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EXHIBIT 10.4 PAGE 1
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THIS WARRANT AND THE SHARES OF COMMON STOCK OF INTERAMERICAS COMMUNICATIONS
CORPORATION TO BE ISSUED UPON ANY EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (I) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (II) TO THE EXTENT
APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING
TO THE DISTRIBUTION OF SECURITIES) OR (III) IF AN EXEMPTION FROM REGISTRATION
UNDER THE ACT IS AVAILABLE.
WARRANT
TO PURCHASE SHARES
OF
COMMON STOCK
OF
INTERAMERICAS COMMUNICATIONS CORPORATION
FEBRUARY 3,1997
This certifies that, for value received, NU Investments, LLC ("NUI") and
any subsequent transferee pursuant to the terms of the Agreement (as defined
below) of even date herewith and this Warrant (each, a "Holder") is entitled to
purchase, subject to the provisions of this Warrant, from InterAmericas
Communications Corporation, a Texas corporation (the "Issuer"), at any time or
from time to time on or after the date hereof and on or before February 2, 2002
(the "Expiration Date"), One Hundred Thousand (100,000) fully paid and
nonassessable shares of common stock, par value $.001 per share (the 'Common
Stock"'), of the Issuer at an exercise price of Five Dollars ("5.00) per share,
subject to adjustment pursuant to the terms hereunder (the "Exercise Price")
(such shares of Common Stock and other securities issued and issuable upon
exercise of this Warrant, the "Warrant Shares").
Section 1. Definitions. Except as otherwise specified herein, terms
defined herein shall have the meanings assigned to them in the
Subscription Agreement of even date herewith by and between NUI and the Issuer
(the "Agreement").
Section 2 Exercise of Warrant.
(a) Subject to the provisions hereof this Warrant may be
exercised, in whole or in part, but not as to a fractional share, at any
time or from time to time on or after the date hereof and on or before
the Expiration Date, by presentation and surrender hereof to the Issuer
at the address which, in accordance with the provisions of Section 9
hereof is then effective for notices to the Issuer, with the Election to
Purchase Form annexed hereto as SCHEDULE ONE, duly executed and
accompanied by payment to the Issuer as further set forth below in this
Section 2, for the account of the Issuer, of the Exercise Price for the
number of Warrant Shares specified in such form. If this Warrant should
be exercised in part only, the Issuer" shall, upon surrender of this
Warrant, execute and deliver a new Warrant evidencing the rights of the
Holder hereof to purchase the balance of the Warrant Shares purchasable
hereunder. The Issuer shall maintain at its principal place of business a
register for the registration of this Warrant and registration of
transfer of this Warrant. The Exercise Price for the number of Warrant
Shares specified in the Election to Purchase Form shall be payable in
United States Dollars by certified or official bank check payable to the
order of the Issuer or by wire transfer of immediately available funds to
an account specified by the Issuer for that purpose.
(b) Certificates representing Warrant Shares shall bear the
following restrictive legend:
""The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
""Securities Act") or any state securities laws. They may not be
offered or transferred by sale, assignment, pledge or otherwise
unless (i) a registration statement for the securities under the
Securities Act is in effect or (ii) the corporation has
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received an opinion of counsel, which opinion is
satisfactory to the corporation. to the effect that
such registration is not required under the Securities
Act."
c) Notwithstanding any provisions herein to the contrary, if the
Fair Market Value (hereinafter defined) of one share of Common Stock is
greater than the Exercise Price (at the date of calculation as set forth
below), in lieu of exercising this Warrant for cash, the Holder may elect
to receive shares equal to the value (as determined below) of this
Warrant (or the portion thereof being canceled) by surrender of this
Warrant at the principal office of the Issuer together with the properly
endorsed Notice of Exercise and notice of such election in which event
the Issuer shall issue to the Holder a number of shares of Common Stock
computed using the following formula:
Y (A - B)
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X = A
Where X = the number of shares of Common Stock to be issued to the
Holder
Y = the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the
date of such calculation)
A = the Fair Market Value of one share of the Issuer's Common
Stock (at the date of such calculation)
B = Exercise Price (as adjusted at the date of such calculation)
For purposes of the above calculation, Fair Market Value of one share of
Common Stock shall be the average closing bid price (as reported by The Nasdaq
SmallCap Market) of the Issuer's Common Stock for the five (5) consecutive
trading days ending oh the trading day immediately preceding the date of the
Election to Purchase.
