Exhibit 4.3


 


THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT.  THIS WARRANT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION FROM REGISTRATION UNDER THE
FOREGOING LAWS.


 


                SUBJECT TO THE PROVISIONS OF SECTION 10 HEREOF, THIS
WARRANT SHALL BE VOID AFTER 5:00 P.M. EASTERN TIME ON APRIL 12, 2007 (the
“EXPIRATION DATE”).


 


No. CSW-___


 


FIRST
VIRTUAL COMMUNICATIONS, INC.


 


WARRANT
TO PURCHASE _________ SHARES OF


COMMON
STOCK, PAR VALUE $0.001 PER SHARE


 


                For VALUE RECEIVED, ____________________
(“Warrantholder”), is entitled to purchase, subject to the provisions of this
Warrant, from First Virtual Communications, Inc., a Delaware corporation
(“Company”), at any time after October 11, 2002 and not later than 5:00 P.M.,
Eastern time, on the Expiration Date (as defined above), at an exercise price
per share equal to $1.01 (the exercise price in effect being herein called the
“Warrant Price”), _________ shares (“Warrant Shares”) of the Company’s Common
Stock, par value $0.001 per share (“Common Stock”).  The number of Warrant Shares purchasable upon exercise of this
Warrant and the Warrant Price shall be subject to adjustment from time to time
as described herein.


 


                Section 1.               Registration.  The Company shall maintain books for the
transfer and registration of the Warrant. 
Upon the initial issuance of this Warrant, the Company shall issue and
register the Warrant in the name of the Warrantholder.


 


                Section 2.               Transfers.  As provided herein, this Warrant may be
transferred only pursuant to a registration statement filed under the
Securities Act of 1933, as amended (“Securities Act”), or an exemption from
such registration.  Subject to such
restrictions, the Company shall transfer this Warrant from time to time upon
the books to be maintained by the Company for that purpose, upon surrender
thereof for transfer properly endorsed or 
accompanied by appropriate instructions for transfer and such other
documents as may be reasonably required by the Company, including, if required
by the Company, an opinion of its counsel to the effect that such transfer is
exempt from the registration requirements of the Securities Act of 1933, to
establish that such transfer is being made in accordance with the terms hereof,
and a new Warrant shall be issued to the transferee and the surrendered Warrant
shall be canceled by the Company.


 

















 


                Section 3.               Exercise
of Warrant.  Subject to the
provisions hereof, the Warrantholder may exercise this Warrant in whole or in
part at any time upon surrender of the Warrant, together with delivery of the
duly executed Warrant exercise form attached hereto as Appendix A (the
“Exercise Agreement”) and payment by cash, certified check or wire transfer of
funds for the aggregate Warrant Price for that number of Warrant Shares then
being purchased, to the Company during normal business hours on any business
day at the Company’s principal executive offices (or such other office or
agency of the Company as it may designate by notice to the holder hereof).  The Warrant Shares so purchased shall be
deemed to be issued to the holder hereof or such holder’s designee, as the
record owner of such shares, as of the close of business on the date on which
this Warrant shall have been surrendered (or evidence of loss, theft or
destruction thereof and security or indemnity satisfactory to the Company), the
Warrant Price shall have been paid and the completed Exercise Agreement shall
have been delivered.  Certificates for
the Warrant Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding three (3) business days, after this
Warrant shall have been so exercised. 
The certificates so delivered shall be in such denominations as may be
requested by the holder hereof and shall be registered in the name of such
holder or such other name as shall be designated by such holder.  If this Warrant shall have been exercised
only in part, then, unless this Warrant has expired, the Company shall, at its
expense, at the time of delivery of such certificates, deliver to the holder a
new Warrant representing the number of shares with respect to which this
Warrant shall not then have been exercised. 
As used herein, “business day” means a day, other than a Saturday or
Sunday, on which banks in New York City are open for the general transaction of
business.  Each exercise hereof shall
constitute the re-affirmation by the Warrantholder that the representations and
warranties contained in Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 of the
Purchase Agreement (as defined below) are true and correct in all respects with
respect to the Warrantholder as of the time of such exercise.


 


                Section 4.               Compliance
with the Securities Act of 1933. The Company may cause the legend set forth
on the first page of this Warrant to be set forth on each Warrant or similar
legend on any security issued or issuable upon exercise of this Warrant, unless
counsel for the Company is of the opinion as to any such security that such
legend is unnecessary.


