THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, PURSUANT TO RULE 144 UNDER THE ACT OR PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT.
No. IWCH (SJPS) - 1 Void after March 10, 2008
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC.
WARRANT TO PURCHASE COMMON STOCK
This Warrant, dated March 10, 1998, is issued to Vanguard Cellular
Operating Corp., a Delaware corporation (the "Holder"), by International
Wireless Communications Holdings, Inc., a Delaware corporation (the "Company"),
pursuant to the Series J Preferred Stock and Warrant Purchase Agreement, dated
as of March 10, 1998, by and among the Company and the investors named therein,
including the Holder ("Purchase Agreement").
1. PURCHASE OF SHARES. Subject to the terms and conditions
hereinafter set forth, the Holder is entitled, upon surrender of this Warrant at
the principal office of the Company (or at such other place as the Company shall
notify the Holder hereof in writing), to purchase a number of shares of the
Company's Class 1 Common Stock, par value $0.01 per share (the "Equity
Securities"), at a per share purchase price of No Dollars and One Cent ($0.01)
per share, which is equal to (a) the Total Number of Issuable Warrant Shares (as
defined below) at such time, REDUCED BY (b) the number of Warrant Shares as to
which this Warrant has theretofore been exercised or canceled (as adjusted
pursuant to Section 8, the "PREVIOUSLY ISSUED WARRANT SHARES"). The shares of
Equity Securities issuable at any time as described in clauses (a) and (b) above
are referred to as the "WARRANT SHARES". The purchase price of the Warrant
Shares as provided in this Section 1 (the "Exercise Price") shall be subject to
adjustment pursuant to Section 8 hereof.
2. DEFINITIONS.
(a) CORPORATE TRANSACTION. The term "Corporate Transaction"
shall mean (A) the acquisition of capital stock of the Company by another entity
by means of any transaction or series of related transactions (including,
without limitation, any reorganization, merger or consolidation but, excluding
any merger effected exclusively for the purpose of changing the domicile of the
Company); or (B) a sale of all or substantially all of the assets of the
Company; UNLESS the Company's stockholders of record as constituted immediately
prior to such acquisition or sale will, as a result of such acquisition or sale
(by virtue of securities issued as consideration for the Company's acquisition
or sale or otherwise) hold at least 50% of the voting power of the surviving or
acquiring entity immediately after such acquisition or sale.
(b) EARNED WARRANT PERCENTAGE. During each period set forth
below, the Earned Warrant Percentage will equal the corresponding percentage set
forth below:
CUMULATIVE
PERIOD EARNED WARRANT
PERCENTAGE
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March 10, 1998 to and including
September 9, 1998 22.0%
September 10, 1998 to and including
December 9, 1998 38.0%
December 10, 1998 and thereafter 58.0%
; provided that on and after the Termination Date (as defined below), the Earned
Warrant Percentage shall equal the Earned Warrant Percentage in effect on the
Termination Date. Notwithstanding the foregoing, if the Termination Date occurs
pursuant to Section 2(d) before December 10, 1998, the Earned Warrant Percentage
in effect at the beginning of the period in which the Termination Date occurs
shall be increased by an amount computed using the following formula, rounded to
the nearest whole number:
X = A x B
-------
C
Where X - The increase in the Earned Warrant Percentage
A - The difference between the Earned Warrant Percentage in
effect during the period when the Termination Date
occurs and the Earned Warrant Percentage applicable to
the following period
B - The number of days from the first date of the period in
which the Termination Date occurs up to (and including)
the Termination Date
C - The total number of days in the period in which the
Termination Date occurs to (and including) the last date
of such period
(c) SERIES J VALUATION PRICE. The term "Series J Valuation
Price" shall have the meaning given to it in Section V.B.4(a4)(i)(C) of the
Company's Amended and Restated Certificate of Incorporation in the form filed
with the Delaware Secretary of State pursuant to Section 1.1(a) of the Purchase
Agreement.
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(d) TERMINATION DATE. The term "Termination Date" shall mean
the date on which either of the following events first occurs: (i) the Company
has raised a total of not less than $50 million from a combination of (A) the
net proceeds from the issuance of public or private equity by the Company or any
subsidiary thereof (including the equity securities issued by the Company
pursuant to the Purchase Agreement) and (B) the net proceeds from any asset
sales by the Company and its subsidiaries and affiliates, to the extent such
proceeds may be used by the Company to make Permitted Investments (as such term
is defined in the Indenture dated as of August 15, 1996, between the Company, as
issuer, and Marine Midland Bank, as trustee) or (ii) a Corporate Transaction.
