EXHIBIT 2.2
EXHIBIT D
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS (I)
REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS, (II) SOLD OR OFFERED PURSUANT TO RULE 144 PROMULGATED BY
THE SECURITIES AND EXCHANGE COMMISSION UNDER SAID ACT (OR ANY
SIMILAR RULE THEN IN FORCE) OR (III) THE ISSUER OF THIS WARRANT
RECEIVES AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM SUCH
REGISTRATION IS OTHERWISE AVAILABLE.
TELIGENT ACQUISITION CORP.
STOCK PURCHASE WARRANT
Date of Issuance: ___________ Certificate No. W-______
FOR VALUE RECEIVED, Teligent Acquisition Corp., a Delaware
corporation (the "Company"), hereby grants to _______________________ or its
registered assigns (the "Registered Holder") the right to purchase from the
Company 750,000 shares of Warrant Stock at a price per share of $_______(1) (as
adjusted from time to time hereunder, the "Exercise Price"). This Warrant is one
of three warrants (collectively, the "Warrants") issued pursuant to the terms of
the Second Amended and Restated Asset Purchase Agreement, dated as of October
18, 2001 (the "Purchase Agreement"), among the Company, Teligent, Inc., a
Delaware corporation, and the other signatories thereto. Certain capitalized
terms used herein are defined in Section 3 hereof. The amount and kind of
securities obtainable pursuant to the rights granted hereunder and the purchase
price for such securities are subject to adjustment pursuant to the provisions
contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
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(1)Three 6-year warrants to purchase an aggregate of 2,250,000 shares of the
Company's common stock will be issued as follows: (i) a warrant to purchase
750,000 shares at $14 per share; (ii) a warrant to purchase 750,000 shares at
$15 per share; and (iii) a warrant to purchase 750,000 shares at $16 per share.
1A. Exercise Period(i) . The Registered Holder may exercise, in
whole or in part, the purchase rights represented by this Warrant at any time
and from time to time after the Date of Issuance to and including the sixth
anniversary of the Date of Issuance (the "Exercise Period").
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised when the
Company has received all of the following items (the "Exercise Time"):
(a) a completed Exercise Agreement, as described in Section 1C
below, executed by the Person exercising all or part of the purchase
rights represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if this Warrant is not registered in the name of the
Purchaser, an Assignment or Assignments in the form set forth in Exhibit
II hereto evidencing the assignment of this Warrant to the Purchaser, in
which case the Registered Holder shall have complied with the provisions
set forth in Section 5 hereof; and
(d) either (1) a certified or official bank check payable to the
Company in an amount equal to the product of the Exercise Price
multiplied by the number of shares of Warrant Stock being purchased upon
such exercise (the "Aggregate Exercise Price"), (2) the surrender to the
Company of debt or equity securities of the Company or any of its
wholly-owned Subsidiaries having a Market Price equal to the Aggregate
Exercise Price of the Warrant Stock being purchased upon such exercise
(provided that for purposes of this subparagraph, the Market Price of
any note or other debt security or any preferred stock shall be deemed
to be equal to the aggregate outstanding principal amount or liquidation
value thereof plus all accrued and unpaid interest thereon or accrued or
declared and unpaid dividends thereon) or (3) a written notice to the
Company (which may be the Exercise Agreement) that the Purchaser is
exercising the Warrant (or a portion thereof) by authorizing the Company
to withhold from issuance a number of shares of Warrant Stock issuable
upon such exercise of the Warrant which when multiplied by the Market
Price of the Warrant Stock is equal to the Aggregate Exercise Price (and
such withheld shares shall no longer be issuable under this Warrant).
(ii) Certificates for shares of Warrant Stock purchased upon
exercise of this Warrant shall be delivered by the Company to the Purchaser
within ten business days after the date of the Exercise Time. Unless this
Warrant has expired or all of the purchase rights represented hereby have been
exercised, the Company shall prepare a new Warrant, substantially identical
hereto, representing the rights formerly represented by this Warrant which have
not expired or been exercised and shall, within such ten business-day period,
deliver such new Warrant to the Person designated for delivery in the Exercise
Agreement.
