EXHIBIT 2
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR SOLD EXCEPT
IN COMPLIANCE THEREWITH OR PURSUANT TO AN EXEMPTION THEREFROM.
AMERICAN MOBILE SATELLITE CORPORATION
Warrant for the Purchase of Shares of
Common Stock of American Mobile Satellite Corporation
No. Warrant to Purchase
750,000 Shares
FOR VALUE RECEIVED, AMERICAN MOBILE SATELLITE CORPORATION, a
Delaware corporation (the "Company"), hereby certifies that Xxxxxx Electronics
Corporation, its successor or permitted assigns (the "Holder"), is entitled,
subject to the provisions of this Warrant, to purchase from the Company, at the
times specified herein, One Hundred and Twenty Five Thousand (125,000) (the
"Warrant Share Amount") fully paid and non-assessable shares of Common Stock of
the Company, par value $.01 per share (the "Common Stock"), at a purchase price
per share equal to the Exercise Price (as hereinafter defined). The Warrant
Share Amount and the Exercise Price are subject to adjustment from time to time
as hereinafter set forth.
DEFINITIONS. The following terms, as used herein, have the following
meanings:
"Accepted Alien Ownership Percentage Limitation" means 24.99% or, in
the event of a modification of the Alien Ownership Restrictions subsequent to
the date hereof, such percentage limitation upon the Company's Alien ownership
as may be in effect from time to time as a result of such modification, less
0.01%.
"Alien" means any alien or a representative thereof, or a foreign
government or a representative thereof, or a corporation or other entity
organized under the laws of any foreign government.
NYFS07...:\56\53356\0056\0297\WRT4068L.190
"Alien Owned Percentage" means, with respect to any Person, the
percentage of total ownership in such Person owned of record, as well as the
percentage of total ownership in such Person voted, by Aliens; provided, that if
under the Alien Ownership Restrictions such Person would be deemed to have a
percentage of total ownership owned of record or voted by Aliens other than the
actual percentage so owned or voted, then such Person's Alien Ownership
Percentage shall be such deemed percentage.
"Alien Ownership Restrictions" means Section 310(b) of the
Communications Act, as modified by any interpretation, ruling or order of the
Federal Communications Commission (or any successor agency) applicable to the
Company or any of its subsidiaries.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in the City of New York are authorized by law to
close.
"Communications Act" means the Communications Act of 1934, as
amended, or any successor statute.
"Current Market Price Per Common Share" has the meaning set forth in
Section 10.D.
"Exercise Date" means the applicable date of exercise of this
Warrant, as indicated on the Warrant Exercise Notice delivered by the Holder.
"Exercise Price" means initially $12.51per Warrant Share, as
adjusted from time to time.
"Expiration Date" means, March 31, 2005 at 5:00 p.m. New York City
time.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust, or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
2
"Warrant Exercise Notice" means the Warrant Exercise Notice forming
a part hereof.
"Warrant Margin" means, on any date, the difference of (x) the
greater of (A) the average of the Closing Prices (as defined in Section 10.D) on
each of the 20 trading days immediately preceding such date and (B) the Closing
Date on the trading day two trading days prior to such date, minus (y) the
Exercise Price.
"Warrant Share Amount" has the meaning set forth in the preamble
hereof.
"Warrant Shares" means the shares of Common Stock deliverable upon
exercise of this Warrant, as adjusted from time to time.
EXERCISE OF WARRANT.
The Holder is entitled to exercise this Warrant in whole or in
part at any time, or from time to time, to and including the Expiration Date or,
if such day is not a Business Day, then on the next succeeding day that shall be
a Business Day. To exercise this Warrant, the Holder shall execute and deliver
to the Company at its address set forth in Section 12 hereof a Warrant Exercise
Notice substantially in the form annexed hereto and shall deliver to the Company
(x) this Warrant Certificate, including the Warrant Exercise Subscription Form
forming a part hereof duly executed by the Holder, and (y) subject to Section
2.B, payment of the Exercise Price then in effect for such Warrant Shares. Upon
such delivery and payment, the Holder shall be deemed to be the holder of record
of the Warrant Shares subject to such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such Warrant Shares shall not then be actually delivered to the
Holder.