(e) TOTAL NUMBER OF ISSUABLE WARRANT SHARES. Means the quotient
obtained by dividing the amount in clause (i) below by the amount in clause (ii)
below, rounded up to the nearest whole number, where:
(i) (A) Ten Million Dollars ($10,000,000.00) (representing
the total purchase price paid by the Holder for the Series J Shares (as defined
in the Purchase Agreement) and this Warrant pursuant to the Purchase Agreement)
multiplied by (B) the Earned Warrant Percentage; and
(ii) The lesser of (A) $12.67 per share (subject to
appropriate adjustments for stock splits, combinations, dividends and the like)
and (B) the Series J Valuation Price (subject to appropriate adjustments for
stock splits, combinations, dividends and the like).
3. EXERCISE PERIOD. This Warrant is exercisable at any time on any
business day but only until and including the close of business on March 10,
2008.
4. METHOD OF EXERCISE. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise, from
time to time, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of this Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Secretary of the
Company at its principal offices; and
(b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Warrant Shares being purchased.
5. NET ISSUE EXERCISE.
(a) The Holder may elect to exchange the right to purchase all
or a portion of the Warrant Shares subject to this Warrant for Equity Securities
on a net issue basis by surrendering this Warrant at the principal office of the
Company together with the subscription notice of such election. Upon such
surrender, the Company shall issue to the Holder a number of shares of Equity
Securities computed using the following formula:
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X = (Y)(A-B)
--------
A
Where X - The number of shares of Equity Securities to be issued to
Holder.
Y - The number of shares of Warrant Shares as to which such
cancellation is to be effected.
A - The fair market value of one share of the Equity
Securities to be issued upon such cancellation.
B - Exercise Price (as adjusted to the date of such
calculations).
(b) For purposes of this Section, the Board of Directors of the
Company shall determine the fair market value in its good faith. Upon such
exchange, this Warrant shall be cancelled as to the number of Warrant Shares
represented by Y in the formula set forth in Section 5(a).
6. RETURN OF WARRANT AND CERTIFICATES FOR WARRANT SHARES. Upon the
exercise or cancellation of the purchase rights evidenced by this Warrant, one
or more certificates for the number of Warrant Shares to be issued shall be
issued as soon as practicable thereafter, and in any event within thirty
(30) days of the delivery of the subscription notice. Together with such share
certificate(s), the Company will return to the Holder (or to such other Person
as the Holder may designate, so long as the Holder has complied with the
applicable provisions of Section 11 as to the transfer of this Warrant to such
other Person) this Warrant, after recording on the attached
Exercise/Cancellation Schedule the date of such exercise or cancellation and the
number of Warrant Shares as to which this Warrant is being exercised or
canceled.
7. RESERVATION OF WARRANT SHARES. The Company covenants that it
will at all times keep available such number of authorized shares of its Equity
Securities issuable upon exercise of this Warrant and shares of its capital
stock issuable upon conversion of such Equity Securities, free from all
preemptive rights with respect thereto, which will be sufficient to permit the
exercise or cancellation of the rights under this Warrant for the full number of
Warrant Shares specified herein and the conversion of the Warrant Shares into
such shares of capital stock. The Company further covenants that (a) such
Warrant Shares, when issued pursuant to the exercise of this Warrant, and (b)
such shares of capital stock, when issued upon conversion of such Warrant
Shares, will be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens, and charges with respect to the issuance thereof.
8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The
number of Warrant Shares, the kind of securities purchasable upon exercise or
cancellation of rights under this Warrant and the Exercise Price shall be
subject to adjustment from time to time as follows:
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(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the
Company shall at any time prior to the expiration of this Warrant subdivide its
Equity Securities by split-up or otherwise, or combine its capital stock, or
issue additional securities as a dividend with respect to any shares of its
Equity Securities, the number of Warrant Shares shall forthwith be
proportionately increased in the case of a subdivision or stock dividend, or
proportionately decreased in the case of a combination. Inversely proportional
adjustments shall also be made to the Exercise Price payable per share, but the
aggregate purchase price payable for the total number of Warrant Shares
purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 8(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as of
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
(b) RECLASSIFICATION, REORGANIZATION, AND CONSOLIDATION. In
case of any reclassification, capital reorganization, or change in the capital
stock of the Company (other than as a result of a subdivision, combination, or
stock dividend provided for in Section 8(a) above), then, as a condition of such
reclassification, reorganization, or change, lawful provision shall be made, and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall have the right at any
time prior to the expiration of this Warrant to purchase, at a total price equal
to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities and property receivable in connection with such
reclassification, reorganization, or change by a holder of the same number of
shares of capital stock as were purchasable by the Holder immediately prior to
such reclassification, reorganization, or change. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
so that the provisions hereof shall thereafter be applicable with respect to any
shares of stock or other securities and property deliverable upon exercise
hereof, and appropriate adjustments shall be made to the Exercise Price per
share payable hereunder, provided the aggregate purchase price shall remain the
same.