(iii) The Warrant Stock issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the Exercise
Time, and the Purchaser shall be
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deemed for all purposes to have become the record holder of such Warrant Stock
at the Exercise Time.
(iv) The issuance of certificates for shares of Warrant Stock
upon exercise of this Warrant shall be made without charge to the Registered
Holder or the Purchaser for any issuance tax in respect thereof or other cost
incurred by the Company in connection with such exercise and the related
issuance of shares of Warrant Stock. The Company will not be required, however,
to pay any tax imposed in connection with any transfer involved in the issue of
shares of Warrant Stock in a name other than that of the Registered Holder. In
such case, the Company will not be required to issue any certificate for shares
of Warrant Stock until the person or persons requesting the same shall have paid
to the Company the amount of any such tax or shall have established to the
Company's reasonable satisfaction that the tax has been paid or that no tax is
due. Each share of Warrant Stock issuable upon exercise of this Warrant shall,
upon payment of the Exercise Price therefor, be fully paid and nonassessable and
free from all liens and charges with respect to the issuance thereof except
those liens or charges that may arise by any action or inaction of the
Purchaser.
(v) The Company shall not close its books against the transfer
of this Warrant or of any share of Warrant Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant. The Company shall from time to time take all such action as may
be necessary to assure that the par value per share of the unissued Warrant
Stock acquirable upon exercise of this Warrant is at all times equal to or less
than the Exercise Price then in effect.
(vi) The Company shall assist and cooperate with any Registered
Holder or Purchaser required to make any governmental filings or obtain any
governmental approvals prior to or in connection with any exercise of this
Warrant (including, without limitation, making any filings required to be made
by the Company); provided, however, that the Company shall not be required to
(a) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 1B(vi), (b) subject itself
to taxation in any such jurisdiction or (c) submit to the general service of
process in any such jurisdiction.
(vii) Notwithstanding any other provision hereof, if an exercise
of any portion of this Warrant is to be made in connection with a registered
public offering or a sale of the Company, the exercise of any portion of this
Warrant may, at the election of the holder hereof, be conditioned upon the
consummation of the public offering or the sale of the Company, in which case
such exercise shall not be deemed to be effective until the consummation of such
transaction.
(viii) The Company shall at all times reserve and keep available
out of its authorized but unissued shares of Warrant Stock solely for the
purpose of issuance upon the exercise of the Warrants, such number of shares of
Warrant Stock issuable upon the exercise of all outstanding Warrants. All shares
of Warrant Stock which are so issuable shall, when issued, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
except those liens or charges that may arise by any action or inaction of the
Purchaser. The Company shall take all such actions as may be necessary to assure
that all such shares of Warrant Stock may be so issued without violation of any
applicable law or governmental regulation or
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any requirements of any domestic securities exchange upon which shares of
Warrant Stock may be listed (except for official notice of issuance which shall
be immediately delivered by the Company upon each such issuance); and the
Company shall take all actions as may be necessary to cause the listing of all
shares of Warrant Stock issuable upon exercise of the Warrants on any domestic
securities exchange upon which the Common Stock is listed (or the quotation on
the Nasdaq National Market, as the case may be) and maintain such listing or
quotation of such shares after issuance to the extent that the listing or
quotation of the Common Stock is maintained. The Company shall not take any
action which would cause the number of authorized but unissued shares of Warrant
Stock to be less than the number of such shares required to be reserved
hereunder for issuance upon exercise of the Warrants.
1C. Exercise Agreement. Upon any exercise of this Warrant, the
Exercise Agreement shall be substantially in the form set forth in Exhibit I
hereto, except that if the shares of Warrant Stock are not to be issued in the
name of the Person in whose name this Warrant is registered, the Exercise
Agreement shall also state the name of the Person to whom the certificates for
the shares of Warrant Stock are to be issued, and if the number of shares of
Warrant Stock to be issued does not include all the shares of Warrant Stock
purchasable hereunder, it shall also state the name of the Person to whom a new
Warrant for the unexercised portion of the rights hereunder is to be delivered.