The Exercise Price may be paid in cash or by certified or
official bank check or bank cashier's check payable to the order of the Company
or by wire transfer of immediately available funds to an account designated by
the Company or by cancellation of indebtedness owed to the Holder or by any
combination of such methods. In the alternative, the Holder may exercise its
right to receive Warrant Shares on a net basis, such that, without the exchange
of any funds, the Holder will receive that number of Warrant Shares (and such
other consideration) otherwise issuable (or payable) upon exercise of this
Warrant less that number of Warrant Shares having an aggregate Current Market
Price Per Common Share on the Exercise Date equal to the aggregate Exercise
Price that would otherwise have been paid by the
3
Holder for the Warrant Shares. The Company shall pay any and all documentary,
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of this Warrant and the issue and delivery of the Warrant Shares.
C. If the Holder exercises this Warrant in part, this Warrant
Certificate shall be surrendered by the Holder to the Company and a new Warrant
Certificate of the same tenor and for the unexercised number of Warrant Shares
shall be executed by the Company. The Company shall register the new Warrant
Certificate in the name of the Holder or in such name or names of its
transferee(s) pursuant to Section 8 hereof as may be directed in writing by the
Holder and deliver the new Warrant Certificate to the Person or Persons entitled
to receive the same.
Except as otherwise provided in Section 3, upon surrender of
this Warrant Certificate in conformity with the foregoing provisions, the
Company shall transfer to the Holder of this Warrant Certificate appropriate
evidence of ownership of the shares of Common Stock or other securities or
property (including any money) to which the Holder is entitled, registered or
otherwise placed in, or payable to the order of, the name or names of the Holder
or its transferee(s) as may be directed in writing by the Holder, and shall
deliver such evidence of ownership and any other securities or property
(including any money) to the Person or Persons entitled to receive the same,
together with an amount in cash in lieu of any fraction of a share as provided
in Section 7 below.
OWNERSHIP LIMITATION. If at any time the exercise of any Warrants
pursuant to Section 2 would cause the Company's Alien Ownership Percentage to
exceed the Accepted Alien Ownership Percentage Limitation, then in lieu of
issuing shares of Common Stock pursuant to Section. 2:
the Company shall issue to each Holder exercising Warrants at
such time (each an "Exercising Holder") whose Alien Ownership Percentage is less
than or equal to the Accepted Alien Ownership Percentage Limitation the number
of shares of Common Stock to which such Exercising Holder is entitled pursuant
to Section 2;
the Company shall issue to each Exercising Holder whose Alien
Ownership Percentage is greater than the Accepted Alien Ownership Percentage
Limitation (each, an "Affected Exercising Holder") a number of shares of Common
Stock equal to the quotient of (x) the product of (A) the number of shares of
Common Stock that, immediately after giving effect to any issuances of Common
Stock pursuant to the foregoing Section 3.A, could be issued
4
to a Person with a 100% Alien Ownership Percentage without causing the Company's
Alien Ownership Percentage to exceed the Accepted Alien Ownership Percentage
Limitation, multiplied by (B) the number of shares of Common Stock to which such
Affected Exercising Holder would be entitled pursuant to Section 2 but for the
application of this Section 3, divided by (y) the product of (A) the aggregate
number of shares of Common Stock to which all Affected Exercising Holders would
be entitled pursuant to Section 2 but for the application of this Section 3,
multiplied by (B) such Affected Exercising Holder's Alien Ownership Percentage;
provided that in no event shall the number of shares of Common Stock issuable to
any Affected Exercising Holder pursuant to this Section 3.B exceed the number of
shares of Common Stock to which such Affected Exercising Holder would have been
entitled pursuant to Section 2 but for the application of this Section 3; and
A.the Company shall deliver by wire transfer of immediately
available funds to the account of each Affected Exercising Holder specified in
such Affected Exercising Holder's Warrant Exercise Notice, an amount equal to
the product of (x) the number of shares of Common Stock to which such Affected
Exercising Holder would have been entitled pursuant to Section 2 that are not
issuable to such Affected Exercising Holder pursuant to the foregoing Section
3.B, multiplied by (y) the Warrant Margin on the Exercise Date.
