be acquired by the Holder for investment purposes for its own account and not with any present intent for resale or distribution in violation of federal or state securities laws. Unless the Shares are issued to the Holder in a transaction registered under the applicable federal and state securities laws, all certificates issued with respect to the Shares shall bear the appropriate restrictive investment legend (such legend to be in substantially the same form as set forth in the Subscription Agreement) and shall be held indefinitely, unless they are subsequently registered under the applicable federal and state securities laws or the Holder obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required.

7. Certificates for Shares. Upon the exercise of the purchase rights evidenced by Section 4 of this Warrant, one or more certificates for the number of Shares so purchased shall be issued as soon as practicable thereafter (with appropriate restrictive legends, if applicable), and in any event within ten (10) days of the delivery of the Notice of Election.

8. Issuance of Shares. The Company covenants that the Shares, when issued pursuant to the exercise of this Warrant under Section 4, will be duly and validly issued, fully paid and nonassessable.

9. Adjustment of Exercise Price and Number of Shares. The number of and kind of securities purchasable upon exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time as follows:

(a) Subdivisions, Combinations and Other Issuances. If the Company shall at any time prior to the expiration of this Warrant subdivide its Common Stock, by split-up or otherwise, or combine its Common Stock, or issue additional shares of its Common Stock as a

 

7


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

dividend or distribution with respect to any shares of its Common Stock, the number of Shares issuable on the exercise of this Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend or distribution, or proportionately decreased in the case of a combination. Appropriate adjustments shall also be made to the purchase price payable per share, but the aggregate purchase price payable for the total number of Shares purchasable under this Warrant (as adjusted under this Section 9(a)) shall remain the same. Any adjustment under this Section 9(a) shall become effective at the close of business on the date the subdivision or combination becomes effective, or as of the record date of such dividend or distribution, or in the event that no record date is fixed, upon the making of such dividend or distribution.

(b) Reclassification, Reorganization and Consolidation. In case of any reclassification, capital reorganization, or change in the Common Stock of the Company (other than as a result of a subdivision, combination, or stock dividend provided for in Section 9(a) above), then, as a condition of such reclassification, reorganization, or change, lawful provision shall be made, and duly executed documents evidencing the same from the Company or its successor shall be delivered to the Holder, so that the Holder shall have the right at any time prior to the expiration of this Warrant to purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind and amount of shares of stock and other securities and property receivable in connection with such reclassification, reorganization, or change by a holder of the same number of shares of Common Stock as were purchasable by the Holder immediately prior to such reclassification, reorganization, or change. In any such case, appropriate provisions shall be made with respect to the rights and interest of the Holder so that the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable upon exercise hereof, and appropriate adjustments shall be made to the purchase price per share payable hereunder, provided the aggregate purchase price shall remain the same.

(c) Carry Over of Adjustments. No adjustment of the Exercise Price shall be made if the amount of such adjustment shall be less than 1% of the Exercise Price in effect immediately prior to the event giving rise to the adjustment, provided, however, that in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to at least 1% of the Exercise Price.

(d) Discretionary Reduction in Exercise Price. The Company may at any time or from time to time reduce the Exercise Price of the Warrant.

(e) Notice of Adjustment. Upon any adjustment of the number of Shares and upon any adjustment of the Exercise Price, then and in each such case the Company shall give written notice thereof to the Holder, which notice shall state the Exercise Price and the number of Shares or other securities subject to the unexercised Warrant resulting from such adjustment, and shall set forth in reasonable detail the method of calculation and the facts upon which such calculation is based.

(f) Other Notices. In case at any time prior to the Expiration Date:

 

8


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

  (i)

the Company shall declare any dividend or distribution upon its shares of Common Stock payable in shares;

 

  (ii)

the Company shall offer for subscription pro rata to the holders of its shares of Common Stock any additional shares of any class or other rights;

 

  (iii)

there shall be any capital reorganization or reclassification of the capital stock of the Company, or consolidation, amalgamation or merger of the Company with, or sale of all or substantially all of its assets to, another corporation; or

 

  (iv)

there shall be a voluntary dissolution, liquidation or winding-up of the Company,

then, in any one or more of such cases, the Company shall give to the Holder (A) at least 10 days’ prior written notice of the date on which a record date shall be taken for such dividend, distribution or subscription rights or for determining rights to vote in respect of any such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up and (B) in the case of any such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up, at least 10 days’ prior written notice of the date when the same shall take place. Such notice in accordance with the foregoing clause (A) shall also specify, in the case of any such dividend, distribution or subscription rights, the date on which the holders of shares of Common Stock shall be entitled thereto, and such notice in accordance with the foregoing clause (B) shall also specify the date on which the holders of shares of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up, as the case may be.