Section 3. Reservation of Shares Preservation of Rights of Holder. The
Issuer hereby agrees that there shall be reserved for issuance and/or delivery
upon exercise of this Warrant, such number of Warrant Shares as shall be
required for issuance or delivery upon exercise of this Warrant. The Warrant
surrendered upon exercise shall be canceled by the Issuer. After the Expiration
Date, no shares of Common Stock shall be subject to reservation in respect of
this Warrant. The Issuer further agrees (i) that it will not, by amendment of
its Articles of Incorporation or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other voluntary act, avoid or
seek to avoid the observation or performance of any of the covenants,
stipulations or conditions to be observed or performed hereunder by the Issuer,
(ii) promptly to take such action as may be required of the Issuer to permit
the Holder to exercise this Warrant and the Issuer duly and effectively to
issue shares of its Common Stock or other securities as provided herein upon
the exercise hereof and (iii) promptly to take all action required or provided
herein to protect the rights of the Holder granted hereunder against dilution.
Without limiting the generality of the foregoing, should the Warrant Shares at
any time consist in whole or in part of shares of capital stock having a par
value, the Issuer agrees that before taking any action which would cause an
adjustment of the Exercise Price so that the same would be less than the then
par value of such Warrant Shares, the Issuer shall take any corporate action
which may, in the opinion of its counsel, be necessary in order that the Issuer
may validly and legally issue fully paid and nonassessable shares of such
Common Stock at the Exercise Price as so adjusted. The Issuer further agrees
that it will not establish a par value for its Common Stock while this Warrant
is outstanding in an amount greater than the Exercise Price.
Section 4. Exchange. Transfer. Assignment or Loss of Warrant. Any
attempted transfer of this Warrant, the Warrant Shares or any new Warrant not
in accordance with this Section shall be null and void, and the Issuer shall
not in any way be required to give effect to such transfer No transfer of this
Warrant shall be effective for any purpose hereunder until (i) written notice
of such transfer and of the name and address of the transferee has been
received by the Issuer, and (ii) the transferee shall first agree in a writing
deposited with the Secretary of the Issuer to be bound by all the provisions of
this Warrant and the Agreement. Upon surrender of this Warrant to the Issuer by
any transferee authorized under the provisions of this Section 4, the Issuer
shall, without charge, execute and deliver a new Warrant registered in the name
of such transferee at the address specified by such transferee, and this
Warrant shall promptly be canceled. The Issuer may deem and treat the
registered holder of any Warrant as the absolute owner thereof for all
purposes, and the Issuer shall not be affected by any notice to the contrary.
Any Warrant, if presented by an authorized transferee, may be exercised by such
transferee without prior delivery of a new Warrant issued in the name of the
transferee.
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Upon receipt by the Issuer of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Warrant, if mutilated, the Issuer will
execute and deliver a new Warrant of like tenor and date. Any such new Warrant
executed and delivered shall constitute a separate contractual obligation on
the part of the Issuer, whether or not the Warrant so lost. stolen, destroyed
or mutilated shall be at any time enforceable by anyone.
Section 5 Rights of Holder. Neither a Holder nor his transferee by
devise or the laws of descent and distribution or otherwise shall be,
or have any rights or privileges O{ A shareholder of the Issuer with respect to
any Warrant Shares, unless and until certificates representing such Warrant
Shares shall have been issued and delivered thereto.
Section 6. Adjustments in Exercise Price and Warrant Shares. The
Exercise Price and Warrant Shares shall be subject to adjustment from
time to time as provided in this Section 6.
(a) If the Issuer is recapitalized through the subdivision or
combination of its outstanding shares of Common Stock into a larger or
smaller number of shares, the number of shares of Common Stock for which
this Warrant may be exercised shall be increased or reduced, as of the
record date for such recapitalization, in the same proportion as the
increase or decrease in the outstanding shares of Common Stock, and the
Exercise Price shall be adjusted so that the aggregate amount payable for
the purchase of all Warrant Shares issuable hereunder immediately after
the record date for such recapitalization shall equal the aggregate
amount so payable immediately before such record date.
(b) If the Issuer declares a dividend on Common Stock, or makes a
distribution to holders of Common Stock, and such dividend or
distribution is payable or made in Common Stock or securities convertible
into or exchangeable for Common Stock, or rights to purchase Common Stock
or securities convertible into or exchangeable for Common Stock, the
number of shares of Common Stock for which this Warrant may be exercised
shall be increased, as of the record date for determining which holders
of Common Stock shall be entitled to receive such dividend or
distribution, in proportion to the increase in the number of outstanding
shares (and shares of Common Stock issuable upon conversion of all such
securities convertible into Common Stock) of Common Stock as a result of
such dividend or distribution, and the Exercise Price shall be adjusted
so that the aggregate amount payable for the purchase of all the Warrant
Shares issuable hereunder immediately after the record date for such
dividend or distribution shall equal the aggregate amount so payable
immediately before such record date.
(c) If the Issuer declares a dividend on Common Stock (other
than a dividend covered by subsection (b) above) or distributes to
holders of its Common Stock, other than as part of its dissolution or
liquidation or the winding up of its affairs, any shares of its capital
stock. any evidence of indebtedness or any cash or other of its assets
(other than Common Stock or securities convertible into or exchangeable
for Common Stock), the Holder shall receive notice of such event as set
forth in Section 8 below.