NASD LIMIT. Notwithstanding the provisions of Sections 2 and 3, in
no event shall this Warrant be exercisable for an aggregate number of shares of
Common Stock equal to or greater than such number of shares as would require the
approval of the Company Stockholders pursuant to Rule 4460(i)(1)(D) of the
National Association of Securities Dealers, Inc. (the "NASD Limit") unless the
Company's stockholders have, prior to any exercise of this Warrant that would
require the issuance of Common Stock equal to or greater than the NASD Limit,
approved the exercise of Warrants for an aggregate number of shares of Common
Stock equal to or greater than the NASD Limit. If, upon any exercise of this
Warrant, shares of Common Stock that would otherwise be issuable upon such
exercise are not issuable due to the provisions of the foregoing sentence, then
in lieu of issuing shares of Common Stock pursuant to Sections 2 or 3:
the Company shall issue the maximum number of shares of Common
Stock, if any, issuable up to the NASD Limit; provided, that if more than
one holder of Warrants is exercising Warrants at such time. such issuance
shall be prorated in proportion to the number of shares of Common Stock to
which each holder of Warrants exercising Warrants at such time would be
entitled but for the provisions of this Section 4; and
5
the Company shall deliver by wire transfer of immediately
available funds to the account of each Exercising Holder specified in such
Exercising Holder's Warrant Exercise Notice, an amount equal to the
product of (x) the number of shares of Common Stock to which such
Exercising Holder would have been entitled pursuant to the foregoing
Sections 2 and 3 that are not issuable to such Exercising Holder pursuant
to the foregoing clause (i), and (y) the Warrant Margin on the Exercise
Date.
RESTRICTIVE LEGEND. Upon original issuance thereof, and until such
time as the same shall have been registered under the Securities Act or sold
pursuant to Rule 144 promulgated thereunder (or any similar rule or regulation),
each Warrant Certificate and any certificates evidencing Warrant Shares shall
bear a legend substantially in the form of the legend set forth on the first
page hereof, unless in the opinion of counsel reasonably satisfactory to the
Company, such legend is no longer required by the Securities Act.
RESERVATION OF SHARES. The Company hereby agrees that at all times
it shall reserve for issuance and delivery upon exercise of this Warrant such
number of its authorized but unissued shares of Common Stock as will be
sufficient to permit the exercise in full of this Warrant. All such shares shall
be duly authorized and, when issued upon such exercise, shall be validly issued,
fully paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale and free and clear of all
preemptive rights.
FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant and in lieu
of delivery of any such fractional share upon any exercise hereof, the Company
shall pay to the Holder an amount in cash equal to such fraction multiplied by
the Current Market Price Per Common Share on the Exercise Date.
6
EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
The Company shall from time to time register the exchange or
transfer of any outstanding Warrant Certificates in a Warrant register to be
maintained by the Company upon surrender thereof, accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company, duly
executed by the registered Holder or Holders thereof or by the duly appointed
legal representative thereof or by a duly authorized attorney. Each taker and
holder of this Warrant Certificate by taking or holding the same, consents and
agrees that the registered holder hereof may be treated by the Company and all
other Persons dealing with this Warrant Certificate as the absolute owner hereof
for any purpose and as the Person entitled to exercise the rights represented
hereby.
Prior to any proposed transfer of the Warrants or the Warrant
Shares, unless such transfer is made pursuant to an effective registration
statement under the Securities Act, the Holder will deliver to the Company, if
so requested by the Company, an opinion of counsel reasonably satisfactory in
form and substance to the Company, to the effect that the Warrants or Warrant
Shares, as applicable, may be sold or otherwise transferred without registration
under the Securities Act. Subject to the preceding sentence, the Holder of this
Warrant shall be entitled, without obtaining the consent of the Company, to
assign and transfer this Warrant, at any time in whole or from time to time in
part, to any Person or Persons. Subject to the foregoing, upon surrender of this
Warrant to the Company, together with the attached Warrant Assignment Form duly
executed, the Company shall, without charge, execute and deliver a new Warrant
in the name of the assignee or assignees named in such instrument of assignment
and, if the Holder's entire interest is not being assigned, in the name of the
Holder, and this Warrant shall promptly be cancelled.