(c) NOTICE OF ADJUSTMENT. When any adjustment is required to be
made in the Warrant Shares, in the number or kind of shares purchasable upon
exercise of this Warrant, or in the Exercise Price, the Company shall promptly
notify the Holder of such event and the adjusted number of Warrant Shares, the
adjusted Exercise Price and the number of shares and the type of securities or
property thereafter purchasable upon exercise of or cancellation of rights under
this Warrant. The Company shall give the Holder at least twenty (20) business
days' advance notice of any event that has, or with the passage of time or
giving of notice will, give rise to the liquidation or dissolution of the
Company or constitute a "Corporate Transaction" as defined in the Company's
Amended and Restated Certificate of Incorporation as currently in effect.
9. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise or cancellation
of rights under this Warrant, but in lieu of such fractional shares the Company
shall make a cash payment therefor on the basis of the fair market value (as
determined in good faith by the Company's Board of Directors) of one Warrant
Share of the type in question.
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10. NO STOCKHOLDER RIGHTS. Prior to exercise of this Warrant, the
Holder shall not be entitled to any rights of a stockholder with respect to the
Warrant Shares, including (without limitation) the right to vote such Warrant
Shares, receive dividends or other distributions thereon, exercise preemptive
rights or be notified of stockholder meetings, and such Holder shall not be
entitled to any notice or other communication concerning the business or affairs
of the Company. Notwithstanding the foregoing, the Company will give written
notice to the Holder at least twenty (20) days prior to the date on which the
Company closes its books or takes a record (i) with respect to any Distribution
(as defined in the Loan Agreement referred to in the last sentence of this
paragraph) upon the Equity Securities or any capital stock into which such
Equity Securities are convertible, (ii) with respect to any pro rata
subscription offer to holders of the Equity Securities or any capital stock into
which such Equity Securities are convertible or (iii) for determining rights to
vote with respect to any Liquidity Event (as defined below), Change of Control
(as defined below), dissolution or liquidation. The terms "Liquidity Event" and
"Change of Control" shall have the respective meanings given to them in the Loan
Agreement dated August 18, 1997 among the Company and the lenders named on
EXHIBIT A thereto.
11. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the Holder
and their respective successors and assigns.
The Holder may transfer in whole or in part the purchase rights
evidenced hereby to any third party to whom such rights may be transferred
without registration or qualification under federal or state securities laws,
provided: (a) the transferee or assignee receives a Warrant to purchase at least
five percent (5%) of the Warrant Shares; (b) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of the
name and address of such transferee or assignee; (c) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of this
Warrant; and (d) the transferor shall have delivered to the Company, if
reasonably requested by counsel to the Company, an opinion of counsel
substantially to the effect that the transfer or assignment can be effected
without registration or qualification under applicable federal or state
securities laws (or, at the Holder's option, a certification by the Holder to
that effect in which the Holder agrees to indemnify and hold harmless the
Company in respect of any violation of such securities laws in connection with
such transfer). Upon surrender of this Warrant to the Secretary of the Company
at its principal offices after any such transfer, the Company will issue one or
more new Warrants of like tenor (in the name(s) of the Holder and/or the
transferee(s), as appropriate) representing in the aggregate the purchase rights
represented by this Warrant.
12. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended
and the observance of any term of this Warrant may be waived (either generally
or in a particular instance and either retroactively or prospectively), with the
written consent of the Company and the holders of the Warrants representing a
majority of the securities as to which all outstanding Warrants are then
exercisable. Any waiver or amendment effected in accordance with this Section
shall be binding upon each holder of the Warrants, any Warrant Shares thereafter
purchased under this Warrant, each future holder of all such Warrant Shares, and
the Company.
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13. EFFECT OF AMENDMENT OR WAIVER. The Holder acknowledges that by
the operation of Section 12, the holders of the Warrants representing a majority
of the securities as to which all outstanding Warrants are then exercisable will
have the right and power to diminish or eliminate all rights of the Holder under
this Warrant.
14. GOVERNING LAW. This Warrant shall be governed by the laws of the
State of Delaware as applied to agreements among Delaware residents made and to
be performed entirely within the State of Delaware.
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
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SUBSCRIPTION
International Wireless Communications Holdings, Inc.
Attention: Corporate Secretary
1. The undersigned hereby elects to purchase, pursuant to the
provisions of the Warrant to Purchase _______________ shares of
_________________ stock of International Wireless Communications Holdings, Inc.
and held by the undersigned, ____________ shares of ________ stock of
International Wireless Communications Holdings, Inc. Payment of the exercise
price per share required under such Warrant accompanies this Subscription.
1. The undersigned hereby elects to receive shares equal to the
value of this Warrant as to _________ Warrant Shares in the manner specified in
Section 5 of the Warrant.
[Strike paragraph above that does not apply.]
Date:
------------------------
Signature:
------------------------
Address:
------------------------
------------------------
Name in which shares should be registered:
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EXERCISE/CANCELLATION SCHEDULE
Date Number of Warrant Shares as to which Warrant
Exercised or Canceled