 


                Section 5.               Payment
of Taxes.  The Company will pay any
documentary stamp taxes attributable to the initial issuance of Warrant Shares
issuable upon the exercise of the Warrant; provided, however, that the Company
shall not be required to pay any tax or taxes which may be payable in respect
of any transfer involved in the issuance or delivery of any certificates for
Warrant Shares in a name other than that of the registered holder of this
Warrant in respect of which such shares are issued, and in such case, the
Company shall not be required to issue or deliver any certificate for Warrant
Shares or any Warrant until the person requesting the same has paid to the
Company the amount of such tax or has established to the Company’s reasonable
satisfaction that such tax has been paid. 
The holder shall be responsible for income taxes due under federal,
state or other law, if any such tax is due.


 


                Section 6.               Mutilated
or Missing Warrants.  In case this
Warrant shall be mutilated, lost, stolen, or destroyed, the Company shall issue
in exchange and substitution of and upon 


 


 


2

















 


cancellation of the
mutilated Warrant, or in lieu of and substitution for the Warrant lost, stolen
or destroyed, a new Warrant of like tenor and for the purchase of a like number
of Warrant Shares, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction of the Warrant, and with respect
to a lost, stolen or destroyed Warrant, reasonable indemnity or bond with
respect thereto, if requested by the Company.


 


                Section 7.               Reservation
of Common Stock.  The Company hereby
represents and warrants that there have been reserved, and the Company shall at
all applicable times keep reserved until issued (if necessary) as contemplated
by this Section 7, out of the authorized and unissued shares of Common Stock,
sufficient shares to provide for the exercise of the rights of purchase
represented by this Warrant.  The
Company agrees that all Warrant Shares issued upon due exercise of the Warrant
shall be, at the time of delivery of the certificates for such Warrant Shares,
duly authorized, validly issued, fully paid and non-assessable shares of Common
Stock of the Company.


 


                Section 8.               Adjustments.  Subject and pursuant to the provisions of
this Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.


 


                                (a)           If
the Company shall, at any time or from time to time while this Warrant is
outstanding, pay a dividend or make a distribution on its Common Stock in
shares of Common Stock, subdivide its outstanding shares of Common Stock into a
greater number of shares or combine its outstanding shares of Common Stock into
a smaller number of shares or issue by reclassification of its outstanding
shares of Common Stock any shares of its capital stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then the number of Warrant Shares purchasable
upon exercise of the Warrant and the Warrant Price in effect immediately prior
to the date upon which such change shall become effective, shall be adjusted by
the Company so that the Warrantholder thereafter exercising the Warrant shall
be entitled to receive the number of shares of Common Stock or other capital
stock which the Warrantholder would have received if the Warrant had been
exercised immediately prior to such event upon payment of a Warrant Price that
has been adjusted to reflect a fair allocation of the economics of such event
to the Warrantholder.  Such adjustments
shall be made successively whenever any event listed above shall occur.


 


                                (b)           If
any capital reorganization, reclassification of the capital stock of the
Company, consolidation or merger of the Company with another corporation in
which the Company is not the survivor, or sale, transfer or other disposition
of all or substantially all of the Company’s assets to another corporation
shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition,
lawful and adequate provision shall be made whereby each Warrantholder shall
thereafter have the right to purchase and receive upon the basis and upon the
terms and conditions herein specified and in lieu of the Warrant Shares
immediately theretofore issuable upon exercise of the Warrant, such shares of
stock, securities or assets as would have been issuable or payable with respect
to or in exchange for a number of Warrant Shares equal to the number of Warrant
Shares immediately theretofore issuable upon exercise of the Warrant, had such
reorganization, reclassification,


 


 


3

















 


consolidation, merger,
sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of
each Warrantholder to the end that the provisions hereof (including, without
limitation, provision for adjustment of the Warrant Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any
shares of stock, securities or properties thereafter deliverable upon the
exercise thereof.  The Company shall not
effect any such consolidation, merger, sale, transfer or other disposition
unless prior to or simultaneously with the consummation thereof the successor
corporation (if other than the Company) resulting from such consolidation or
merger, or the corporation purchasing or otherwise acquiring such assets or
other appropriate corporation or entity shall assume the obligation to deliver
to the holder of the Warrant, at the last address of such holder appearing on
the books of the Company, such shares of stock, securities or assets as, in accordance
with the foregoing provisions, such holder may be entitled to purchase, and the
other obligations under this Warrant. 
The provisions of this paragraph (b) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, sales, transfers
or other dispositions.