LOSS OR DESTRUCTION OF WARRANT CERTIFICATE. Upon receipt
by the Company of evidence satisfactory to it (in the exercise of is reasonable
discretion) of the loss, theft, destruction or mutilation of this Warrant
Certificate, and (if requested by the Company in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon surrender and
cancellation of this Warrant Certificate, if mutilated, the Company shall
execute and deliver a new Warrant Certificate of like tenor and date
representing the right to purchase an equivalent number of Warrant Shares.
7
ANTI-DILUTION PROVISIONS.
In case the Company shall at any time after the date hereof
(i) declare a dividend or make a distribution on Common Stock payable in Common
Stock or other shares of the Company's capital stock, (ii) subdivide, split or
reclassify the outstanding Common Stock into a larger number of shares, (iii)
combine or reclassify the outstanding Common Stock into a smaller number of
shares, or (iv) issue any shares of its capital stock in a reclassification of
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
then in each such case the Warrant Share Amount shall be adjusted to equal the
number of shares to which the holder of this Warrant would have been entitled
upon the occurrence of such event if this Warrant had been exercised immediately
prior to such time. Such adjustment shall be made successively whenever any
event listed above shall occur.
In case the Company shall fix a record date for the making of
a distribution to holders of Common Stock (including any such distribution made
in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness, assets or other property
(excluding cash dividends, other cash distributions from current or retained
earnings or dividends payable in Common Stock for which an adjustment has been
made pursuant to Section 10.A), the Warrant Share Amount to be in effect after
such record date shall be determined by multiplying the Warrant Share Amount in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the Current Market Price Per Common Share, and the denominator of
which shall be such Current Market Price Per Common Share on such record date,
less the fair market value (determined by the Board of Directors of the Company;
provided that if the Holder shall object to any such determination, the Board of
Directors shall retain an independent appraiser reasonably satisfactory to the
Holder to determine such fair marker value) of the portion of the assets, other
property or evidence of indebtedness so to be distributed which is applicable to
one share of Common Stock. Such adjustments shall be made successively whenever
such a record date is fixed; and in the event that such distribution is not so
made, the Warrant Share Amount shall again be adjusted to be the Warrant Share
Amount which would then be in effect if such record date had not been fixed.
8
If as a result of any event or for any other reason, any
adjustment is made which increases the number of shares of Common Stock issuable
upon conversion, exercise or exchange of, or in the conversion or exercise price
or exchange ratio applicable to, any outstanding securities of the Company that
are convertible into, or exercisable or exchangeable for, Common Stock of the
Company, including, without limitation, any action taken in connection with the
warrants dated as of March 31, 1998 issued in connection with the offering by
the Company and AMSC Acquisition Company, Inc. ("AMSC Acquisition") of units
consisting of 12 1/4% Senior Notes due 2008 of AMSC Acquisition and warrants to
purchase Common Stock, then a corresponding adjustment shall be made hereunder
to increase the Warrant Share Amount, but only to the extent that no such
adjustment has been made pursuant to Sections 10.A or B hereof with respect to
such event or for such other reason.
For the purpose of any computation under Section 10.B hereof,
on any determination date the "Current Market Price Per Common Share" shall be
deemed to be the average (weighted by daily trading volume) of the Closing
Prices (as defined below) per share of Common Stock for the 20 consecutive
trading days immediately prior to such date. "Closing Price" means (1) if shares
of Common Stock then are listed and traded on the New York Stock Exchange, Inc.
("NYSE"), the closing price on such day as reported on the NYSE Composite
Transactions Tape; (2) if shares of Common Stock then are not listed and traded
on the NYSE, the closing price on such day as reported by the principal national
securities exchange on which the shares are listed and traded; (3) if shares of
Common Stock then are not listed and traded on any such securities exchange, the
last reported sale price on such day on the National Market of the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ");
or (4) if shares of Common Stock then are not traded on the NASDAQ National
Market, the average of the highest reported bid and lowest reported asked price
on such day as reported by NASDAQ. If on any determination date shares of Common
Stock are not quoted by any such organization, the Current Market Price Per
Common Share shall be the fair market value of such shares on such determination
date as reasonably determined by the Board of Directors. If the Holder shall
object to any determination by the Board of Directors of the Current Market
Price Per Common Share, the Current Market Price Per Common Share shall be the
fair market value per share of Common Stock as determined by an independent
appraiser retained by the Company at its expense and reasonably acceptable to
the Holder. For purposes of any computation under this Section 10, the number of
shares of Common Stock outstanding at any given time shall not include shares
owned or held by or for the account of the Company
9
Upon each adjustment of the Warrant Share Amount pursuant to
this Section 10, the Exercise Price Applicable to each Warrant outstanding prior
to the making of the adjustment in the Warrant Share Amount shall thereafter be
adjusted to reflect an adjusted Exercise Price (calculated to the nearest tenth
of a cent) obtained from the following formula:
E(1) = E x W
-
W(1)
Where:
E(1) = the adjusted Exercise Price per share following the
adjustment of the Warrant Share Amount.
