**Exhibit4.3**

 

**THIS WARRANT AND THE UNDERLYINGSECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, ASAMENDED (THE “ACT”).  THEY MAY NOT BESOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVEREGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN OPINION OFCOUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.**

**FIRST VIRTUAL COMMUNICATIONS, INC.**

**WARRANT TO PURCHASE COMMON STOCK**

 

| **No.  CSW-8** |   | **May 7,  2001** |
|----------------|--------|------------------|

 

**VoidAfter  May 6, 2006**

** **

**THIS CERTIFIES THAT**, for value received, **PICTURETEL CORPORATION**, with its principal officeat 100 Minuteman Road, Andover, MA 01810, or assigns (the “Holder”), isentitled to subscribe for and purchase at the Exercise Price (defined below)from **FIRST VIRTUAL COMMUNICATIONS, INC.**, a Delawarecorporation, with its principal office at 3393 Octavius Drive, Santa Clara, CA95054 (the “Company”) up to Two Million Six Hundred Fourteen Thousand ThreeHundred Seventy-Seven (2,614,377) shares of the Common Stock of the Company(the “Common Stock”).

**1.             DEFINITIONS. **As used herein, the following terms shall have thefollowing respective meanings:

**(a)  **“Exercise Period” shall mean the period commencingwith the date hereof and ending five years from the date hereof, unless soonerterminated as provided below.

**(b)  **“Exercise Price” shall mean $ .91 per share, subjectto adjustment pursuant to Section 5 below.

**(c)  **“Exercise Shares” shall mean the shares of theCompany’s Common Stock issuable upon exercise of this Warrant.

**2.             EXERCISEOF WARRANT.**

**2.1          Restrictions on Exercise**.

The ExerciseShares shall be exercisable as follows:

 

**(a)  **one-third of the Exercise Shares shall be exercisableon the effective date of transfer of all intellectual property assets of theHolder’s PurePoint technology to the Company;****

**(b)  **one-third of the Exercise Shares shall be exercisableupon implementation by Holder of marketing initiatives agreed upon by the Holder and the Company forthe sale by Holder of the Company’s products; and

**(c)  **up to one-third of the Exercise Shares shall beexercisable upon the Company recognizing $15 million in net revenue from thesale of the Company’s products to Holder, with 580,973 shares being exercisableupon recognizing $10 million in net revenues, and the remaining 290,486 sharesbeing exercisable on a prorata basis for net revenue recognized above $10million up to $15 million.

Notwithstandingthe foregoing, (i) exercise of this Warrant is subject to approval by theCompany’s stockholders of an amendment to the Company’s Certificate ofIncorporation to increase the authorized Common Stock thereunder to anaggregate of 100,000,000 shares (the “Certificate Amendment”) and (ii) in theevent the merger contemplated by that certain Agreement and Plan of Merger andReorganization among First Virtual Communications, Inc., FVC Acquisition Corp.,and CUseeMe Networks, Inc., dated as of March 22, 2001, is not consummated onor before August 1, 2001, this Warrant shall be null and void.

 

**2.2          Mechanics of Exercise. **Subject to the limitations on exercise set forth inSection 2.1 above, the rights represented by this Warrant may be exercised inwhole or in part at any time during the Exercise Period, by delivery of thefollowing to the Company at its address set forth above (or at such otheraddress as it may designate by notice in writing to the Holder):

**(a)  **An executed Notice of Exercise in the form attachedhereto;

**(b)  **Payment of the Exercise Price either (i) in cash or bycheck, or (ii) by cancellation of indebtedness; and

**(c)  **This Warrant.

Upon the exercise of therights represented by this Warrant, a certificate or certificates for theExercise Shares so purchased, registered in the name of the Holder or personsaffiliated with the Holder, if the Holder so designates, shall be issued anddelivered to the Holder within a reasonable time after the rights representedby this Warrant shall have been so exercised.