(g) Shares to be Reserved. The Company will at all times keep available, and reserve out of its authorized shares of Common Stock, solely for the purpose of issue upon the exercise of the Warrant, such number of Shares as shall then be issuable upon the exercise of the Warrant. The Company will take all such actions as are within its power to ensure that all such Shares may be so issued without violation of any applicable law.

10. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant, but in lieu of such fractional shares the Company shall make a cash payment therefor on the basis of the Exercise Price then in effect.

 

9


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

11. No Stockholder Rights. Prior to exercise of this Warrant, the Holder shall not be entitled to any rights of a stockholder with respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon, exercise preemptive rights or be notified of stockholder meetings, and such holder shall not be entitled to any notice or other communication concerning the business or affairs of the Company. However, nothing in this Section 11 shall limit the right of the Holder to be provided the Notices required under this Warrant. Notwithstanding the foregoing, the Holder shall be deemed a stockholder and shall be entitled to all of the rights of a stockholder with respect to the Shares immediately upon satisfying all of Section 4.

12. Participation in Rights Distribution. If at any time, while this Warrant, or any portion thereof, is outstanding and unexpired, the Company shall issue to all holders of its Common Stock rights (the “Rights”) entitling the holders thereof to purchase any shares of capital stock, the Company also shall issue to the Holder identical Rights, with such number of Rights to be issued to the Holder being based on the number of shares of Common Stock which Holder would then be entitled to receive if this Warrant had been exercised in full immediately prior to the issuance of the Rights. Prior to issuing the Rights, the Company shall provide notice to the Holder as set forth in Section 9(f). In connection with issuing the Rights, the Company will take all necessary corporate action to at all times keep available and reserve out of its authorized shares of Common Stock the number of shares of Common Stock issuable upon exercise of the Rights.

13. Transfers of Warrant. The Holder of the Warrants may transfer this Warrant without restriction to an Affiliate (as defined in Rule 405 promulgated pursuant to the Securities Act of 1933, as amended) of the Holder and in compliance with all applicable federal and state securities laws. In order for a transferee of this Warrant to receive any of the benefits of such Warrant, the Company must have received notice of such transfer, pursuant to Section 17 hereof, in the form of assignment attached hereto.

14. Replacement. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant or, in the case of mutilation, upon surrender of this Warrant, the Company will issue to the Holder a replacement warrant (containing the same terms and conditions as this Warrant).

15. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company and the Holder hereof and their respective successors and permitted assigns as set forth in Section 13.

16. Amendments and Waivers. Any term of this Warrant may be amended and the observance of any term of this Warrant may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the Holder.

17. Notices. All notices required under this Warrant shall be deemed to have been given or made for all purposes (i) upon personal delivery, (ii) upon confirmation receipt that the communication was successfully sent to the applicable number if sent by facsimile; (iii) one business day after being sent, when sent by professional overnight courier service, or (iv)

 

10


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

five days after posting when sent by registered or certified mail. Notices to the Company shall be sent to the principal office of the Company (or at such other place as the Company shall notify the Holder hereof in writing). Notices to the Holder shall be sent to the address of the Holder on the books of the Company (or at such other place as the Holder shall notify the Company hereof in writing).

18. Captions. The section and subsection headings of this Warrant are inserted for convenience only and shall not constitute a part of this Warrant in construing or interpreting any provision hereof.

19. Governing Law. This Warrant shall be governed by the laws of the State of Delaware.

 

11


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

IN WITNESS WHEREOF, ViewCast.com, Inc. caused this Warrant to be executed by an officer thereunto duly authorized.

 

VIEWCAST.COM, INC.

By:    
 

Laurie L. Latham

  Senior Vice President and Chief Financial Officer

Agreed to and Acknowledged by:

 

 

 

By:    
Name:    
Title:    

 

12


ViewCast Corporation

FORM OF

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

FORM OF ELECTION TO EXERCISE

The undersigned hereby irrevocably elects to exercise the number of Warrants of VIEWCAST.COM, INC. set out below for the number of Shares (or other property or securities subject thereto) as set forth below:

 

  (a)

Number of Shares to be Acquired:                                                                  

 

  (b)

Exercise Price per Share:                                                                                  

 

  (c)

Aggregate Purchase Price [(a) multiplied by (b)]:                                              

and hereby tenders a certified check, bank draft or cash for such aggregate purchase price, and directs such Shares to be registered and a certificate therefore to be issued as directed below.