 


                                (c)           In
case the Company shall fix a payment date for the making of a distribution to
all holders of Common Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is the continuing
corporation) of evidences of indebtedness or assets (other than cash dividends
or cash distributions payable out of consolidated earnings or earned surplus or
dividends or distributions referred to in Section 8(a)), or subscription rights
or warrants, the Warrant Price to be in effect after such payment date shall be
determined by multiplying the Warrant Price in effect immediately prior to such
payment date by a fraction, the numerator of which shall be the total number of
shares of Common Stock outstanding multiplied by the Market Price (as defined
below) per share of Common Stock immediately prior to such payment date, less
the fair market value (as determined by the Company’s Board of Directors in
good faith) of said assets or evidences of indebtedness so distributed, or of
such subscription rights or warrants, and the denominator of which shall be the
total number of shares of Common Stock outstanding multiplied by such Market
Price per share of Common Stock immediately prior to such payment date.  “Market Price” as of a particular date (the
“Valuation Date”) shall mean the following: (a) if the Common Stock is then
listed on a national stock exchange, the closing sale price of one share of
Common Stock on such exchange on the last trading day prior to the Valuation
Date; (b) if the Common Stock is then quoted on The Nasdaq Stock Market, Inc.
(“Nasdaq”), the closing sale price of one share of Common Stock on Nasdaq on
the last trading day prior to the Valuation Date or, if no such closing sale
price is available, the average of the high bid and the low asked price quoted
on Nasdaq on the last trading day prior to the Valuation Date; or (c) if the
Common Stock is not then listed on a national stock exchange or quoted on
Nasdaq, the Fair Market Value of one share of Common Stock as of the Valuation
Date, shall be determined in good faith by the Board of Directors of the
Company and the Warrantholder.  The
Board of Directors of the Company shall respond promptly, in writing, to an
inquiry by the Warrantholder prior to the exercise hereunder as to the Market
Value of a share of Common Stock as determined by the Board of Directors of the
Company.  In the event that the Board of
Directors of the Company and the Warrantholder are unable to agree upon the
Market Value in respect of subpart (c) hereof, the Company and the
Warrantholder shall jointly select an appraiser, who is experienced in such
matters.  The decision


 


 


4

















 


of such appraiser shall
be final and conclusive, and the cost of such appraiser shall be borne evenly
by the Company and the Warrantholder. 
Such adjustment shall be made successively whenever such a payment date
is fixed.


 


                                (d)           For the term of this Warrant, in
addition to the provisions contained above, the Warrant Price shall be subject
to adjustment as provided below. An adjustment to the Warrant Price shall
become effective immediately after the payment date in the case of each
dividend or distribution and immediately after the effective date of each other
event which requires an adjustment.


 


                                (e)           In
the event that, as a result of an adjustment made pursuant to this Section 8,
the holder of this Warrant shall become entitled to receive any shares of
capital stock of the Company other than shares of Common Stock, the number of
such other shares so receivable upon exercise of this Warrant shall be subject
thereafter to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Warrant Shares
contained in this Warrant.


 


                                (f)            Except as provided in subsection (g)
hereof, if and whenever the Company shall issue or sell, or is, in accordance
with any of subsections (f)(l) through (f)(7) hereof, deemed to have issued or
sold, any shares of Common Stock for a consideration per share less than the
Warrant Price in effect immediately prior to the time of such issue or sale,
then and in each such case (a “Trigger Issuance”) the then-existing
Warrant Price, shall be reduced, as of the close of business on the effective
date of the Trigger Issuance, to a price determined as follows:


 


	
   

  	
  Adjusted Warrant Price =

  	
  (A x B) + D

  	
   

  
	
   

  	
   

  	
  A+C

  	
   

  



 


                where


 


                “A” equals the number of shares
of Common Stock outstanding, including Additional Shares (as defined below)
deemed to be issued hereunder, immediately preceding such Trigger Issuance;


 


                “B” equals the Warrant Price in
effect immediately preceding such Trigger Issuance;


 


                “C” equals the number of
Additional Shares of Common Stock issued or deemed issued hereunder as a result
of the Trigger Issuance; and


 


                “D” equals the aggregate
consideration, if any, received or deemed to be received by the Company upon
such Trigger Issuance.