The person in whose nameany certificate or certificates for Exercise Shares are to be issued uponexercise of this Warrant shall be deemed to have become the holder of record ofsuch shares on the date on which this Warrant was surrendered and payment ofthe Exercise Price was made, irrespective of the date of delivery of suchcertificate or certificates, except that, if the date of such surrender andpayment is a date when the stock transfer books of the Company are closed, suchperson shall be deemed to have become the holder of such shares at the close ofbusiness on the next succeeding date on which the stock transfer books areopen.

**2.3          Net Exercise**. Notwithstanding any provisions herein to the contrary, if the fairmarket value of one share of the Company’s Common Stock is greater than theExercise Price (at the date of calculation as set forth below), in lieu ofexercising this Warrant by payment of cash, the Holder may elect to receiveshares equal to the value (as determined below) of this Warrant (or the portionthereof being canceled) by surrender of this Warrant at the principal office ofthe Company together with the properly endorsed Notice of Exercise in whichevent the Company shall issue to the Holder a number of shares of Common Stockcomputed using the following formula:

 

X = Y (A-B)

A

Where    X =          thenumber of shares of Common Stock to be issued to the Holder

Y =          the number of shares of Common Stockpurchasable under the Warrant or, if only a portion of the Warrant is beingexercised, the portion of the Warrant being canceled (at the date of suchcalculation)

A =         the fair market value of one share ofthe Company’s Common Stock (at the date of such calculation)

B =          Exercise Price (as adjusted to thedate of such calculation)

For purposes of the abovecalculation, the fair market value of one share of Common Stock shall be equalto the fair market value of one share of Common Stock of the Company as quotedon the Nasdaq National Market on the date of such calculation.

**3.             COVENANTSOF THE COMPANY.**

**3.1          Covenants as to Exercise Shares.** The Company covenants and agrees that all Exercise Shares that may beissued upon the exercise of the rights represented by this Warrant will, uponissuance, be validly issued and outstanding, fully paid and nonassessable, andfree from all taxes, liens and charges with respect to the issuance thereof.  Subject to approval of the CertificateAmendment by the Company’s stockholders as described in Section 2.1 above,the  Company further covenants andagrees that the Company will at all times subsequent to stockholder approval ofthe Certificate Amendment during the Exercise Period, have authorized andreserved, free from preemptive rights, a sufficient number of shares of itsCommon Stock to provide for the exercise of the rights represented by thisWarrant.  If at any time during theExercise Period the number of authorized but unissued shares of Common Stockshall not be sufficient to permit exercise of this Warrant, the Company willtake such corporate action as may, in the opinion of its counsel, be necessaryto increase its authorized but unissued shares of Common Stock to such numberof shares as shall be sufficient for such purposes.

**3.2          No Impairment**. Except and to the extent as waived or consented to by the Holder, theCompany will not, by amendment of its Certificate of Incorporation or throughany reorganization, transfer of assets, consolidation, merger, dissolution,issue or sale of securities or any other voluntary action, avoid or seek toavoid the observance or performance of any of the terms to be observed orperformed hereunder by the Company, but will at all times in good faith assistin the carrying out of all the provisions of this Warrant and in the taking ofall such action as may be necessary or appropriate in order to protect theexercise rights of the Holder against impairment.

**3.3          Notices of Record Date.** In the event of any taking by the Company of a record of the holders ofany class of securities for the purpose of determining the holders thereof whoare entitled to receive any dividend (other than a cash dividend which is thesame as cash dividends paid in previous quarters) or other distribution, theCompany shall mail to the Holder, at least ten (10) days prior to the datespecified herein, a notice specifying the date on which any such record is tobe taken for the purpose of such dividend or distribution.

**4.             REPRESENTATIONS OF HOLDER.**

**4.1          Acquisition of Warrant for PersonalAccount.**  The Holder represents and warrants that itis acquiring the Warrant solely for its account for investment and not with aview to or for sale or distribution of said Warrant or any part thereof.  The Holder also represents that the entirelegal and beneficial interests of the Warrant and Exercise Shares the Holder isacquiring is being acquired for, and will be held for, its account only.