DATED this ____________ day of ______________________, _____.

 

Per:    

 

Direction as to Registration

     
Name of Registered Holder:        
Address of Registered Holder:        
       
       
       
       


ViewCast Corporation

SUBSCRIPTION AGREEMENT

FOR UNITS CONSISTING OF SHARES OF COMMON STOCK

AND WARRANTS FOR SHARES OF COMMON STOCK

 

FORM OF ASSIGNMENT

(To be executed by the registered holder if such holder

desires to transfer the Warrant.)

FOR VALUE RECEIVED ______________________________ hereby sells, assigns and transfers unto ______________________________.

(Please print name and address of transferee)

this Warrant, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ______________________________ Attorney, to transfer the within Warrant on the books of the within-named Company, with full power of substitution.

Dated: __________________, 20__

 

Signature    
(Signature must conform in all respect to name of holder as specified on the face of the Warrant.)
 
(Insert Social Security or Other Identifying Number of Holder)

 

14

EX-99.10 5 d282900dex9910.htm EXHIBIT 99.10 Exhibit 99.10

Exhibit 99.10

THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS.

WARRANT TO PURCHASE COMMON STOCK

of VIEWCAST.COM, INC.

No. 212

Void after December 31, 2014

This Warrant is issued to David W. Brandenburg (“Holder”) by ViewCast.com, Inc., a Delaware corporation (the “Company”), on December 27, 2011 (the “Warrant Issue Date”). This Warrant is issued pursuant to the terms of that certain Subscription Agreement for Units Consisting of Shares of Common Stock and Warrants for Shares of Common Stock dated December 27, 2011, by and between the Company and the Holder (the “Subscription Agreement”).

1. Purchase Shares. Subject to the terms and conditions hereinafter set forth herein, the Holder is entitled, upon surrender of this Warrant at the principal office of the Company (or at such other place as the Company shall notify the holder hereof in writing), to purchase from the Company up to Eight Hundred Eighty Eight Thousand Three Hundred Thirty One (888,331) fully paid and nonassessable shares of Common Stock, par value $0.0001, of the Company, as constituted on the Warrant Issue Date (the “Common Stock”). The number of shares of Common Stock issuable pursuant to this Section 1 (the “Shares”) shall be subject to adjustment pursuant to Section 9 hereof.

2. Exercise Price. The purchase price for the Shares shall be $0.12382780 per share which is 110% of the Stock Value as defined in the Subscription Agreement, as adjusted from time to time pursuant to Section 9 hereof (the “Exercise Price”).

3. Exercise Period. This Warrant shall be exercisable commencing on the Warrant Issue Date and shall expire and be of no further force or effect at 4:30 pm (Dallas time) on December 31, 2014 (the “Expiration Date”).

4. Method of Exercise. While this Warrant remains outstanding and exercisable in accordance with Section 3 above, the Holder may exercise, in whole or in part, the purchase rights evidenced hereby. Such exercise shall be effected by:


(a) the surrender of the Warrant, together with a duly executed copy of the form of Notice of Election attached hereto, to the Secretary of the Company at its principal office; and

(b) the payment to the Company of an amount equal to the aggregate Exercise Price for the number of Shares being purchased by certified check or bank draft.

5. Accredited Investor. As also indicated in the Subscription Agreement, on the date hereof, the Holder is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”). Immediately prior to any exercise of the Warrant pursuant to Section 4, the Holder shall provide the Company with a representation that it is still an “accredited investor” as defined in Rule 501(a) under the Securities Act.

6. Investment Representation. Unless the Shares are issued to the Holder in a transaction registered under applicable federal and state securities laws, by its execution hereof, the Holder represents and warrants to the Company that all Shares which may be purchased hereunder will be acquired by the Holder for investment purposes for its own account and not with any present intent for resale or distribution in violation of federal or state securities laws. Unless the Shares are issued to the Holder in a transaction registered under the applicable federal and state securities laws, all certificates issued with respect to the Shares shall bear the appropriate restrictive investment legend (such legend to be in substantially the same form as set forth in the Subscription Agreement) and shall be held indefinitely, unless they are subsequently registered under the applicable federal and state securities laws or the Holder obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required.