 


provided, however,
that in no event shall the Warrant Price after giving effect to such Trigger
Issuance be greater than the Warrant Price in effect prior to such Trigger
Issuance.


 


5

















 


 


                                For purposes of this subsection (f),
“Additional Shares of Common Stock” shall mean all shares of Common Stock
issued by the Company or deemed to be issued pursuant to this subsection (f),
other than Excluded Issuances (as defined in subsection (g) hereof).


 


                                For purposes of this subsection (f),
the following subsections (f)(l) to (f)(8) shall also be applicable (subject,
in each such case, to the provisions of subsection (g) hereof) and to each
other subsection contained in this subsection (f):


 


                                                                                (f)(1)  Issuance of Rights or Options.  In case at any time the Company shall in any
manner grant (directly and not by assumption in a merger or otherwise) any
warrants or other rights to subscribe for or to purchase, or any options for
the purchase of, Common Stock or any stock or security convertible into or
exchangeable for Common Stock (such warrants, rights or options being called
“Options” and such convertible or exchangeable stock or securities being called
“Convertible Securities”) whether or not such Options or the right to convert
or exchange any such Convertible Securities are immediately exercisable, and
the price per share for which Common Stock is issuable upon the exercise of
such Options or upon the conversion or exchange of such Convertible Securities
(determined by dividing (i) the sum (which sum shall constitute the applicable
consideration) of (x) the total amount, if any, received or receivable by the
Company as consideration for the granting of such Options, plus (y) the
aggregate amount of additional consideration payable to the Company upon the
exercise of all such Options, plus (z), in the case of such Options which
relate to Convertible Securities, the aggregate amount of additional
consideration, if any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the exercise of such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than the Warrant
Price in effect immediately prior to the time of the granting of such Options,
then the total number of shares of Common Stock issuable upon the exercise of
such Options or upon conversion or exchange of the total amount of such
Convertible Securities issuable upon the exercise of such Options shall be
deemed to have been issued for such price per share as of the date of granting
of such Options or the issuance of such Convertible Securities and thereafter
shall be deemed to be outstanding for purposes of adjusting the Warrant
Price.  Except as otherwise provided in
subsection 8(f)(3), no adjustment of the Warrant Price shall be made upon the
actual issue of such Common Stock or of such Convertible Securities upon
exercise of such Options or upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities.


 


                                                                                (f)(2)  Issuance of Convertible Securities.  In case the Company shall in any manner
issue (directly and not by assumption in a merger or otherwise) or sell any
Convertible Securities, whether or not the rights to exchange or convert any


 


 


6

















 


such Convertible
Securities are immediately exercisable, and the price per share for which
Common Stock is issuable upon such conversion or exchange (determined by
dividing (i) the sum (which sum shall constitute the applicable consideration)
of (x) the total amount received or receivable by the Company as consideration
for the issue or sale of such Convertible Securities, plus (y) the aggregate amount
of additional consideration, if any, payable to the Company upon the conversion
or exchange thereof, by (ii) the total number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities)
shall be less than the Warrant Price in effect immediately prior to the time of
such issue or sale, then the total maximum number of shares of Common Stock
issuable upon conversion or exchange of all such Convertible Securities shall
be deemed to have been issued for such price per share as of the date of the
issue or sale of such Convertible Securities and thereafter shall be deemed to
be outstanding for purposes of adjusting the Warrant Price, provided that (a)
except as otherwise provided in subsection 8(f)(3), no adjustment of the
Warrant Price shall be made upon the actual issuance of such Common Stock upon
conversion or exchange of such Convertible Securities and (b) no further
adjustment of the Warrant Price shall be made by reason of the issue or sale of
Convertible Securities upon exercise of any Options to purchase any such
Convertible Securities for which adjustments of the Warrant Price have been
made pursuant to the other provisions of subsection 8(f).