(d) In case of any consolidation of the Issuer with, or merger of
the Issuer into, any other corporation (other than a consolidation or
merger in which the Issuer is the surviving or resulting corporation and
in which the stockholders of the Issuer immediately prior to the merger
or consolidation hold more than 50% of the voting stock of the Issuer
following the merger or consolidation), or in case of any sale or
transfer of all or substantially all of the assets of the Issuer, or in
the case of any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the issuer, except where the Issuer is the surviving
entity and the stockholders of the Issuer immediately prior to the
exchange hold more than 50% of the voting stock of the Issuer after the
exchange), the corporation formed by such consolidation or the
corporation resulting from such merger or the corporation which shall
have acquired such assets or securities of the Issuer, as the case may
be, shall execute and deliver to the Holder simultaneously therewith a
new Warrant, satisfactory in form and substance to the Holder, together
with such other documents as the Holder may reasonably request, entitling
the Holder thereof to receive upon exercise of such Warrant the kind and
amount of shares of stock and other securities and property receivable
upon such consolidation, merger, sale, transfer, or exchange of
securities, or upon the dissolution following such a sale or other
transfer, by a holder of the number of shares of Common Stock purchasable
upon exercise of this Warrant immediately prior to such consolidation,
merger, sale, transfer, or exchange. Such new Warrant shall contain the
same basic other terms and conditions as this Warrant and shall provide
for adjustments which, for events subsequent to the effective date of
such written instrument, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 6. The above
provisions of this paragraph (d) shall similarly apply to successive
consolidations, mergers, exchanges, sales or other transfers
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covered hereby.
(e) If the Issuer shall, at any time before the expiration of this
Warrant, sell all or substantially all of its assets and distribute the
proceeds thereof to the Issuer's shareholders, the Holder shall, upon
exercise of this Warrant have the right to receive, in lieu of the shares
of Common Stock of the Issuer that the Holder otherwise would have been
entitled to receive, the same kind and amount of assets as would have
been issued, distributed or paid to the Holder upon any such distribution
with respect to such shares of Common Stock of the Issuer had the Holder
been the holder of record of such shares of Common Stock receivable upon
exercise of this Warrant on the date for determining those entitled to
receive any such distribution. If any such distribution results in any
cash distribution in excess of the Exercise Price provided by this
Warrant for the shares of Common Stock receivable upon exercise of this
Warrant, the Holder may, at the Holder's option, exercise this Warrant
without making payment of the Exercise Price and, in such case, the
Issuer shall, upon distribution to the Holder, consider the Exercise
Price to have been paid in full and, in making settlement to the Holder,
shall obtain receipt of the Exercise Price by deducting an amount equal
to the Exercise Price for the shares of Common Stock receivable upon
exercise of this Warrant from the amount payable to the Holder.
(f) If an event occurs which is similar in nature to the events
described in this Section 6, but is not expressly covered hereby, the
Board of Directors of the Issuer shall make or arrange for an equitable
adjustment to the number of Warrant Shares and the Exercise Price.
(g) The term "Common Stock" shall mean the Common Stock of the
Issuer as the same exists at the Closing Date or as such stock may be
constituted from time to time, except that for the purpose of this
Section 6, the term "Common Stock" shall include any stock of any class
of the Issuer which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Issuer and which is not subject to
redemption by the Issuer.
(h) Whenever the number of Warrant Shares or the Exercise Price
shall be adjusted as required by the provisions of this Section 6, the
Issuer forthwith shall file in the custody of its secretary or an
assistant secretary, at its principal office, and furnish to each Holder
hereof, a certificate prepared in accordance with paragraph (h) above,
showing the adjusted number of Warrant Shares and the Exercise Price and
setting forth in reasonable detail the circumstances requiring the
adjustments.
(i) Notwithstanding any other provision, this Warrant shall be
binding upon and inure to the benefit of any successors and assigns of
the Issuer.
(j) No adjustment in the Exercise Price in accordance with the
provisions of this Section 6 need be made if such adjustment would amount
to a change in such Exercise Price of less than $.01; provided however,
that the amount by which any adjustment is not made by reason of the
provisions of this paragraph (k) shall be carried forward and taken into
account at the time of any subsequent adjustment in the Exercise Price
(k) If an adjustment is made under this Section 6 and the event to
which the adjustment relates does not occur, then any adjustments in
accordance with this Section 6 shall be readjusted to the Exercise Price
and the number of Warrant Shares which would be in effect had the earlier
adjustment not been made.