7. Certificates for Shares. Upon the exercise of the purchase rights evidenced by Section 4 of this Warrant, one or more certificates for the number of Shares so purchased shall be issued as soon as practicable thereafter (with appropriate restrictive legends, if applicable), and in any event within ten (10) days of the delivery of the Notice of Election.

8. Issuance of Shares. The Company covenants that the Shares, when issued pursuant to the exercise of this Warrant under Section 4, will be duly and validly issued, fully paid and nonassessable.

9. Adjustment of Exercise Price and Number of Shares. The number of and kind of securities purchasable upon exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time as follows:

(a) Subdivisions, Combinations and Other Issuances. If the Company shall at any time prior to the expiration of this Warrant subdivide its Common Stock, by split-up or otherwise, or combine its Common Stock, or issue additional shares of its Common Stock as a dividend or distribution with respect to any shares of its Common Stock, the number of Shares issuable on the exercise of this Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend or distribution, or proportionately decreased in the case of a combination. Appropriate adjustments shall also be made to the purchase price payable per share, but the aggregate purchase price payable for the total number of Shares purchasable under this Warrant (as adjusted under this Section 9(a)) shall remain the same. Any adjustment under this Section 9(a) shall become effective at the close of business on the date the subdivision or combination becomes effective, or as of the record date of such dividend or distribution, or in the event that no record date is fixed, upon the making of such dividend or distribution.

 

2


(b) Reclassification, Reorganization and Consolidation. In case of any reclassification, capital reorganization, or change in the Common Stock of the Company (other than as a result of a subdivision, combination, or stock dividend provided for in Section 9(a) above), then, as a condition of such reclassification, reorganization, or change, lawful provision shall be made, and duly executed documents evidencing the same from the Company or its successor shall be delivered to the Holder, so that the Holder shall have the right at any time prior to the expiration of this Warrant to purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind and amount of shares of stock and other securities and property receivable in connection with such reclassification, reorganization, or change by a holder of the same number of shares of Common Stock as were purchasable by the Holder immediately prior to such reclassification, reorganization, or change. In any such case, appropriate provisions shall be made with respect to the rights and interest of the Holder so that the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable upon exercise hereof, and appropriate adjustments shall be made to the purchase price per share payable hereunder, provided the aggregate purchase price shall remain the same.

(c) Carry Over of Adjustments. No adjustment of the Exercise Price shall be made if the amount of such adjustment shall be less than 1% of the Exercise Price in effect immediately prior to the event giving rise to the adjustment, provided, however, that in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to at least 1% of the Exercise Price.

(d) Discretionary Reduction in Exercise Price. The Company may at any time or from time to time reduce the Exercise Price of the Warrant.

(e) Notice of Adjustment. Upon any adjustment of the number of Shares and upon any adjustment of the Exercise Price, then and in each such case the Company shall give written notice thereof to the Holder, which notice shall state the Exercise Price and the number of Shares or other securities subject to the unexercised Warrant resulting from such adjustment, and shall set forth in reasonable detail the method of calculation and the facts upon which such calculation is based.

(f) Other Notices. In case at any time prior to the Expiration Date:

 

  (i)

the Company shall declare any dividend or distribution upon its shares of Common Stock payable in shares;

 

  (ii)

the Company shall offer for subscription pro rata to the holders of its shares of Common Stock any additional shares of any class or other rights;

 

3


  (iii)

there shall be any capital reorganization or reclassification of the capital stock of the Company, or consolidation, amalgamation or merger of the Company with, or sale of all or substantially all of its assets to, another corporation; or

 

  (iv)

there shall be a voluntary dissolution, liquidation or winding-up of the Company,

then, in any one or more of such cases, the Company shall give to the Holder (A) at least 10 days’ prior written notice of the date on which a record date shall be taken for such dividend, distribution or subscription rights or for determining rights to vote in respect of any such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up and (B) in the case of any such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up, at least 10 days’ prior written notice of the date when the same shall take place. Such notice in accordance with the foregoing clause (A) shall also specify, in the case of any such dividend, distribution or subscription rights, the date on which the holders of shares of Common Stock shall be entitled thereto, and such notice in accordance with the foregoing clause (B) shall also specify the date on which the holders of shares of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up, as the case may be.

(g) Shares to be Reserved. The Company will at all times keep available, and reserve out of its authorized shares of Common Stock, solely for the purpose of issue upon the exercise of the Warrant, such number of Shares as shall then be issuable upon the exercise of the Warrant. The Company will take all such actions as are within its power to ensure that all such Shares may be so issued without violation of any applicable law.

10. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant, but in lieu of such fractional shares the Company shall make a cash payment therefor on the basis of the Exercise Price then in effect.

11. No Stockholder Rights. Prior to exercise of this Warrant, the Holder shall not be entitled to any rights of a stockholder with respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon, exercise preemptive rights or be notified of stockholder meetings, and such holder shall not be entitled to any notice or other communication concerning the business or affairs of the Company. However, nothing in this Section 11 shall limit the right of the Holder to be provided the Notices required under this Warrant. Notwithstanding the foregoing, the Holder shall be deemed a stockholder and shall be entitled to all of the rights of a stockholder with respect to the Shares immediately upon satisfying all of Section 4.

12. Participation in Rights Distribution. If at any time, while this Warrant, or any portion thereof, is outstanding and unexpired, the Company shall issue to all holders of its Common Stock rights (the “Rights”) entitling the holders thereof to purchase any shares of capital stock, the Company also shall issue to the Holder identical Rights, with such number of Rights to be issued to the Holder being based on the number of shares of Common Stock which Holder would then be entitled to receive if this Warrant had been exercised in full immediately prior to the issuance of the Rights. Prior to issuing the Rights, the Company shall provide notice to the Holder as set forth in

 

4


Section 9(f). In connection with issuing the Rights, the Company will take all necessary corporate action to at all times keep available and reserve out of its authorized shares of Common Stock the number of shares of Common Stock issuable upon exercise of the Rights.

13. Transfers of Warrant. The Holder of the Warrants may transfer this Warrant without restriction to an Affiliate (as defined in Rule 405 promulgated pursuant to the Securities Act of 1933, as amended) of the Holder and in compliance with all applicable federal and state securities laws. In order for a transferee of this Warrant to receive any of the benefits of such Warrant, the Company must have received notice of such transfer, pursuant to Section 17 hereof, in the form of assignment attached hereto.

14. Replacement. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant or, in the case of mutilation, upon surrender of this Warrant, the Company will issue to the Holder a replacement warrant (containing the same terms and conditions as this Warrant).

15. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company and the Holder hereof and their respective successors and permitted assigns as set forth in Section 13.

16. Amendments and Waivers. Any term of this Warrant may be amended and the observance of any term of this Warrant may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the Holder.

17. Notices. All notices required under this Warrant shall be deemed to have been given or made for all purposes (i) upon personal delivery, (ii) upon confirmation receipt that the communication was successfully sent to the applicable number if sent by facsimile; (iii) one business day after being sent, when sent by professional overnight courier service, or (iv) five days after posting when sent by registered or certified mail. Notices to the Company shall be sent to the principal office of the Company (or at such other place as the Company shall notify the Holder hereof in writing). Notices to the Holder shall be sent to the address of the Holder on the books of the Company (or at such other place as the Holder shall notify the Company hereof in writing).

18. Captions. The section and subsection headings of this Warrant are inserted for convenience only and shall not constitute a part of this Warrant in construing or interpreting any provision hereof.

19. Governing Law. This Warrant shall be governed by the laws of the State of Delaware.

 

5


IN WITNESS WHEREOF, ViewCast.com, Inc. caused this Warrant to be executed by an officer thereunto duly authorized.

 

VIEWCAST.COM, INC.

By:  

/s/ Laurie L. Latham

 

Laurie L. Latham

Senior Vice President and Chief Financial

Officer

Agreed to and Acknowledged by:

 

DAVID W. BRANDENBURG
By:  

/s/ David W. Brandenburg

Name:  

David W. Brandenburg

 

6


FORM OF ELECTION TO EXERCISE

No.             

The undersigned hereby irrevocably elects to exercise the number of Warrants of VIEWCAST.COM, INC. set out below for the number of Shares (or other property or securities subject thereto) as set forth below:

 

(a)    Number of Shares to be Acquired:                                                                              

 

(b)    Exercise Price per Share:                                                                                                   

 

(c)    Aggregate Purchase Price [(a) multiplied by (b)]:                                                  

 

and hereby tenders a certified check, bank draft or cash for such aggregate purchase price, and directs such Shares to be registered and a certificate therefore to be issued as directed below.

DATED this                         day of                                         ,             .