Such Exercise Agreement shall be dated the actual date of execution thereof.
1D. No Fractional Shares to be Issued. If more than one Warrant
shall be surrendered for exercise at one time by the same Purchaser, the number
of full shares of Warrant Stock which shall be issuable upon exercise thereof
shall be computed on the basis of the aggregate number of Warrants so
surrendered (and giving effect to the election on any cashless exercise). Every
Warrant holder, by accepting this Warrant, expressly waives its right to receive
any fraction of a share of Warrant Stock or a share certificate representing a
fraction of a share of Warrant Stock. In lieu thereof, the Company will purchase
such fractional interest for an amount in cash equal to the Market Price of such
fractional interest.
1E. Legend. Each certificate representing Warrant Stock issued
upon exercise of this Warrant shall contain a legend substantially in the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS (I)
REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS, (II) SOLD OR OFFERED PURSUANT TO RULE 144 PROMULGATED BY
THE SECURITIES AND EXCHANGE COMMISSION UNDER THE ACT (OR ANY
SIMILAR RULE THEN IN FORCE) OR (III) THE ISSUER OF THIS WARRANT
RECEIVES AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM SUCH
REGISTRATION IS OTHERWISE AVAILABLE.
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Section 2. Adjustment of Exercise Price and Number of Shares. In
order to prevent dilution of the rights granted under this Warrant, the Exercise
Price shall be subject to adjustment from time to time as provided in this
Section 2, and the number of shares of Warrant Stock obtainable upon exercise of
this Warrant shall be subject to adjustment from time to time as provided in
this Section 2.
2A. Subdivision or Combination of Common Stock. If the Company
at any time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Warrant
Stock obtainable upon exercise of this Warrant shall be proportionately
increased. If the Company at any time combines (by reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of shares of
Warrant Stock obtainable upon exercise of this Warrant shall be proportionately
decreased.
2B. Reorganization, Reclassification, Consolidation, Merger or
Sale. Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets or other
transaction, which in each case is effected in such a way that the holders of
Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities, cash or other assets with respect to or in
exchange for Common Stock is referred to herein as "Organic Change." Prior to
the consummation of any Organic Change, the Company shall make appropriate
provision to insure that each of the Registered Holders of the Warrants shall
thereafter have the right to acquire and receive, in lieu of or addition to (as
the case may be) the shares of Warrant Stock immediately theretofore acquirable
and receivable upon the exercise of such holder's Warrant, such shares of stock,
securities, cash or other assets as may be issued or payable with respect to or
in exchange for the number of shares of Warrant Stock immediately theretofore
acquirable and receivable upon exercise of such holder's Warrant had such
Organic Change not taken place. In any such case, the Company shall make
appropriate provision with respect to such holders' rights and interests to
insure that the provisions of this Section 2 shall thereafter be applicable to
the Warrants. The Company shall not effect any such consolidation, merger or
sale, unless prior to the consummation thereof, the successor entity (if other
than the Company) resulting from consolidation or merger or the entity
purchasing such assets assumes by written instrument the obligation to deliver
to each such holder such shares of stock, securities, cash or other assets as,
in accordance with the foregoing provisions, such holder may be entitled to
acquire. Notwithstanding any other provision contained herein, the Company may,
upon notice and subject to the provisions of Section 2E hereof, terminate this
Warrant upon the consummation of a merger of the Company into another Person in
which the sole consideration received by the holders of Common Stock in respect
of their Common Stock is cash .
2C. Stock Dividends. If the Company shall declare a dividend or
any other distribution upon any capital stock which is payable in shares of
Warrant Stock or securities convertible into or exchangeable or exercisable for
shares of Warrant Stock, the Exercise Price shall be reduced to the quotient
obtained by dividing (i) the number of shares of Warrant Stock outstanding
immediately prior to such declaration multiplied by the then effective Exercise
Price
5
by (ii) the total number of shares of Warrant Stock outstanding immediately
after such declaration. Upon such reduction of the Exercise Price, the number of
shares of Warrant Stock acquirable upon exercise of this Warrant shall be
adjusted to the number of shares determined by multiplying the Exercise Price in
effect immediately prior to such reduction by the number of shares of Warrant
Stock acquirable upon exercise of this Warrant immediately prior to such
reduction and dividing the product thereof by the Exercise Price resulting from
such reduction. All shares of Warrant Stock and all securities convertible into
or exchangeable or exercisable for shares of Warrant Stock issuable in payment
of any dividend or other distribution upon the capital stock of the Company
shall be deemed to have been issued or sold without consideration.