E = the Exercise Price prior to adjustment.
W(1) = the adjusted Warrant Share Amount.
W = the Warrant Share Amount prior to adjustment.
No adjustment in the Warrant Share Amount or the Exercise
Price shall be required unless such adjustment would require an increase or
decrease of at least one percent of such amount; provided that any adjustments
which by reason of this Section 10.F are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section l0 shall be made to the nearest one tenth of a
cent of a share, as the case may be.
In the event that, at any time as a result of the provisions
of this Section 10, the holder of this Warrant upon subsequent exercise shall
become entitled to receive any shares of capital stock of the Company other than
Common Stock, the number of such other shares so receivable upon exercise of
this Warrant shall thereafter be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions
contained herein.
Upon any adjustment pursuant to this Section 10, the Company
shall promptly thereafter (i) cause to be filed with the Company a certificate
of an officer of the Company serving forth the Warrant Share Amount and Exercise
Price after such adjustment and setting forth in reasonable detail the method of
calculation and the facts upon which such calculations are based, and (ii) cause
to be given to each registered Holder of this Warrant
10
Certificate at the address as set forth in Section 12 written notice of such
adjustments. Where appropriate, such notice may be given in advance and included
as a part of the notice required to be delivered pursuant to Section 13.B.
REORGANIZATION, CONSOLIDATION, MERGER, OR SALE OF ASSETS. In case of
any reclassification, redesignation, reorganization or recapitalization by the
Company (other than as set forth in Section 10) or consolidation of the Company
with, or merger of the Company into, any other Person, any merger of another
Person into the Company (other than a merger which does nor result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock) or any sale or transfer of all or substantially all of the assets
of the Company or of the Person formed by such consolidation or resulting from
such merger or which acquires such assets, as the case may be, the Holder shall
have the right thereafter to exercise this Warrant for the kind and amount of
securities, cash and other property receivable upon such reclassification.
redesignation, reorganization, recapitalization, consolidation, merger, sale or
transfer by a holder of the number of shares of Common Stock for which this
Warrant may have been exercised in full immediately prior to such
reclassification, redesignation, reorganization, recapitalization,
consolidation, merger, sale or transfer, assuming (i) such holder of Common
Stock is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent Person"), or an Affiliate of
a constituent Person and (ii) in the case of a consolidation, merger, sale or
transfer which includes an election as to the consideration to be received by
the holders, such holder of Common Stock failed to exercise its rights of
election, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer (provided that if
the kind or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer is not the same for each share of Common
Stock held immediately prior to such consolidation, merger, sale or transfer by
other than a constituent Person or an Affiliate thereof and in respect of which
such rights of election shall not have been exercised ("non-electing share"),
then for the purpose of this Section 11 the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, sale or transfer
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Adjustments for
events subsequent to the effective date of such reclassification, redesignation,
reorganization, recapitalization, consolidation, merger and sale of assets shall
be as nearly equivalent as may be practicable to the adjustments provided for in
this Warrant. In any such event, effective provisions shall be made in the
certificate or articles of incorporation of the resulting or surviving
corporation, in any contract of sale, conveyance, lease or transfer,
11
or otherwise so that the provisions set forth herein for the protection of the
rights of the Holder shall thereafter continue to be applicable; and any such
resulting or surviving corporation shall expressly assume the obligation to
deliver, upon exercise, such shares of stock, other securities, cash and
property. The provisions of this Section 11 shall similarly apply to successive
consolidations; mergers, sales, leases or transfers.