Per:                                                          

 

Direction as to Registration               
Name of Registered Holder:                 
Address of Registered Holder:                 
                
                
                

 

7


FORM OF ASSIGNMENT

(To be executed by the registered holder if such holder

desires to transfer the Warrant.)

FOR VALUE RECEIVED                                   hereby sells, assigns and transfers unto                                 .

(Please print name and address of transferee)

this Warrant, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint Attorney, to transfer the within Warrant on the books of the within-named Company, with full power of substitution.

Dated:             , 20        

 

Signature    

(Signature must conform in all respect to name

of holder as specified on the face of the

Warrant.)

     

(Insert Social Security or Other Identifying

Number of Holder)

 

8

EX-99.11 6 d282900dex9911.htm EXHIBIT 99.11 Exhibit 99.11

Exhibit 99.11

THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS.

WARRANT TO PURCHASE COMMON STOCK

of VIEWCAST.COM, INC.

No. 213

Void after December 31, 2014

This Warrant is issued to Diana L. Brandenburg (“Holder”) by ViewCast.com, Inc., a Delaware corporation (the “Company”), on December 27, 2011 (the “Warrant Issue Date”). This Warrant is issued pursuant to the terms of that certain Subscription Agreement for Units Consisting of Shares of Common Stock and Warrants for Shares of Common Stock dated December 27, 2011, by and between the Company and the Holder (the “Subscription Agreement”).

1. Purchase Shares. Subject to the terms and conditions hereinafter set forth herein, the Holder is entitled, upon surrender of this Warrant at the principal office of the Company (or at such other place as the Company shall notify the holder hereof in writing), to purchase from the Company up to Eight Hundred Eighty Eight Thousand Three Hundred Thirty One (888,331) fully paid and nonassessable shares of Common Stock, par value $0.0001, of the Company, as constituted on the Warrant Issue Date (the “Common Stock”). The number of shares of Common Stock issuable pursuant to this Section 1 (the “Shares”) shall be subject to adjustment pursuant to Section 9 hereof.

2. Exercise Price. The purchase price for the Shares shall be $0.12382780 per share which is 110% of the Stock Value as defined in the Subscription Agreement, as adjusted from time to time pursuant to Section 9 hereof (the “Exercise Price”).

3. Exercise Period. This Warrant shall be exercisable commencing on the Warrant Issue Date and shall expire and be of no further force or effect at 4:30 pm (Dallas time) on December 31, 2014 (the “Expiration Date”).

4. Method of Exercise. While this Warrant remains outstanding and exercisable in accordance with Section 3 above, the Holder may exercise, in whole or in part, the purchase rights evidenced hereby. Such exercise shall be effected by:


(a) the surrender of the Warrant, together with a duly executed copy of the form of Notice of Election attached hereto, to the Secretary of the Company at its principal office; and

(b) the payment to the Company of an amount equal to the aggregate Exercise Price for the number of Shares being purchased by certified check or bank draft.

5. Accredited Investor. As also indicated in the Subscription Agreement, on the date hereof, the Holder is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”). Immediately prior to any exercise of the Warrant pursuant to Section 4, the Holder shall provide the Company with a representation that it is still an “accredited investor” as defined in Rule 501(a) under the Securities Act.

6. Investment Representation. Unless the Shares are issued to the Holder in a transaction registered under applicable federal and state securities laws, by its execution hereof, the Holder represents and warrants to the Company that all Shares which may be purchased hereunder will be acquired by the Holder for investment purposes for its own account and not with any present intent for resale or distribution in violation of federal or state securities laws. Unless the Shares are issued to the Holder in a transaction registered under the applicable federal and state securities laws, all certificates issued with respect to the Shares shall bear the appropriate restrictive investment legend (such legend to be in substantially the same form as set forth in the Subscription Agreement) and shall be held indefinitely, unless they are subsequently registered under the applicable federal and state securities laws or the Holder obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required.

7. Certificates for Shares. Upon the exercise of the purchase rights evidenced by Section 4 of this Warrant, one or more certificates for the number of Shares so purchased shall be issued as soon as practicable thereafter (with appropriate restrictive legends, if applicable), and in any event within ten (10) days of the delivery of the Notice of Election.

8. Issuance of Shares. The Company covenants that the Shares, when issued pursuant to the exercise of this Warrant under Section 4, will be duly and validly issued, fully paid and nonassessable.

