Exhibit 10.30B
The security represented by this certificate was originally
issued on January 23, 1998, and has not been registered under
the Securities Act of 1933, as amended. The transfer of such
security is subject to the conditions specified in the Amended
and Restated Senior Secured Note and Warrant Purchase Agreement,
dated as of January 23, 1998 (as amended and modified from
time to time), between the issuer hereof (the "COMPANY"), Radio
Movil Digital Americas, Inc., the initial holder hereof and
certain other investors from time to time a party thereto, and
the Company reserves the right to refuse the transfer of such
security until such conditions have been fulfilled with respect
to such transfer. Upon written request, a copy of such
agreement shall be furnished by the Company to the holder hereof
without charge.
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC.
STOCK PURCHASE WARRANT
Date of Issuance: January 23, 1998 Certificate No. W-RMD1
FOR VALUE RECEIVED, International Wireless Communications Holdings,
Inc., a Delaware corporation (the "COMPANY"), hereby grants to BT Foreign
Investment Corporation, a Delaware corporation (the "PURCHASER"), or its
assigns (the Purchaser and/or any Person or Persons to whom the Purchaser or
an assignee has assigned this Warrant pursuant to Section 8 hereof is
referred to as the "HOLDER") the right to purchase from the Company at any
time during the Exercise Period (as defined below) the number of shares of
each class of Warrant Stock that represents the Cumulative Warrant Percentage
of such Class of Warrant Stock Deemed Outstanding as of close of business on
the Date of Issuance at a price per share of $0.01 (the "EXERCISE PRICE").
This Warrant is one of several warrants (collectively, the "WARRANTS") issued
pursuant to the terms of the Amended and Restated Senior Secured Note and
Warrant Purchase Agreement, dated as of January 23, 1998 (the "PURCHASE
AGREEMENT"), among the Company, Radio Movil Digital Americas, Inc. and
certain investors from time to time a party thereto. Certain capitalized
terms used herein are defined in Section 5 hereof. Other capitalized terms
used in this Warrant but not defined herein shall have the meanings set forth
in the Purchase Agreement.
The amount and kind of securities obtainable pursuant to the rights
granted hereunder and the purchase price for such securities are subject to
adjustment pursuant to the provisions contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1. EXERCISE OF WARRANT.
1A. EXERCISE PERIOD. The Holder may exercise, in whole or in part,
the purchase rights represented by this Warrant at any time and from time to
time after the Date of Issuance (the "EARLIEST EXERCISE DATE") to and
including the later of (i) the tenth anniversary of the Earliest Exercise
Date and (ii) the date on which all principal, interest, premiums (if any)
and other Obligations due in respect of the Notes has been paid in full (the
"EXERCISE PERIOD"). The Company shall give the Holder written notice of the
expiration of the Exercise Period at least 10 days but not more than 30 days
prior to the end of the Exercise Period.
1B. EXERCISE PROCEDURE.
(i) This Warrant shall be deemed to have been exercised when the
Company has received all of the following items (the "EXERCISE TIME"):
(a) a completed Exercise Agreement, as described in Section 1C
below, executed by the Person exercising all or part of the purchase rights
represented by this Warrant;
(b) this Warrant;
(c) if this Warrant is not registered in the name of the Purchaser,
an Assignment or Assignments in the form set forth in EXHIBIT II hereto
evidencing the assignment of this Warrant to the Holder, in which case the
Holder shall have complied with the provisions set forth in Section 8
hereof; and
(d) either (1) a check payable to the Company in an amount equal to
the product of the Exercise Price multiplied by the number of shares of
Warrant Stock being purchased upon such exercise (the "AGGREGATE EXERCISE
PRICE") or (2) a written notice to the Company that the Holder is exercising
the Warrant (or a portion thereof) by authorizing the Company to withhold
from issuance a number of shares of Warrant Stock issuable upon such
exercise of the Warrant which when multiplied by the Market Price of the
Warrant Stock is equal to the Aggregate Exercise Price (and such withheld
shares shall no longer be issuable under this Warrant).
(ii) Certificates for shares of Warrant Stock purchased upon
exercise of this Warrant shall be delivered by the Company to the Holder
within ten business days after the date of the Exercise Time. Unless this
Warrant has expired or all of the purchase rights represented hereby have
been exercised, the Company shall prepare a new Warrant, substantially
identical hereto, representing the rights formerly represented by this
Warrant which have not expired or been exercised and shall, within such
ten-day period, deliver such new Warrant to the Person designated for
delivery in the Exercise Agreement.