**4.2          Securities Are Not Registered.**

**(a)  **        TheHolder understands that the Warrant and the Exercise Shares have not beenregistered under the Securities Act of 1933, as amended (the “Act”).  The Holder realizes that the basis for theexemption may not be present if, notwithstanding its representations, theHolder has a present intention of acquiring the securities for a fixed ordeterminable period in the future, selling (in connection with a distributionor otherwise), granting any participation in, or otherwise distributing thesecurities.  The Holder has no suchpresent intention.

**(b)  **        TheHolder recognizes that the Warrant and the Exercise Shares must be heldindefinitely unless they are subsequently registered under the Act or anexemption from such registration is available. The Holder recognizes that the Company has no obligation to register theWarrant or the Exercise Shares of the Company, or to comply with any exemptionfrom such registration.

**(c)  **        TheHolder is aware that neither the Warrant nor the Exercise Shares may be soldpursuant to Rule 144 adopted under the Act unless certain conditions are met,including, among other things, the existence of a public market for the shares,the availability of certain current public information about the Company, theresale following the required holding period under Rule 144 and the number ofshares being sold during any three month period not exceeding specifiedlimitations.  Holder is aware that theconditions for resale set forth in Rule 144 have not been satisfied and thatthe Company presently has no plans to satisfy these conditions in theforeseeable future.

**4.3          Disposition of Warrant and ExerciseShares.**

**(a)  **        TheHolder further agrees not to make any disposition of all or any part of theWarrant or Exercise Shares in any event unless and until:

**(i)           **The Company shall have received a letter secured bythe Holder from the Securities and Exchange Commission stating that no actionwill be recommended to the Commission with respect to the proposed disposition;or****

**(ii)          **There is then in effect a registration statement underthe Act covering such proposed disposition and such disposition is made inaccordance with said registration statement; or

**(iii)        **The Holder shall have notified the Company of theproposed disposition and shall have furnished the Company with a detailedstatement of the circumstances surrounding the proposed disposition, and ifreasonably requested by the Company, the Holder shall have furnished theCompany with an opinion of counsel, reasonably satisfactory to the Company, forthe Holder to the effect that such disposition will not require registration ofsuch Warrant or Exercise Shares under the Act or any applicable statesecurities laws.

**(b)  **        TheHolder understands and agrees that all certificates evidencing the shares to beissued to the Holder may bear the following legend:

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THESECURITIES ACT OF 1933, AS AMENDED (THE “ACT”).  THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATEDIN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIESUNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCHREGISTRATION IS NOT REQUIRED.

**5.             ADJUSTMENTOF EXERCISE PRICE. **In the event of changes in theoutstanding Common Stock of the Company by reason of stock dividends,split-ups, recapitalizations, reclassifications, combinations or exchanges ofshares, separations, reorganizations, liquidations, or the like, the number andclass of shares available under the Warrant in the aggregate and the ExercisePrice shall be correspondingly adjusted to give the Holder of the Warrant, onexercise for the same aggregate Exercise Price, the total number, class, andkind of shares as the Holder would have owned had the Warrant been exercisedprior to the event and had the Holder continued to hold such shares until afterthe event requiring adjustment; provided, however, that such adjustment shallnot be made with respect to, and this Warrant shall terminate if not exercisedprior to, the events set forth in Section 7 below.  The form of this Warrant need not be changedbecause of any adjustment in the number of Exercise Shares subject to thisWarrant.

**6.             FRACTIONALSHARES. **No fractional shares shall be issued uponthe exercise of this Warrant as a consequence of any adjustment pursuanthereto.  All Exercise Shares (includingfractions) issuable upon exercise of this Warrant may be aggregated forpurposes of determining whether the exercise would result in the issuance ofany fractional share.  If, afteraggregation, the exercise would result in the issuance of a fractional share,the Company shall, in lieu of issuance of any fractional share, pay the Holderotherwise entitled to such fraction a sum in cash equal to the productresulting from multiplying the then current fair market value of an ExerciseShare by such fraction.