9. Adjustment of Exercise Price and Number of Shares. The number of and kind of securities purchasable upon exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time as follows:

(a) Subdivisions, Combinations and Other Issuances. If the Company shall at any time prior to the expiration of this Warrant subdivide its Common Stock, by split-up or otherwise, or combine its Common Stock, or issue additional shares of its Common Stock as a dividend or distribution with respect to any shares of its Common Stock, the number of Shares issuable on the exercise of this Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend or distribution, or proportionately decreased in the case of a combination. Appropriate adjustments shall also be made to the purchase price payable per share, but the aggregate purchase price payable for the total number of Shares purchasable under this Warrant (as adjusted under this Section 9(a)) shall remain the same. Any adjustment under this Section 9(a) shall become effective at the close of business on the date the subdivision or combination becomes effective, or as of the record date of such dividend or distribution, or in the event that no record date is fixed, upon the making of such dividend or distribution.

 

2


(b) Reclassification, Reorganization and Consolidation. In case of any reclassification, capital reorganization, or change in the Common Stock of the Company (other than as a result of a subdivision, combination, or stock dividend provided for in Section 9(a) above), then, as a condition of such reclassification, reorganization, or change, lawful provision shall be made, and duly executed documents evidencing the same from the Company or its successor shall be delivered to the Holder, so that the Holder shall have the right at any time prior to the expiration of this Warrant to purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind and amount of shares of stock and other securities and property receivable in connection with such reclassification, reorganization, or change by a holder of the same number of shares of Common Stock as were purchasable by the Holder immediately prior to such reclassification, reorganization, or change. In any such case, appropriate provisions shall be made with respect to the rights and interest of the Holder so that the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable upon exercise hereof, and appropriate adjustments shall be made to the purchase price per share payable hereunder, provided the aggregate purchase price shall remain the same.

(c) Carry Over of Adjustments. No adjustment of the Exercise Price shall be made if the amount of such adjustment shall be less than 1% of the Exercise Price in effect immediately prior to the event giving rise to the adjustment, provided, however, that in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to at least 1% of the Exercise Price.

(d) Discretionary Reduction in Exercise Price. The Company may at any time or from time to time reduce the Exercise Price of the Warrant.

(e) Notice of Adjustment. Upon any adjustment of the number of Shares and upon any adjustment of the Exercise Price, then and in each such case the Company shall give written notice thereof to the Holder, which notice shall state the Exercise Price and the number of Shares or other securities subject to the unexercised Warrant resulting from such adjustment, and shall set forth in reasonable detail the method of calculation and the facts upon which such calculation is based.

(f) Other Notices. In case at any time prior to the Expiration Date:

 

  (i)

the Company shall declare any dividend or distribution upon its shares of Common Stock payable in shares;

 

  (ii)

the Company shall offer for subscription pro rata to the holders of its shares of Common Stock any additional shares of any class or other rights;

 

3


  (iii)

there shall be any capital reorganization or reclassification of the capital stock of the Company, or consolidation, amalgamation or merger of the Company with, or sale of all or substantially all of its assets to, another corporation; or

 

  (iv)

there shall be a voluntary dissolution, liquidation or winding-up of the Company,

then, in any one or more of such cases, the Company shall give to the Holder (A) at least 10 days’ prior written notice of the date on which a record date shall be taken for such dividend, distribution or subscription rights or for determining rights to vote in respect of any such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up and (B) in the case of any such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up, at least 10 days’ prior written notice of the date when the same shall take place. Such notice in accordance with the foregoing clause (A) shall also specify, in the case of any such dividend, distribution or subscription rights, the date on which the holders of shares of Common Stock shall be entitled thereto, and such notice in accordance with the foregoing clause (B) shall also specify the date on which the holders of shares of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, amalgamation, sale, dissolution, liquidation or winding-up, as the case may be.

(g) Shares to be Reserved. The Company will at all times keep available, and reserve out of its authorized shares of Common Stock, solely for the purpose of issue upon the exercise of the Warrant, such number of Shares as shall then be issuable upon the exercise of the Warrant. The Company will take all such actions as are within its power to ensure that all such Shares may be so issued without violation of any applicable law.

10. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant, but in lieu of such fractional shares the Company shall make a cash payment therefor on the basis of the Exercise Price then in effect.

11. No Stockholder Rights. Prior to exercise of this Warrant, the Holder shall not be entitled to any rights of a stockholder with respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon, exercise preemptive rights or be notified of stockholder meetings, and such holder shall not be entitled to any notice or other communication concerning the business or affairs of the Company. However, nothing in this Section 11 shall limit the right of the Holder to be provided the Notices required under this Warrant. Notwithstanding the foregoing, the Holder shall be deemed a stockholder and shall be entitled to all of the rights of a stockholder with respect to the Shares immediately upon satisfying all of Section 4.

