NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUED OR ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "ACT") OR REGISTERED OR QUALIFIED UNDER ANY OTHER APPLICABLE
FEDERAL OR STATE SECURITIES LAWS. THIS WARRANT MAY NOT BE EXERCISED AND THESE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR QUALIFICATION FILED IN
ACCORDANCE WITH THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE ACT WHICH SHALL BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
Void after 3:30 P.M., Denver Time, on April 12, 2002
Warrant to Purchase
61,611 Shares
of Common Stock
WARRANT TO PURCHASE SHARES OF COMMON STOCK
OF
TELECOM WIRELESS CORPORATION
This Is to Certify That, FOR VALUE RECEIVED,
XXXXXX X. XXXXXX
or registered assigns ("Holder"), is entitled to purchase, subject to the
provisions of this Warrant, from TELECOM WIRELESS CORPORATION, a Utah
corporation ("Company"), at any time not later than 3:30 P.M., Denver Time,
on April 12, 2002 (the "Expiration Date") 61,611 shares of common stock,
having $.001 par value per share, of the Company ("Common Stock") at an
exercise price, subject to adjustment as set forth below, of $5.275 per
share. In addition, the number of shares of Common Stock to be received upon
the exercise of this Warrant and the price to be paid for a share of Common
Stock are subject to adjustment from time to time as hereinafter set forth.
The shares of the Common Stock deliverable upon such exercise, and as
adjusted from time to time, are hereinafter sometimes referred to as "Warrant
Stock" and the exercise price of a share of Common Stock in effect at any
time and as adjusted from time to time is hereinafter sometimes referred to
as the "Exercise Price."
(a) EXERCISE OF WARRANT. Subject to the provisions of Section (o)
hereof, this Warrant may be exercised in whole or in part at any time or from
time to time not later than 3:30 P.M., Denver Time, on the Expiration Date,
or if the Expiration Date is a day on which banking institutions are
authorized by law to close, then on the next succeeding day which shall not
be such a day, by presentation and surrender hereof to the Company with the
Purchase Form annexed hereto duly executed and accompanied by payment of the
Exercise Price for the number of shares specified in such form, together with
all federal and state taxes applicable upon such exercise. If this Warrant
should be exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant evidencing the
right of the holder to purchase the balance of the shares purchasable
hereunder. Upon receipt by the Company of this Warrant at the office or
agency of the Company, in proper form for exercise, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such securities shall
not then be actually delivered to the Holder. The Exercise Price shall be
paid (i) in cash, (ii) by certified check or cashier's check, (iii) by
previously acquired shares of Common Stock having a Current Market Value
equal to the Exercise Price, (iv) by previously acquired shares of Common
Stock having a Current Market Value less than the Exercise Price, plus cash
or a certified or cashier's check for the balance of the Exercise Price, or
(v) at the Holder's option, by exchange of this Warrant for the aggregate
number of shares of Warrant Stock issuable upon exercise of this Warrant,
less that number of shares of Warrant Stock as have a then Current Market
Value equal to the aggregate Exercise Price of this Warrant and the Holder
shall pay no cash or other consideration in connection with such exercise
other than surrender to the Company of this Warrant.
(b) RESERVATION OF SHARES. The Company hereby agrees that at all
times there shall be reserved for issuance and/or delivery upon exercise of
this Warrant such number of shares of its Common Stock as shall be required
for issuance or delivery upon exercise of this Warrant.
(c) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the Current Market Value of such fractional share, determined
as follows:
(1) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such exchange or
listed on the Nasdaq Stock Market, the Current Market Value shall be
the last reported sale price of the Common Stock on the composite tape
of such exchange or on Nasdaq on the last trading day prior to the date
of exercise of this Warrant or if no such sale is made on such day, the
average closing bid and asked prices for such day on the composite tape
of such exchange or on Nasdaq; or
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the Current Market Value shall be the mean
of the last reported bid and asked prices reported by the National
Quotation Bureau, Inc. or the OTC Bulletin Board on the last trading
day prior to the date of the exercise of this Warrant; or
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so
reported, the Current Market Value shall be an amount, not less than
book value, determined in such reasonable manner as may be prescribed
by the Board of Directors of the Company, such determination to be
final and binding on the Holder.