NOTICES. Any notice, demand or delivery authorized or required by
this Warrant Certificate shall be in writing and shall be given to the Holder or
the Company, as the case may be, at its address (or facsimile number) set forth
below, or such other address (or facsimile number) as shall have been furnished
to the party giving or making such notice, demand or delivery:
If to the Company: American Mobile Satellite Corporation
00000 Xxxxxxxxx Xxxx.
Reston, VA 22091
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx, General Counsel
If to the Holder: Singapore Telecommunications Ltd.
00, Xxxxxx Xxxx, Xxxxxxxxx, #00-00
Xxxxxxxxx, 000000
Xxxxxxxx of Singapore
Facsimile No. (00) 000-0000/(00) 000-0000
Attention: Xx. Xx Xxxx Hong
Each such notice. demand or delivery shall be effective (i) if given
by facsimile, when such facsimile is transmitted to the facsimile number
specified herein and the intended recipient confirms the receipt of such
facsimile or (ii) if given by any other means, when received at the address
specified herein.
NOTICES TO WARRANT HOLDERS.
The Company shall provide to each Holder, at its address and
in the manner set forth in Section 12, a notice of expiration of this Warrant
not less than 90 nor more than 120 days prior to the Expiration Date.
12
In the event:
the Company shall authorize the issuance to holders of
shares of Common Stock of rights, options or warrants to subscribe
for or purchase shares of Common Stock or of any other subscription
rights or warrants; or
the Company shall authorize the distribution to holders
of shares of Common Stock of assets, including cash, evidences of
its indebtedness, or other securities; or
of any reorganization, consolidation or merger to which
the Company is a party and for which approval of any shareholders
of the Company is required, or of the conveyance or transfer of the
properties and assets of the Company substantially as an entirety,
or of any reclassification or change of Common Stock issuable upon
exercise of the Warrants, or a tender offer or exchange offer for
shares of Common Stock; or
of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
the Company proposes to take any action that would
require an adjustment to the Warrant Share Amount or the Exercise
Price pursuant to Section 10 hereof;
then the Company shall cause to be given to each registered Holder of this
Warrant Certificate, at least 20 days prior to the applicable record date
hereinafter specified, or 20 days prior to the date of the event in the case of
events for which there is no record date a written notice stating (i) the date
as of which the holders of record of shares of Common Stock entitled to receive
any such rights, options, warrants or distribution are to be determined, or (ii)
the initial expiration date set forth in any tender offer or exchange offer for
shares of Common Stock or (iii) the date on which any such reorganization,
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up is expected to become effective or consummated, and
the date as of which it is expected that holders of record of shares of Common
Stock shall be entitled to exchange such shares for securities or other
property, if any, deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up. The failure to give the notice required by this Section 13.B or any defect
therein shall not affect the legality or validity of any distribution, right,
option, warrant,
13
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up, or the vote upon any action.
RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant, the
Holder shall not, by virtue hereof, be entitled to any rights of a stockholder
of the Company, including, without limitation, the right to vote, to receive
dividends or other distributions, to exercise any preemptive right or to receive
any notice of meetings of stockholders or any notice of any proceedings of the
Company except as may be specifically provided for herein. Nothing contained
herein shall impose any obligation on the Holder to purchase any securities or
impose any liabilities on such Holder as a stockholder of the Company, whether
such obligation or liabilities are asserted by the Company or by creditors of
the Company.
REGISTRATION RIGHTS. The Holder of this Warrant is entitled to
certain registration rights with respect to the Warrant Shares issuable upon the
exercise thereof. Said registration rights are set forth in an Amended and
Restated Registration Rights Agreement dated as of March 31, 1998, by and among
the Company and certain holders of warrants of the Company named therein (the
"Registration Rights Agreement"). By acceptance of this Warrant Certificate, the
Holder hereof agrees that upon exercise of this Warrant, in whole or in part,
such Holder will be bound by the Registration Rights Agreement as a holder of
Registrable Securities thereunder. The Company agrees that upon transfer of this
Warrant, in whole or in part, pursuant to Section 8 hereof, the transferee shall
be entitled to become a party to the Registration Rights Agreement if not
already a party thereto. A copy of the Registration Rights Agreement may be
obtained by the Holder hereof upon written request to the Company.