Section 7. Taxes on Issue or Transfer of Common Stock and Warrant. The
Issuer shall pay any and all documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of Common Stock or
other securities on the exercise of this Warrant. The Issuer shall not be
required to pay any tax which may be payable in respect of any transfer of this
Warrant or in respect of any transfers involved in the issue or delivery of
shares or the exercise of this Warrant in a name other than that of the Holder
and the person requesting such transfer, issue or delivery shall be responsible
for the payment of any such tax (and the Issuer shall not be required to issue
or deliver said shares until such tax has been paid or provided for)
Section 8. Notice of Adjustment. So long as this Warrant shall be
outstanding, (a) if the issuer shall propose to pay any dividends or make any
distribution upon the Common Stock, or (b) if the Issuer shall offer generally
to the holders of Common Stock the right to subscribe to or purchase any shares
of any class of Common Stock or securities convertible into Common Stock or any
other similar rights, or (c) if there shall be any proposed capital
reorganization of the Issuer in which the Issuer is not the surviving entity,
recapitalization of the capital stock of the Issuer, consolidation or merger of
the Issuer with or into another corporation, sale, lease or other transfer of
all or substantially all of the property and assets of the Issuer, or voluntary
or involuntary dissolution, liquidation or winding up of the Issuer, or (d) if
the Issuer
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shall give to its stockholders any notice, report or other
communication respecting any significant or special action or event, then in
such event, the Issuer shall give to the Holder, at least ten (10) days prior
to the relevant date described below (or such shorter period as is reasonably
possible if thirty days is not reasonably possible), a notice containing a
description of the proposed action or event and stating the date or expected
date on which a record of the Issuer's stockholders is to be taken for any of
the foregoing purposes, and the date or expected date on which any such
dividend, distribution, subscription reclassification, reorganization,
consolidation, combination, merger, conveyance, sale, lease or transfer.
dissolution, liquidation or winding up is to take place and the date or
expected date, if any is to be fixed, as of which the holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such event.
Section 9. Notice. Any notice to be given or to be served upon any party
in connection with the Warrant must be in writing and will be deemed to have
been given and received upon confirmed receipt, if sent by facsimile, or two
(2) days after it has been submitted for delivery by Federal Express or an
equivalent carrier, charges prepaid and addressed to the following addresses
with a confirmation of delivery:
If to the Issuer, to:
InterAmericas Communications Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn.:Xxxxxxxx X. Northland, Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to:
Xxxxxx Xxxxx, Esq.
Xxxxx & XxXxxxxx
Xxxxxxx Xxxxx - Xxxxx 0000
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00X00-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Holder, to:
NU Investments, LLC
Field Secretaries
do Bank of Xxxxxxxxxxx International Ltd.
P.O. Box 705
Xxxxxxxxxxx House, Fort Street
Grand Cayman, Cayman Island
Attn.:Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to;
Xxxxxxx X. Xxxx, Esq.
Xxxxxxxx & Xxxxxx
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may, at any time by giving notice to the other party, designate
any other address in substitution of an address established pursuant to the
foregoing to which such notice will be given.
Section 10. Choice of Law: Conflict of Law: Jurisdiction and Venue.
Except as otherwise expressly provided
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herein, the terms, conditions and enforceability of the Warrant shall be
governed by and interpreted under the laws of the State of Illinois. Any claim,
dispute or disagreement relating to the terms and conditions of this Warrant,
or arising from this Warrant or the subject matter of this Warrant, may be
brought only in the Circuit Courts of Xxxx or DuPage Counties in the State of
Illinois or in the United States District Court for the Northern District of
Illinois, which shall have exclusive jurisdiction thereof The parties to the
Warrant consent to such jurisdiction and venue and hereby knowingly and
voluntarily waive all objections thereto on the basis of lack of personal
jurisdiction, venue or convenience.
[SIGNATURE PAGE FOLLOWS]
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DATED: FEBRUARY 3, 1997
INTERAMERICAS COMMUNICATIONS
CORPORATION
BY: /s/ Xxxxxxxx X. Northland
--------------------------------
Name: Xxxxxxxx X. Northland
Title: Chairman & CEO
ATTEST:
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, Secretary
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SCHEDULE ONE
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise this Warrant and to
purchase _______ shares of InterAmericas Communications Corporation Common
Stock issuable upon the exercise of this Warrant, and requests that
certificates for such shares be issued in the name of:
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(Name)
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(Xxxxxxx)
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(Xxxxxx Xxxxxx Social Security or other taxpayer
identifying number, if applicable)
and, if different from above, be delivered to:
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(Name)
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(Address)
and, if the number of Warrant Shares so purchased are not all of the Warrant
Shares issuable upon exercise of this Warrant, that a Warrant to purchase the
balance of such Warrant Shares be registered in the name of, and delivered to,
the undersigned at the address stated below.
Date:
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Name of Registered Owner:
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Address:
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Signature:
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