                                                                                (f)(3)
Change in Option Price or Conversion Rate; Termination of Options or
Convertible Securities.  Upon the
happening of any of the following events, namely, if the purchase price
provided for in any Option referred to in subsection 8(f)(l) hereof, the
additional consideration, if any, payable upon the conversion or exchange of
any Convertible Securities referred to in subsections 8(f)(l) or 8(f)(2), or
the rate at which Convertible Securities referred to in subsections 8(f)(l) or
8(f)(2) are convertible into or exchangeable for Common Stock shall change at
any time (including, but not limited to, changes under or by reason of
provisions designed to protect against dilution), the Warrant Price in effect
at the time of such event shall forthwith be readjusted to the Warrant Price
which would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may be, at the time
initially granted, issued or sold.  On
the termination of any Option for which any adjustment was made pursuant to
this subsection 8(f) or any right to convert or exchange Convertible Securities
for which any adjustment was made pursuant to this subsection 8(f) (including
without limitation upon the redemption or purchase for consideration of
Convertible Securities by the Company), the Warrant Price then in effect
hereunder shall forthwith be changed to the Warrant Price which would have been
in effect at the time of such termination had such Option or Convertible
Securities, to the extent outstanding immediately prior to such termination,
never been issued.


 


 


7

















 


                                                                                (f)(4)
Stock Dividends.  Other than pursuant to
a declaration of a dividend or other distribution by the Company for which an
adjustment has been made pursuant to Section 8Aa), 8(b) or 8(c) above, subject
to the provisions of this Section 8(f), in case the Company shall declare a
dividend or make any other distribution upon any stock of the Company (other
than the Common Stock) payable in Common Stock, Options or Convertible
Securities, then any Common Stock, Options or Convertible Securities, as the
case may be, issuable in payment of such dividend or distribution shall be
deemed to have been issued or sold without consideration.


 


                                                                          (f)(5)
Consideration for Stock.  In case any
shares of Common Stock, Options or Convertible Securities shall be issued or
sold for cash, the consideration received therefor shall be deemed to be the
gross amount received by the Company therefor, without deduction of any
expenses incurred or any underwriting commissions or concessions paid or
allowed by the Company in connection therewith.  In case any shares of Common Stock, Options or Convertible Securities
shall be issued or sold for a consideration other than cash, the amount of the
consideration other than cash received by the Company shall be deemed to be the
fair value of such consideration as determined in good faith by the Board of
Directors of the Company, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith.  In case any
Options shall be issued in connection with the issue and sale of other
securities of the Company, together comprising one integral transaction in
which no specific consideration is allocated to such Options by the parties
thereto, such Options shall be deemed to have been issued for such
consideration as determined in good faith by the Board of Directors of the
Company.  If Common Stock, Options or
Convertible Securities shall be issued or sold by the Company and, in
connection therewith, other Options or Convertible Securities (the “Additional
Rights”) are issued, then the consideration received or deemed to be received
by the Company shall be reduced by the fair market value of the Additional
Rights (as determined using the Black-Scholes option pricing model or another
method mutually agreed to by the Company and the Warrantholder).  The Board of Directors of the Company shall
respond promptly, in writing, to an inquiry by the Warrantholder as to the fair
market value of the Additional Rights. 
In the event that the Board of Directors of the Company and the
Warrantholder are unable to agree upon the fair market value of the Additional
Rights, the Company and the Warrantholder shall jointly select an appraiser,
who is experienced in such matters.  The
decision of such appraiser shall be final and conclusive, and the cost of such
appraiser shall be borne evenly by the Company and the Warrantholder.


 


                                                                                (f)(6)
Record Date.  In case the Company shall
take a record of the holders of its Common Stock for the purpose of entitling
them (i) to receive a dividend or other distribution payable in Common Stock,
Options or Convertible Securities or (ii) to subscribe for or purchase Common
Stock, Options or Convertible 


 


 


8

















 


Securities, then
such record date shall be deemed to be the date of the issue or sale of the
shares of Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date of the
granting of such right of subscription or purchase, as the case may be.


 


                                                                                (f)(7)
Treasury Shares.  The number of shares
of Common Stock outstanding at any given time shall not include shares owned or
held by or for the account of the Company or any of its wholly-owned
subsidiaries, and the disposition of any such shares (other than the
cancellation or retirement thereof) shall be considered an issue or sale of
Common Stock for the purpose of this subsection (f).


 


                                                                                (f)(8)
Notwithstanding any other provision in Section 8(f) to the contrary, if a
reduction in the Warrant Price pursuant to Section 8(f) (other than as set
forth in this clause (f)(8)) would require the Company to obtain stockholder
approval of the transactions giving rise to this Warrant pursuant to the rules
of Nasdaq, (i) the Warrant Price shall be reduced to the maximum extent that
would not require stockholder approval under such rules, and (ii) the Company
shall use its commercially reasonable efforts to obtain such stockholder
approval as soon as reasonably practicable, including by calling a special
meeting of stockholders to vote on such Warrant Price adjustment.