(d) EXCHANGE, ASSIGNMENT OR LOSS OF WARRANT. Subject to Section (o)
herein, this Warrant is assignable and exchangeable, without expense, at the
option of the Holder, upon presentation and surrender hereof to the Company or
at the office of its stock transfer agent, if any, for other Warrants of
different denominations entitling the holder thereof to purchase in the
aggregate the same number of shares of Common Stock purchasable hereunder. Any
such assignment shall be made by surrender of this Warrant to the Company or at
the office of its stock transfer agent, if any, with the Assignment Form annexed
hereto duly executed and funds sufficient to pay any transfer tax; whereupon the
Company shall, without charge, execute and deliver a new Warrant in the name of
the assignee named in such instrument of assignment and this Warrant promptly
shall be canceled. This Warrant may be divided or combined with other Warrants
which carry the same rights upon presentation hereof at the office of the
Company or at the office of its stock transfer agent, if any, together with a
written notice specifying the names and denominations in which new Warrants are
to be issued and signed by the Holder hereof. The term "Warrant" as used herein
includes any Warrants issued in substitution for or replacement of this Warrant,
or into which this Warrant may be divided or exchanged. Upon receipt by the
Company of evidence satisfactory to it of the loss, theft, destruction or
2
mutilation of this Warrant, and (in the case of loss, theft or destruction)
of reasonably satisfactory indemnification including a surety bond, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor and date. Any such new
Warrant executed and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this Warrant so lost,
stolen, destroyed, or mutilated shall be at any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder of the Company, either at law or
equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
(f) ANTI-DILUTION PROVISIONS.
(1) STOCK SPLITS AND STOCK DIVIDENDS. In case the Company
shall at any time issue Common Stock or Convertible Securities by way
of dividend or other distribution on any stock of the Company or
subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall be proportionately decreased in the case of such
issuance (on the day following the date fixed for determining
shareholders entitled to receive such dividend or other distribution)
or decreased in the case of such subdivision or increased in the case
of such combination (on the date that such subdivision or combination
shall become effective).
(2) NO ADJUSTMENT FOR SMALL AMOUNTS. Anything in this Section
(f) to the contrary notwithstanding, the Company shall not be required
to give effect to any adjustment in the Exercise Price unless and until
the net effect of one or more adjustments, determined as above
provided, shall have required a change of the Exercise Price by at
least one cent, but when the cumulative net effect of more than one
adjustment so determined shall be to change the actual Exercise Price
by at least two cents, such change in the Exercise Price shall
thereupon be given effect.
(3) NUMBER OF SHARES ADJUSTED. Upon any adjustment of the
Exercise Price, the holder of this Warrant shall thereafter (until
another such adjustment) be entitled to purchase, at the new Exercise
Price, the number of Shares, calculated to the nearest full share,
obtained by multiplying the number of shares of Common Stock issuable
upon exercise of this Warrant by the Exercise Price in effect
immediately prior to effectiveness of the new Exercise Price and
dividing the product so obtained by the new Exercise Price.
(4) COMMON STOCK DEFINED. Whenever reference is made in this
Section (f) to the issue or sale of shares of Common Stock, the term
"Common Stock" shall mean the Common Stock of the Company of the class
authorized as of the date hereof and any other class of stock ranking
on a parity with such Common Stock. However, subject to the provisions
of Section (i) hereof, shares issuable upon exercise hereof shall
include only shares of the class designated as Common Stock of the
Company as of the date hereof.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be
adjusted as required by the provisions of Section (f) hereof, the Company
shall forthwith file in the custody of its Secretary or an Assistant
Secretary at its principal office, and with its stock transfer agent, if any,
an officer's certificate showing the adjusted Exercise Price determined as
herein provided and setting forth in reasonable detail the facts requiring
such adjustment and the calculation thereof. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Holder
and the Company shall, forthwith after each such adjustment, mail a copy of
such certificate to the Holder.