GOVERNING LAW AND WAIVER OF JURY TRIAL. THIS WARRANT CERTIFICATE AND
ALL RIGHTS ARISING HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND THE PERFORMANCE THEREOF
SHALL BE GOVERNED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS. THE PARTIES HERETO
IRREVOCABLY WAIVE ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
AMENDMENTS; WAIVERS. Any provision of this Warrant Certificate may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Holder and the Company, or in the
case of a waiver thereof, by the party against whom the waiver is to be
effective. No failure or delay by either party in exercising any right, power or
privilege hereunder shall operate as a waiver nor shall any single
14
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
COUNTERPARTS This Warrant Certificate may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
(signature page follows)
15
IN WITNESS WHEREOF, the Company has duly caused this Warrant
Certificate to be signed by its duly authorized officer and to be dated as of
March 31, 1998.
AMERICAN MOBILE SATELLITE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Assistant Treasurer
16
WARRANT EXERCISE NOTICE
(To be delivered prior to exercise of the Warrant
by execution of the Warrant Exercise Subscription Form)
To: American Mobile Satellite Corporation
00000 Xxxxxxxxx Xxxx.
Reston, VA 22091
The undersigned hereby notifies you of its intention to exercise the
Warrant to purchase shares of Common Stock, par value $.01 per share, of
American Mobile Satellite Corporation. The undersigned intends to exercise the
Warrant to purchase ______ shares (the "Shares") [at $______ per Share (the
"Exercise Price")] [pursuant to the net exercise provisions of Section 2.B of
the Warrant]. [The undersigned intends to pay the aggregate Exercise Price for
the Shares in cash, certified or official bank or bank cashier's check or by
wire transfer of immediately available funds to an account to designated by the
Company or by cancellation of indebtedness owed to the Holder (or a combination
of such methods) as indicated below.]
The undersigned hereby certifies that to the best of its knowledge
its Alien Ownership Percentage as of the date is _____________________.
Date:________________________
-------------------------------------------------
(Signature of Owner)
-------------------------------------------------
(Street Address)
-------------------------------------------------
(City) (State) (Zip Code)
17
Payment: $__________________ cash
$ _________________ check
$ _________________ wire transfer
$ _________________ cancellation of indebtedness
[Wire Transfer Instructions, if required pursuant to Section 3 or 4 of the
Warrant:____________
-----------------------------------------------------------------------------]
18
WARRANT EXERCISE SUBSCRIPTION NOTICE
(To be executed only upon exercise of the Warrant)
To: American Mobile Satellite Corporation
00000 Xxxxxxxxx Xxxx.
Reston, VA 22091
The undersigned irrevocably exercises the Warrant for the purchase
of ________ shares (the "Shares") of Common Stock, par value $.01 per share, of
American Mobile Satellite Corporation (the "Company") at $______ per Share (the
"Exercise Price") and herewith makes payment of $_______________ (such payment
being made in cash or by certified or official bank or bank cashier's check
payable to the order of the Company or by wire transfer or by cancellation of
indebtedness owed to the Holder or any combination of such methods) (unless the
undersigned Holder is exercising the Warrant pursuant to the net exercise
provisions of Section 2.B of the Warrant), all on the terms and conditions
specified in the within Warrant Certificate, surrenders this Warrant Certificate
and all right, title and interest therein to the Company and directs that the
Shares deliverable upon the exercise of this Warrant be registered or placed in
the name and at the address specified below and delivered thereto. If said
number of Shares is less than all of the shares of Common Stock for which the
Warrant is exercisable, the undersigned requests that a new Warrant Certificate
representing the remaining balance of such shares be registered in the name of
the undersigned or nominee hereinafter set forth, and further that such
certificate be delivered to
19
the undersigned at the address hereinafter set forth or to such other person or
entity as hereinafter set forth.
Date: ___________________________
----------------------------------
(Signature of Owner)
----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
20
Securities and/or check to be issued to:
Please insert social security or identifying
number:_____________________________________
Name:________________________________________________________________________
Street Address:_________________________________________________________________
City, State and Zip
Code:_________________________________________________________
Any unexercised portion of the Warrant evidenced by the within Warrant
Certificate to be issued to:
Please insert social security or identifying number:
------------------------------------
Name:________________________________________________________________________
Street Address:
-----------------------------------------------------------------
City, State and Zip
Code:_________________________________________________________
21