 


                                (g)           Anything herein to the
contrary notwithstanding, the Company shall not be required to make any
adjustment of the Warrant Price in the case of the issuance of (A) capital
stock, Options or Convertible Securities issued or issuable to directors, officers,
employees or consultants of the Company in connection with their service to the
Company pursuant to an equity compensation program or similar arrangement
approved by the Board of Directors or, as required by law, the stockholders of
the Company, (B) shares of Common Stock issued or issuable upon the conversion
or exercise of Options or Convertible Securities (including Series A Preferred
Stock of the Company (“Series A Preferred Stock”)) issued prior to the date
hereof, including shares issued or issuable pursuant to the operation of any
anti-dilution provisions applicable to such Options or Convertible Securities,
(C) shares of Common Stock issued or issuable by reason of a dividend, stock
split or other distribution on the Common Stock or Series A Preferred Stock,
(but only to the extent that such a dividend, split or distribution results in
an adjustment in the Warrant Price pursuant to the other provisions of this
Warrant), (D) capital stock, Options or Convertible Securities issued in
connection with any acquisition of all or substantially all of the assets,
stock or business or line of business of another entity, in accordance with
agreements or other arrangements approved by the Board of Directors of the
Company; (E) shares of Common Stock issued or issuable pursuant to the Purchase
Agreement; (F) this Warrant or any additional warrants to purchase Common Stock
issued pursuant to the Purchase Agreement and the shares of Common Stock issued
or issuable upon exercise of this Warrant or any such additional warrants; (G)
capital stock, Options or Convertible Securities for which an adjustment is
made pursuant to Sections 8(a), (b) or (c) of this Warrant, and (H) capital
stock, Options or Convertible Securities issued pursuant to any bona fide
equipment leasing 


 


 


9

















 


arrangement or debt financing from a bank or similar
financial institution approved by the Board of Directors (collectively, “Excluded Issuances”).


 


                Section 9.               Fractional
Interest.  The Company shall not be
required to issue fractions of Warrant Shares upon the exercise of this
Warrant.  If any fractional share of
Common Stock would, except for the provisions of the first sentence of this
Section 9, be deliverable upon such exercise, the Company, in lieu of
delivering such fractional share, shall pay to the exercising holder of this
Warrant an amount in cash equal to the Fair Market Value of such fractional
share of Common Stock on the date of exercise. 
As used in this Warrant, “Fair Market Value” of a share of Common Stock
as of a particular date (the “Valuation Date”) shall mean the following: (a) if
the Common Stock is then listed on a national stock exchange, the closing sale
price of one share of Common Stock on such exchange on the last trading day
prior to the Valuation Date; (b) if the Common Stock is then quoted on Nasdaq,
the closing sale price of one share of Common Stock on Nasdaq on the last
trading day prior to the Valuation Date or, if no such closing sale price is
available, the average of the high bid and the low sales price quoted on Nasdaq
on the last trading day prior to the Valuation Date; or (c) if the Common Stock
is not then listed on a national stock exchange or quoted on Nasdaq, the Fair
Market Value of one share of Common Stock as of the Valuation Date, shall be
determined in good faith by the Board of Directors of the Company.


 


                Section 10.             Extension
of Expiration Date.  If the Company
fails to cause any Registration Statement covering Registrable Securities
(unless otherwise defined herein, capitalized terms are as defined in the
Registration Rights Agreement relating to the Warrant Shares (the “Registration
Rights Agreement”)) to be declared effective prior to the applicable dates set
forth therein, or if any of the events specified in Section 2(c)(ii) of the
Registration Rights Agreement occurs, and the Blackout Period (whether alone,
or in combination with any other Blackout Period) continues for more than 60
days in any 12 month period, or for more than a total of 90 days, then the
Expiration Date of this Warrant shall be extended one day for each day beyond
the 60-day or 90-day limits, as the case may be, that the Blackout Period
continues.


 


                Section 11.             Benefits.  Nothing in this Warrant shall be construed
to give any person, firm or corporation (other than the Company and the
Warrantholder) any legal or equitable right, remedy or claim, it being agreed
that this Warrant shall be for the sole and exclusive benefit of the Company
and the Warrantholder.


 


                Section 12.             Notices
to Warrantholder.  Upon the
happening of any event requiring an adjustment of the Warrant Price, the
Company shall promptly give written notice thereof to the Warrantholder at the
address appearing in the records of the Company, stating the adjusted Warrant
Price and the adjusted number of Warrant Shares resulting from such event and
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based. 
Failure to give such notice to the Warrantholder or any defect therein
shall not affect the legality or validity of the subject adjustment.