**7.             EARLYTERMINATION. **In the event of, at any time during theExercise Period, any capital reorganization, or any reclassification of thecapital stock of the Company (other than a change in par value or from parvalue to no par value or no par value to par value or as a result of a stockdividend or subdivision, split-up or combination of shares), or theconsolidation or merger of the Company with or into another corporation (otherthan a merger solely to effect a reincorporation of the Company into anotherstate), or the sale or other disposition of all or substantially all theproperties and assets of the Company in its entirety to any other person, theCompany shall provide to the Holder twenty (20) days advance written notice ofsuch public offering, reorganization, reclassification, consolidation, mergeror sale or other disposition of the Company’s assets, and this Warrant shallterminate unless exercised prior to the date such public offering is closed orthe occurrence of such reorganization, reclassification, consolidation, mergeror sale or other disposition of the Company’s assets.****

**8.             MARKET STAND-OFF AGREEMENT. **Holder shall not sell, dispose of, transfer, make anyshort sale of, grant any option for the purchase of, or enter into any hedgingor similar transaction with the same economic effect as a sale, any CommonStock (or other securities) of the Company held by Holder, for a period of timespecified by the managing underwriter(s) (not to exceed one hundred eighty (180days) following the effective date of a registration statement of the Companyfiled under the Securities Act of 1933. Holder agrees to execute and deliver such other agreements as may bereasonably requested by the Company and/or the managing underwriter(s) whichare consistent with the foregoing or which are necessary to give further effectthereto.  In order to enforce theforegoing covenant, the Company may impose stop-transfer instructions withrespect to such Common Stock (or other securities) until the end of suchperiod.  The underwriters of theCompany’s stock are intended third party beneficiaries of this Section 8 andshall have the right, power and authority to enforce the provisions hereof asthough they were a party hereto.

**9.             NOSTOCKHOLDER RIGHTS. **This Warrant in and of itself shall notentitle the Holder to any voting rights or other rights as a stockholder of theCompany.

**10.          TRANSFEROF WARRANT. **Subject to applicable laws and therestriction on transfer set forth on the first page of this Warrant, thisWarrant and all rights hereunder are transferable, by the Holder in person orby duly authorized attorney, upon delivery of this Warrant and the form ofassignment attached hereto, to any affiliate of Holder.  The transferee shall sign an investmentletter in form and substance satisfactory to the Company.

**11.          LOST,STOLEN, MUTILATED OR DESTROYED WARRANT. **Ifthis Warrant is lost, stolen, mutilated or destroyed, the Company may, on suchterms as to indemnity or otherwise as it may reasonably impose (which shall, inthe case of a mutilated Warrant, include the surrender thereof), issue a newWarrant of like denomination and tenor as the Warrant so lost, stolen,mutilated or destroyed.  Any such newWarrant shall constitute an original contractual obligation of the Company,whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shallbe at any time enforceable by anyone.

**12.          NOTICES, ETC. **All notices required or permitted hereunder shall be in writing andshall be deemed effectively given: (a) upon personal delivery to the partyto be notified, (b) when sent by confirmed telex or facsimile if sentduring normal business hours of the recipient, if not, then on the nextbusiness day, (c) five (5) days after having been sent by registered orcertified mail, return receipt requested, postage prepaid, or (d) one (1)day after deposit with a nationally recognized overnight courier, specifyingnext day delivery, with written verification of receipt.  All communications shall be sent to theCompany and to Holder at their respective addresses listed on the first page ofthis Warrant or at such other address as the Company or Holder may designate byten (10) days advance written notice to the other parties hereto.****

**13.          ACCEPTANCE. **Receipt of this Warrant by the Holder shall constituteacceptance of and agreement to all of the terms and conditions containedherein.

**14.          GOVERNINGLAW. **This Warrant and all rights, obligationsand liabilities hereunder shall be governed by the laws of the State ofCalifornia.