12. Participation in Rights Distribution. If at any time, while this Warrant, or any portion thereof, is outstanding and unexpired, the Company shall issue to all holders of its Common Stock rights (the “Rights”) entitling the holders thereof to purchase any shares of capital stock, the Company also shall issue to the Holder identical Rights, with such number of Rights to be issued to the Holder being based on the number of shares of Common Stock which Holder would then be entitled to receive if this Warrant had been exercised in full immediately prior to the issuance of the Rights. Prior to issuing the Rights, the Company shall provide notice to the Holder as set forth in

 

4


Section 9(f). In connection with issuing the Rights, the Company will take all necessary corporate action to at all times keep available and reserve out of its authorized shares of Common Stock the number of shares of Common Stock issuable upon exercise of the Rights.

13. Transfers of Warrant. The Holder of the Warrants may transfer this Warrant without restriction to an Affiliate (as defined in Rule 405 promulgated pursuant to the Securities Act of 1933, as amended) of the Holder and in compliance with all applicable federal and state securities laws. In order for a transferee of this Warrant to receive any of the benefits of such Warrant, the Company must have received notice of such transfer, pursuant to Section 17 hereof, in the form of assignment attached hereto.

14. Replacement. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant or, in the case of mutilation, upon surrender of this Warrant, the Company will issue to the Holder a replacement warrant (containing the same terms and conditions as this Warrant).

15. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company and the Holder hereof and their respective successors and permitted assigns as set forth in Section 13.

16. Amendments and Waivers. Any term of this Warrant may be amended and the observance of any term of this Warrant may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the Holder.

17. Notices. All notices required under this Warrant shall be deemed to have been given or made for all purposes (i) upon personal delivery, (ii) upon confirmation receipt that the communication was successfully sent to the applicable number if sent by facsimile; (iii) one business day after being sent, when sent by professional overnight courier service, or (iv) five days after posting when sent by registered or certified mail. Notices to the Company shall be sent to the principal office of the Company (or at such other place as the Company shall notify the Holder hereof in writing). Notices to the Holder shall be sent to the address of the Holder on the books of the Company (or at such other place as the Holder shall notify the Company hereof in writing).

18. Captions. The section and subsection headings of this Warrant are inserted for convenience only and shall not constitute a part of this Warrant in construing or interpreting any provision hereof.

19. Governing Law. This Warrant shall be governed by the laws of the State of Delaware.

 

5


IN WITNESS WHEREOF, ViewCast.com, Inc. caused this Warrant to be executed by an officer thereunto duly authorized.

 

VIEWCAST.COM, INC.
By:  

/s/ Laurie L. Latham

 

Laurie L. Latham

Senior Vice President and Chief Financial Officer

Agreed to and Acknowledged by:

DIANA L. BRANDENBURG

 

By:   /s/ Diana L. Brandenburg
  Name: Diana L. Brandenburg

 

6


FORM OF ELECTION TO EXERCISE

No. _____

The undersigned hereby irrevocably elects to exercise the number of Warrants of VIEWCAST.COM, INC. set out below for the number of Shares (or other property or securities subject thereto) as set forth below:

 

  (a)

Number of Shares to be Acquired: ___________________

 

  (b)

Exercise Price per Share: __________________________

 

  (c)

Aggregate Purchase Price [(a) multiplied by (b)]: _______________________

and hereby tenders a certified check, bank draft or cash for such aggregate purchase price, and directs such Shares to be registered and a certificate therefore to be issued as directed below.

DATED this _______ day of ______________,________.

Per: ___________

 

Direction as to Registration    
Name of Registered Holder:  

 

 
Address of Registered Holder:  

 

 
 

 

 
 

 

 
 

 

 

 

7


FORM OF ASSIGNMENT

(To be executed by the registered holder if such holder

desires to transfer the Warrant.)

FOR VALUE RECEIVED ______ hereby sells, assigns and transfers unto ___________.

(Please print name and address of transferee)

this Warrant, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint _______ Attorney, to transfer the within Warrant on the books of the within-named Company, with full power of substitution.

Dated: ________, 20_______

 

Signature    
(Signature must conform in all respect to name of holder as specified on the face of the Warrant.)

 

(Insert Social Security or Other Identifying Number of Holder)

 

8