 


                Section 13.             Identity
of Transfer Agent.  The Transfer
Agent for the Common Stock is Computer Share Trust Company.  Upon the appointment of any subsequent
transfer agent for the 


 


 


10

















 


Common Stock or other
shares of the Company’s capital stock issuable upon the exercise of the rights
of purchase represented by the Warrant, the Company will mail to the
Warrantholder a statement setting forth the name and address of such transfer
agent.


 


                Section 14.             Notices.  Unless otherwise provided, any notice
required or permitted under this Warrant shall be given in writing and shall be
deemed effectively given as hereinafter described (i) if given by personal
delivery, then such notice shall be deemed given upon such delivery, (ii) if
given by telex or telecopier, then such notice shall be deemed given upon
receipt of confirmation of complete transmittal, (iii) if given by mail, then
such notice shall be deemed given upon the earlier of (A) receipt of such
notice by the recipient or (B) three days after such notice is deposited in
first class mail, postage prepaid, and (iv) if given by an internationally
recognized overnight air courier, then such notice shall be deemed given one
day after delivery to such carrier.  All
notices shall be addressed as follows: if to the Warrantholder, at its address
as set forth in the Company’s books and records and, if to the Company, at the
address as follows, or at such other address as the Warrantholder or the
Company may designate by ten days’ advance written notice to the other:


 


                                                If to the Company:


 


First Virtual Communications, Inc.


3393 Octavius Drive


Santa Clara, California 95054


Attention:  Chief Financial Officer


Fax:  (408) 748-2241


 


                                                With a copy to:


 


Cooley Godward LLP


4401 Eastgate Mall


San Diego, California
92121-1909


Attention:  Julie M. Robinson, Esq.


Fax:  (858) 550-6420


 


                Section 15.             Registration
Rights.  The initial holder of this
Warrant is entitled to the benefit of certain registration rights with respect
to the shares of Common Stock issuable upon the exercise of this Warrant as
provided in the Registration Rights Agreement, and any subsequent holder hereof
may be entitled to such rights.


 


                Section 16.             
Successors.  All the covenants and
provisions hereof by or for the benefit of the Warrantholder shall bind and
inure to the benefit of its respective successors and assigns hereunder.


 


                Section 17.             Governing
Law.  This Warrant shall be governed
by, and construed in accordance with, the internal laws of the State of New
York, without reference to the choice of law provisions thereof.  The Company and, by accepting this Warrant,
the Warrantholder, each 


 


 


11

















 


irrevocably submits to
the exclusive jurisdiction of the courts of the State of New York located in
New York County and the United States District Court for the Southern District
of New York for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Warrant and the transactions contemplated
hereby.  Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the
giving of notices under this Warrant. 
The Company and, by accepting this Warrant, the Warrantholder, each
irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court.  The Company and, by accepting this Warrant,
the Warrantholder, each irrevocably waives any objection to the laying of venue
of any such suit, action or proceeding brought in such courts and irrevocably waives
any claim that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum.


 


                Section 18.             Call Provision.  Notwithstanding any other provision
contained herein to the contrary, in the event that the closing bid price of a
share of Common Stock as traded on the Nasdaq (or such other exchange or stock
market on which the Common Stock may then be listed or quoted) exceeds $2.50
(appropriately adjusted for any stock split, reverse stock split, stock
dividend or other reclassification or combination of the Common Stock occurring
after the date hereof) for twenty (20) consecutive trading sessions and all of
the shares of Common Stock issuable hereunder either (i) are registered
pursuant to an effective Registration Statement (as defined in the Registration
Rights Agreement) which is available for sales of such shares of Common Stock
or (ii) no longer constitute Registrable Securities (as defined in the
Registration Rights Agreement), the Company, upon thirty (30) days prior
written notice (the “Notice Period”) following such twenty (20) day period, to
the Warrantholder, may call this Warrant, in whole but not in part, at a
redemption price equal to $0.01 per share of Common Stock then purchasable
pursuant to this Warrant; provided, however, that the Company simultaneously
redeems all Company Warrants (as defined in Section 20 below) on the same
terms.  Notwithstanding any such notice
by the Company, the Warrantholder shall have the right to exercise this Warrant
prior to the end of the Notice Period.