3
(h) NOTICES TO HOLDERS. So long as this Warrant shall be outstanding
and unexercised (i) if the Company shall pay any dividend or make any
distribution upon the Common Stock, or (ii) if the Company shall offer to the
holders of Common Stock for subscription or purchase by them any shares of
stock of any class or any other rights, or (iii) if any capital
reorganization of the Company, reclassification of the capital stock of the
Company, consolidation or merger of the Company with or into another
corporation, sale, lease or transfer of all or substantially all of the
property and assets of the Company to another corporation, or voluntary or
involuntary dissolution, liquidation or winding up of the Company shall be
effected, then, in any such case, the Company shall cause to be delivered to
the Holder, at least 30 days prior to the date specified in (x) or (y) below,
as the case may be, a notice containing a brief description of the proposed
action and stating the date on which (x) a record is to be taken for the
purpose of such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the 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 reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding
shares of Common Stock of the Company (other than a change in par value, or
from par value to no par value, or as a result of an issuance of Common Stock
by way of dividend or other distribution or of a subdivision or combination),
or in case of any consolidation or merger of the Company with or into another
corporation (other than a merger with a subsidiary in which merger the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of outstanding
shares of Common Stock of the class issuable upon exercise of this Warrant)
or in case of any sale or conveyance to another corporation of the property
of the Company as an entirety or substantially as an entirety, the Company
shall cause effective provision to be made so that the holder shall have the
right thereafter, by exercising this Warrant, to purchase the kind and amount
of shares of stock and other securities and property receivable upon such
reclassification, capital reorganization or other change, consolidation,
merger, sale or conveyance as if the holder had exercised this Warrant prior
to such transaction. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Warrant. A copy of such provision shall be
furnished to the holder(s) of Warrants within ten days after execution of the
appropriate agreement pertaining to same and, in any event, prior to any
consolidation, merger, sale or conveyance subject to the provisions of this
Section (i). The foregoing provisions of this Section (i) shall similarly
apply to successive reclassifications, capital reorganizations and changes of
shares of Common Stock and to successive consolidations, mergers, sales or
conveyances.
(j) DISSOLUTION. If, at any time prior to the expiration of this
Warrant and prior to the exercise thereof, any dissolution, liquidation or
winding up of the Company shall be proposed, the Company shall cause at least
30 days' notice to be mailed by certified mail to the registered holder of
this Warrant Certificate at his address as it appears on the books of the
Company. Such notice shall specify the date as of which holders of record of
Common Stock shall participate in any distribution or shall be entitled to
exchange their Common Stock for securities or other property, deliverable
upon such dissolution, liquidation or winding up, as the case may be; to the
end that, during such period of 30 days, the holders of this Warrant may
exercise this Warrant and purchase Common Stock (or other stock substituted
therefor as hereinbefore provided) and be entitled in respect of shares so
purchased to all of the rights of the other holders of Common Stock of the
Company. In case of a dissolution, liquidation or winding up of the Company,
all purchase rights under this Warrant shall terminate at the close of
business on the date as of which holders of record of the Common Stock shall
be entitled to participate in a distribution of the assets of the Company in
connection with such dissolution, liquidation or winding up (provided that in
no event shall said date be less than 30 days after completion of service by
certified mail of notice as aforesaid). Any Warrant not exercised prior to
such time
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shall be void and no rights shall exist thereunder. In any such case of
termination of purchase rights, a statement thereof shall be included in the
notice provided for herein.