2D. Certain Events. If any event occurs as to which the
foregoing provisions of this Section 2 are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board of
Directors of the Company (the "Board"), fairly and adequately protect the
purchase rights represented by the Warrants in accordance with the essential
intent and principles of such provisions, then the Board shall make such
adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board, to protect such purchase rights as aforesaid.
2E. Notices.
(i) Immediately upon any adjustment of the Exercise Price, the
Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
(ii) The Company shall give written notice to the Registered
Holder at least 20 days prior to the date on which the Company closes its books
or takes a record (A) with respect to any dividend or distribution upon the
Common Stock, (B) with respect to any pro rata subscription offer to holders of
Common Stock or (C) for determining rights to vote with respect to any Organic
Change, dissolution or liquidation.
(iii) The Company shall also give written notice to the
Registered Holders at least 20 days prior to the date on which any Organic
Change, dissolution or liquidation shall take place.
Section 3. Definitions. The following terms have meanings set
forth below:
"Common Stock" means, collectively, the Company's common stock,
par value $0.01 per share, and any capital stock of any class of the Company
hereafter authorized which is not limited to a fixed sum or percentage of par or
stated value in respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon any liquidation, dissolution or
winding up of the Company.
"Convertible Securities" means any stock or securities (directly
or indirectly) convertible into or exchangeable or exercisable for Common Stock.
"Market Price" means as to any security the average of the
closing prices of such security's sales on all domestic securities exchanges on
which such security may at the time be listed, or, if there have been no sales
on any such exchange on any day, the average of the
6
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
New York time, on such day, or, if on any day such security is not quoted in the
NASDAQ System, the average of the highest bid and lowest asked prices on such
day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization, in each
such case averaged over a period of 21 days consisting of the day as of which
"Market Price" is being determined and the 20 consecutive business days prior to
such day; provided that if such security is listed on any domestic securities
exchange the term "business days" as used in this sentence means business days
on which such exchange is open for trading. If at any time such security is not
listed on any domestic securities exchange or quoted in the NASDAQ System or the
domestic over-the-counter market, the "Market Price" shall be the fair value
thereof determined in good faith by the Board and set forth in a certificate
thereof.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a government or any department or agency thereof.
"Warrant Stock" means the Common Stock; provided that if there
is a change such that the securities issuable upon exercise of the Warrants are
issued by an entity other than the Company or there is a change in the type or
class of securities so issuable, then the term "Warrant Stock" shall mean one
share of the security issuable upon exercise of the Warrants if such security is
issuable in shares, or shall mean the smallest unit in which such security is
issuable if such security is not issuable in shares.
Section 4. No Voting Rights; Limitations of Liability. This
Warrant shall not entitle the holder hereof to any voting rights or other rights
as a stockholder of the Company. No provision hereof, in the absence of
affirmative action by the Registered Holder to purchase Warrant Stock, and no
enumeration herein of the rights or privileges of the Registered Holder shall
give rise to any liability of such holder for the Exercise Price of Warrant
Stock acquirable by exercise hereof or as a stockholder of the Company.
Section 5. Warrant Transferable. This Warrant and all rights
hereunder are transferable, in whole or in part, only in compliance with the
Securities Act of 1933, as amended, and without charge (except as set forth in
Section 1B(iv)) to the Registered Holder, upon surrender of this Warrant with a
properly executed Assignment (in the form of Exhibit II hereto) at the principal
office of the Company. Every Warrant holder, by accepting this Warrant, consents
and agrees with the Company and with every subsequent holder of this Warrant
that until due presentation for the registration of transfer of this Warrant on
the register maintained by the Company, the Company may deem and treat the
person in whose name this Warrant is registered as the absolute and lawful owner
for all purposes whatsoever and the Company shall not be affected by any notice
to the contrary. Notwithstanding anything herein to the contrary, nothing herein
shall limit or otherwise restrict in any manner any transfer of this Warrant or
any of the other Warrants if such transfer is effectuated under a plan of
reorganization of the Sellers (as defined in the Purchase Agreement) or an order
of the Bankruptcy Court (as defined in the Purchase Agreement) so long as such
transfer is in compliance with the Securities Act of 1933, as amended.