** **

**IN WITNESSWHEREOF**, theCompany has caused this Warrant to be executed by its duly authorized officeras of May 7, 2001.
|   | **FIRST  VIRTUAL COMMUNICATIONS, INC.** |
|--------|-----------------------------------------|
|   |                                    |
|   | By:                                     |   |
|   |                                    |
|   | Name:                                   |   |
|   |                                    |
|   | Title:                                  |   |
|        |                                         |  |  |  |

 

**NOTICEOF EXERCISE**

**TO:  FIRSTVIRTUAL COMMUNICATIONS, INC.**

**(1)**           o            Theundersigned hereby elects to purchase ________ shares of the Common Stock of **FIRST VIRTUAL COMMUNICATIONS, INC.** (the “Company”)pursuant to the terms of the attached Warrant, and tenders herewith payment ofthe exercise price in full, together with all applicable transfer taxes, ifany.

                o            Theundersigned hereby elects to purchase ________ shares of the Common Stock of **FIRST VIRTUAL COMMUNICATIONS, INC.** (the “Company”)pursuant to the terms of the net exercise provisions set forth inSection 2.1 of the attached Warrant, and shall tender payment of allapplicable transfer taxes, if any.

**(2)**           Please issue acertificate or certificates representing said shares of Common Stock in thename of the undersigned or in such other name as is specified below:

________________________

(Name)

________________________

________________________

(Address)

**(3)**           The undersignedrepresents that (i) the aforesaid shares of Common Stock are being acquired forthe account of the undersigned for investment and not with a view to, or forresale in connection with, the distribution thereof and that the undersignedhas no present intention of distributing or reselling such shares; (ii) theundersigned is aware of the Company’s business affairs and financial conditionand has acquired sufficient information about the Company to reach an informedand knowledgeable decision regarding its investment in the Company; (iii) theundersigned is experienced in making investments of this type and has suchknowledge and background in financial and business matters that the undersignedis capable of evaluating the merits and risks of this investment and protectingthe undersigned’s own interests; (iv) the undersigned understands that the sharesof Common Stock issuable upon exercise of this Warrant have not been registeredunder the Securities Act of 1933, as amended (the “Securities Act”), by reasonof a specific exemption from the registration provisions of the Securities Act,which exemption depends upon, among other things, the bona fide nature of theinvestment intent as expressed herein, and, because such securities have notbeen registered under the Securities Act, they must be held indefinitely unlesssubsequently registered under the Securities Act or an exemption from suchregistration is available; (v) the undersigned is aware that the aforesaidshares of Common Stock may not be sold pursuant to Rule 144 adopted under theSecurities Act unless certain conditions are met and until the undersigned hasheld the shares for the number of years prescribed by Rule 144, that among theconditions for use of the Rule is the availability of current information tothe public about the Company and the Company has not made such information availableand has no present plans to do so; and (vi) the undersigned agrees not to makeany disposition of all or any part of the aforesaid shares of Common Stockunless and until there is then in effect a registration statement under theSecurities Act covering such proposed disposition and such disposition is madein accordance with said registration statement, or the undersigned has providedthe Company with an opinion of counsel satisfactory to the Company, statingthat such registration is not required.
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**ASSIGNMENT FORM**

(To assign the foregoing Warrant, execute this formand supply required information.  Do notuse this form to purchase shares.)

**FOR VALUE RECEIVED**, the foregoing Warrant and all rightsevidenced thereby are hereby assigned to
| Name:         |           |
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|          | (Please Print) |
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| Address:      |           |
|          | (Please Print) |
| Dated:   |           |   , 20 |   |   |
|          |
| Holder’s |           |
| Signature:    |           |  
 

 

 
Holder’s

 

 
Address:

 

 
** **

** **

**NOTE**:  The signature to thisAssignment Form must correspond with the name as it appears on the face of theWarrant, without alteration or enlargement or any change whatever.  Officers of corporations and those acting ina fiduciary or other representative capacity should file proper evidence ofauthority to assign the foregoing Warrant.

 

 

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