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(iii) The Warrant Stock issuable upon the exercise of this Warrant
shall be deemed to have been issued to the Holder at the Exercise Time, and
the Holder shall be deemed for all purposes to have become the record holder
of such Warrant Stock at the Exercise Time.
(iv) The issuance of certificates for shares of Warrant Stock upon
exercise of this Warrant shall be made without charge to the Holder for any
issuance tax in respect thereof or other cost incurred by the Company in
connection with such exercise and the related issuance of shares of Warrant
Stock. Each share of Warrant Stock issuable upon exercise of this Warrant
shall, upon payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all taxes and Liens (except for Liens created
pursuant to the Investor Rights Agreement).
(v) The Company shall not close its books against the transfer of
this Warrant or of any share of Warrant Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. The Company shall from time to time take all such
action as may be necessary to assure that the par value per share of the
unissued Warrant Stock acquirable upon exercise of this Warrant is at all
times equal to or less than the Exercise Price then in effect.
(vi) The Company shall assist and cooperate with any Holder
required to make any governmental filings or obtain any governmental
approvals prior to or in connection with any exercise of this Warrant
(including, without limitation, making any filings required to be made by the
Company).
(vii) Notwithstanding any other provision hereof, if an exercise of
any portion of this Warrant is to be made in connection with a registered
public offering or the sale of the Company, the exercise of any portion of
this Warrant may, at the election of the holder hereof, be conditioned upon
the consummation of the public offering or the sale of the Company in which
case such exercise shall not be deemed to be effective until the consummation
of such transaction.
(viii) The Company shall at all times reserve and keep available out
of its authorized but unissued shares of Warrant Stock solely for the purpose
of issuance upon the exercise of the Warrants, such number of shares of
Warrant Stock issuable upon the exercise of all outstanding Warrants. The
Company shall take all such actions as may be necessary to assure that all
such shares of Warrant Stock may be so issued without violation of any
applicable law or governmental regulation or any requirements of any domestic
securities exchange upon which shares of Warrant Stock may be listed (except
for official notice of issuance which shall be immediately delivered by the
Company upon each such issuance). The Company shall not take any action
which would cause the number of authorized but unissued shares of Warrant
Stock to be less than the number of such shares required to be reserved
hereunder for issuance upon exercise of the Warrant.
(ix) If the shares of Warrant Stock issuable by reason of exercise
of this Warrant are convertible into or exchangeable for any other stock or
securities of the Company, the Company shall, at the exercising holder's
option and upon surrender of this Warrant by such
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holder as provided above together with any notice, statement or payment
required to effect such conversion or exchange of Warrant Stock, deliver to
such holder (or as otherwise specified by such holder) a certificate or
certificates representing the stock or securities into which the shares of
Warrant Stock issuable by reason of such conversion are convertible or
exchangeable, registered in such name or names and in such denomination or
denominations as such holder has specified.
1C. EXERCISE AGREEMENT. Upon any exercise of this Warrant, the
Exercise Agreement shall be substantially in the form set forth in EXHIBIT I
hereto, except that if the shares of Warrant Stock are not to be issued in
the name of the Person in whose name this Warrant is registered, the Exercise
Agreement shall also state the name of the Person to whom the certificates
for the shares of Warrant Stock are to be issued, and if the number of shares
of Warrant Stock to be issued does not include all the shares of Warrant
Stock purchasable hereunder, it shall also state the name of the Person to
whom a new Warrant for the unexercised portion of the rights hereunder is to
be delivered. Such Exercise Agreement shall be dated the actual date of
execution thereof.
Section 2. ORGANIC CHANGE; NOTICES
2A. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets or other
transaction, which in each case is effected in such a way that the holders of
capital stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
capital stock is referred to herein as "ORGANIC CHANGE." Prior to the
consummation of any Organic Change, the Company shall make appropriate
provision (in form and substance satisfactory to the Majority Warrant
Holders) to insure that each of the Holders of the Warrants shall thereafter
have the right to acquire and receive, in lieu of or addition to (as the case
may be) the shares of Warrant Stock immediately theretofore acquirable and
receivable upon the exercise of such holder's Warrant, such shares of stock,
securities or assets as may be issued or payable with respect to or in
exchange for the number of shares of Underlying Warrant Stock and (if would
yield more to the Holders) Ultimate Warrant Stock immediately theretofore
acquirable and receivable upon exercise of such holder's Warrant had such
Organic Change not taken place. In any such case, the Company shall make
appropriate provision (in form and substance satisfactory to the Majority
Warrant Holders which shall not be unreasonably withheld) with respect to
such holders' rights and interests to insure that the provisions of this
Sections 2 and 3 hereof shall thereafter be applicable to the Warrants. The
Company shall not effect any such consolidation, merger or sale, unless prior
to the consummation thereof, the successor entity (if other than the Company)
resulting from consolidation or merger or the entity purchasing such assets
assumes by written instrument (in form and substance satisfactory to the
Majority Warrant Holders which shall not be unreasonably withheld), the
obligation to deliver to each such holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such holder may be
entitled to acquire provided the aggregate purchase price shall remain the
same.