7
Section 6. Warrant Exchangeable for Different Denominations.
This Warrant is exchangeable, upon the surrender hereof by the Registered Holder
at the principal office of the Company, for new Warrants of like tenor
representing in the aggregate the purchase rights hereunder, and each of such
new Warrants shall represent such portion of such rights as is designated by the
Registered Holder at the time of such surrender. The date the Company initially
issues this Warrant shall be deemed to be the "Date of Issuance" hereof
regardless of the number of times new certificates representing the unexpired
and unexercised rights formerly represented by this Warrant shall be issued. All
Warrants representing portions of the rights hereunder are referred to herein as
the "Warrants."
Section 7. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company of the ownership and the loss, theft, destruction or
mutilation of any certificate evidencing this Warrant, and in the case of any
such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Company or, in the case of any such mutilation upon
surrender of such certificate, the Company shall (at its expense) execute and
deliver in lieu of such certificate a new certificate of like kind representing
the same rights represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate. Any such new certificate shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed certificate at any time shall be enforceable by anyone. An
applicant for such a substitute certificate also shall comply with such other
reasonable regulations and pay such other reasonable charges as the Company may
prescribe. All certificates evidencing Warrants shall be held and owned upon the
express condition that the foregoing provisions are exclusive with respect to
the replacement of lost, stolen, mutilated or destroyed certificates, and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement of
negotiable instruments or other securities without their surrender.
Section 8. Notices. Except as otherwise expressly provided
herein, all notices referred to in this Warrant shall be in writing and shall be
delivered personally, sent by reputable overnight courier service (charges
prepaid) or sent by registered or certified mail, return receipt requested,
postage prepaid and shall be deemed to have been given when so delivered or
deposited in the U. S. Mail (i) to the Company, at its principal executive
offices and (ii) to the Registered Holder of this Warrant, at such holder's
address as it appears in the records of the Company (unless otherwise indicated
by any such holder).
Section 9. Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Registered Holders of Warrants representing a majority of the shares of Warrant
Stock obtainable upon exercise of the Warrants.
Section 10. Descriptive Headings; Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The corporation
laws of the State of Delaware shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the
construction, validity, enforcement and interpretation of this Warrant shall be
governed by the internal law of the State of New York, without giving effect to
any choice of
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law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York.
* * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officers under its corporate seal and
to be dated the Date of Issuance hereof.
TELIGENT ACQUISITION CORP.
By
-----------------------------------
Its
----------------------------------
[Corporate Seal]
Attest:
--------------------------------
Secretary
EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W-____), xxxxxx agrees to subscribe for the
purchase of ______ shares of the Warrant Stock covered by such Warrant and makes
payment herewith in full therefor at the price per share provided by such
Warrant by the means described below (choose one by marking "x" in the space
provided).
Signature
-----------------------------
Address
--------------------------------
_____ tenders payment for such shares, in the amount of $_____ in
accordance with the terms of the Warrant.
_____ tenders payment for such shares by the surrender of debt or equity
securities of the Company or one of its wholly-owned Subsidiaries having
a Market Price equal to $_____.
_____ requests that such exercise be on a net basis in accordance with
the terms of the Warrant.
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, __________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. W-_____) with respect to the number of shares of the
Warrant Stock covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
and xxxxxx appoints the Secretary of Teligent Acquisition Corp. as attorney, to
transfer said Warrant on the books of Teligent Acquisition Corp., with full
power of substitution in the premises.
Dated: Signature
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-------------------------------
The above signature should
correspond exactly with the
name on the face of the
attached Warrant.
Witness
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