(k) SPIN-OFFS. In the event the Company spins-off a subsidiary or
stock held in another corporation as an investment by distributing to the
shareholders of the Company, as a dividend or otherwise, the stock of the
subsidiary or other corporation, the Company shall reserve, for the life of
the Warrant, shares of the subsidiary or other corporation to be delivered to
the holders of the Warrants upon exercise to the same extent as if they were
owners of record of the Warrant Stock on the record date for payment of the
shares of the subsidiary or other corporation.
(l) NOTICE. Any notices or certificates by the Company to the Holder
and by the Holder to the Company shall be deemed delivered if in writing and
delivered personally (including by telex, telecopier, telegram or other
acknowledged receipt) or three business days following deposit in the United
States mails, sent by registered or certified mail, return receipt requested,
addressed as follows:
Holder: Xxxxxx X. Xxxxxx
000 Xxxx 000xx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Company: Telecom Wireless Corporation
0000 XXX Xxxx., 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
With a copy (which shall not constitute
notice) to:
Telecom Wireless Corporation
0000 XXX Xxxx., 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Any person may change the address for the giving of notice by notice duly
given effective five (5) business days thereafter.
(m) AMENDMENTS AND WAIVERS. Any term, condition or provision of this
Warrant may be amended and the observance thereof 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.
(n) ENTIRE AGREEMENT. This Warrant constitutes the entire agreement
among the parties thereto and supersedes any and all prior agreements whether
written or oral regarding the subject matter hereof.
(o) TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933.
(1) This Warrant or the Warrant Stock or any other security
issued or issuable upon exercise of this Warrant may not be offered or
sold except in conformity with the Securities Act of 1933, as amended,
and then only against receipt of an agreement of such person to whom
such offer of sale is made to comply with the provisions of this
Section (o) with respect to any resale or other disposition of such
securities.
5
(2) The Company may cause the following legend to be set forth
on each certificate representing Warrant Stock or any other security
issued or issuable upon exercise of this Warrant not theretofore
distributed to the public or sold to underwriters for distribution to
the public pursuant to Section (l) hereof, unless counsel for the
Company is of the opinion as to any such certificate that such legend
is unnecessary:
The securities represented by this certificate may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement made under the
Securities Act of 1933 (the "Act"), or pursuant to an
exemption from registration under the Act the availability of
which is to be established to the satisfaction of the Company.
(3) Notwithstanding anything herein contained to the contrary,
this Warrant shall not be exercisable unless and until the Company is
satisfied that exercise hereof would not result in loss of a claimed
securities registration exemption in connection with any other actual
or proposed transaction the effect of which would be materially adverse
to the Company.
(p) APPLICABLE LAW. This Warrant shall be governed by, and construed in
accordance with, the laws of the State of Colorado.
ATTEST: TELECOM WIRELESS CORPORATION
By:
------------------------------------
Xxxxx X. Xxxxxxx, Secretary Xxxxx X. Xxxxxxx, Chief Executive
Officer
[SEAL] Date:
----------------------------------
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PURCHASE FORM
Dated
-----------------
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing ________ shares of Common Stock and
hereby makes payment of $________ in payment of the actual exercise price
thereof.
--------------------
INSTRUCTIONS FOR REGISTRATION OF UNITS
Name
-------------------------------------------------------------
(please typewrite or print in block letters)
Address
----------------------------------------------------------
Signature
--------------------------------------------------------
Social Security or Employer I.D. No.
-----------------------------
ASSIGNMENT FORM
FOR VALUE RECEIVED, _________________ hereby sells, assigns and
transfers unto
Name
----------------------------------------------------------------------
(please typewrite or print in block letters)
Address
-------------------------------------------------------------------
the right to purchase Common Stock represented by this Warrant to the extent
of ________ Shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint ____________________________, attorney, to
transfer the same on the books of the Company with full power of substitution
in the premises.
Signature:
---------------------------
Dated:
-------------------------------
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