 


                Section 19.             No Rights as Stockholder.  Prior to the exercise of this Warrant, the
Warrantholder shall not have or exercise any rights as a stockholder of the
Company by virtue of its ownership of this Warrant.


 


                Section 20.             Amendment; Waiver.  This Warrant is one of a series of Warrants
of like tenor issued by the Company pursuant to the Purchase Agreement, dated
as of March 29, 2002 (the “Purchase Agreement”), among the Company and the
original holders of Warrants, and initially covering an aggregate of 3,343,000
shares of Common Stock (collectively, the “Company Warrants”).  Any term of this Warrant may be amended or
waived (including the adjustment provisions included in Section 8 of this
Warrant) upon the written consent of the Company and the holders of Company
Warrants representing at least 50% of the number of shares of Common Stock then
subject to all outstanding Company Warrants (the “Majority Holders”); provided,
that (x) any such amendment or waiver must apply to all Company Warrants; and
(y) the number of Warrant Shares subject to this Warrant, the Warrant Price and



 


 


12

















 


the Expiration Date may not be amended, and the right to exercise this
Warrant may not be altered or waived, without the written consent of the
Warrantholder.


 


                Section 21.             Section Headings.  The section heading in this Warrant are for
the convenience of the Company and the Warrantholder and in no way alter,
modify, amend, limit or restrict the provisions hereof.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


13

















 


 


                IN WITNESS WHEREOF, the Company has caused this
Warrant to be duly executed, as of the 12th day of April, 2002.


 


	
   

  	
   

  	
  FIRST VIRTUAL
  COMMUNICATIONS, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Killko A. Caballero

  	
   

  
	
   

  	
   

  	
   

  	
  Killko A. Caballero

  	
   

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
  and President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


 


 


 


 


 


 


 


 


14

















 


APPENDIX A


FIRST VIRTUAL COMMUNICATIONS, INC.


WARRANT EXERCISE FORM


 


To: First Virtual
Communications, Inc.


 


                The undersigned hereby irrevocably elects to exercise
the right of purchase represented by the within Warrant (“Warrant”) for, and to
purchase thereunder by the payment of the Warrant Price and surrender of the
Warrant, _______________ shares of Common Stock (“Warrant Shares”) provided for
therein, and requests that certificates for the Warrant Shares be issued as
follows:


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Federal Tax ID or
  Social Security No.

  	
   

  



 


	
   

  	
  and delivered by

  	
  (certified mail to the
  above address, or 

  (electronically (provide DWAC

  	
   

  	
   

  
	
  Instructions:___________________),
  or

  	
   

  	
   

  	
   

  
	
   

  	
  (other (specify): 

  	
   

  	
   

  	
   

  
	
   

  	
  ).

  	
   

  	
   

  	
   

  
							



 


and, if the number of
Warrant Shares shall not be all the Warrant Shares purchasable upon exercise of
the Warrant, that a new Warrant for the balance of the Warrant Shares
purchasable upon exercise of this Warrant be registered in the name of the
undersigned Warrantholder or the undersigned’s Assignee as below indicated and
delivered to the address stated below.


 


 


	
  Dated: 

  	
   

  	
  ,

  	
   

  	
   

  



 


	
  Note:  The signature must correspond with the
  name of the registered holder as written on the first page of the Warrant in
  every particular, without alteration or enlargement or any change whatever,
  unless the Warrant has been assigned.

  	
   

  	
  Signature:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name (please print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Federal Identification
  or 

  Social Security No.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


15

















 


	
   

  	
   

  	
  Assignee:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


 


 


 


 


 


 


 


 


 


 


 


16

















 


SCHEDULE A


 


 


	
  Name of
  Purchaser

  	
   

  	
  Number of
  Warrants

  
	
  Special Situations Fund III, L.P.

  	
   

  	
  1,250,000

  
	
  Special Situations Cayman Fund, L.P.

  	
   

  	
  416,700

  
	
  Special Situations Technology Fund, L.P.

  	
   

  	
  416,650

  
	
  Stratford Partners, L.P.

  	
   

  	
  208,334

  
	
  Net One Systems Co., Ltd.

  	
   

  	
  833,334

  
	
  Ralph Ungermann

  	
   

  	
  79,094

  
	
  Norman E. Gaut

  	
   

  	
  104,167

  
	
  Shigeru Ota

  	
   

  	
  34,722

  



 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


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