2B. NO AVOIDANCE. In the event the Company shall enter into any
transaction
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for the purpose of avoiding the provisions of this Section 2, the benefits
provided by such provision shall nevertheless apply and be preserved.
2C. NOTICES.
(i) The Company shall give written notice to the Holder at least
20 days prior to the date on which the Company closes its books or takes a
record (a) with respect to any dividend or distribution upon the any of its
capital stock, (b) with respect to any pro rata subscription offer to holders
of any of its capital stock or (c) for determining rights to vote with
respect to any Organic Change, dissolution or liquidation.
(ii) The Company shall also give written notice to the Holders at
least 20 days prior to the date on which any Organic Change, dissolution or
liquidation shall take place.
Section 3. SUBDIVISION OR COMBINATION OF WARRANT STOCK. If the
Company at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares
of Warrant Stock into a greater number of shares, the Exercise Price in
effect immediately prior to such subdivision shall be proportionately reduced
and the number of shares of Warrant Stock obtainable upon exercise of this
Warrant shall be proportionately increased. If the Company at any time
combines (by reverse stock split or otherwise) one or more classes of its
outstanding shares of Warrant Stock into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination shall be
proportionately increased and the number of shares of Warrant Stock
obtainable upon exercise of this Warrant shall be proportionately decreased.
The Company shall promptly notify the Holder of any adjustment pursuant to
this Section 3.
Section 4. NO FRACTIONAL SHARE OR SCRIP. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of
this Warrant, but in lieu of such fractional shares the Company shall make a
cash payment therefor on the basis of the Market Price of one share of
Warrant Stock of the type in question.
Section 5. DEFINITIONS. The following terms have meanings set
forth below:
"BHC ACT" means the Bank Holding Company Act of 1956, as amended, or
any similar or successor federal statute, and the rules and regulations
promulgated thereunder, all as the same shall be in effect from time to time.
"CUMULATIVE WARRANT PERCENTAGE" means .5%, as adjusted pursuant to
Section 15 hereof.
"CONVERTIBLE SECURITIES" means any stock or securities (directly or
indirectly) convertible into or exchangeable for capital stock of Holdings.
"MAJORITY WARRANT HOLDERS" means (a) with respect to Section 2
hereof, holders (including BTFIC and its Affiliates, to the extent any such
entity is a holder) representing the
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right to purchase a majority of the shares of Warrant Stock obtainable upon
exercise of all Warrants then outstanding, and (b) in all other respects,
holders (including BTFIC and its Affiliates, to the extent any such entity
is a holder) representing in the aggregate more than 50% of all Underlying
Warrant Stock (assuming, for purposes of this determination, that any holder
of Underlying Warrant Stock that now holds Ultimate Warrant Stock continues
to hold Underlying Warrant Stock). For purposes hereof, neither the Company
nor any Affiliate thereof shall be considered a "holder" with respect to any
Underlying Common Stock held by them.
"MARKET PRICE" means as to any security (other than the Warrants)
the average of the closing prices of such security's sales on all domestic
securities exchanges on which such security may at the time be listed or
quoted, including for this purpose, The Nasdaq Stock Market, or, if there
have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed or quoted, the average
of the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case
averaged over a period of 21 days consisting of the day as of which "MARKET
PRICE" is being determined and the 20 consecutive business days prior to such
day; provided that if such security is listed on any domestic securities
exchange the term "business days" as used in this sentence means business
days on which such exchange is open for trading. If at any time such
security is not listed on any domestic securities exchange or quoted on The
Nasdaq Stock Market or the domestic over-the-counter market, the "MARKET
PRICE" shall be the fair value thereof as determined by the Company and the
Majority Warrant Holders; provided that if such parties are unable to reach
agreement within a reasonable period of time, such fair value shall be
determined by an appraiser jointly selected by the Company and the Majority
Warrant Holders. The determination of such appraiser shall be final and
binding on the Company and all Holders of the Warrants and the fees and
expenses of such appraiser shall be paid by the Company. Any determination
of Market Price of a security will be made without giving effect to any
discount for any lack of liquidity attributable to a lack of a public market
for such security, any block discount or discount attributable to the size of
any Person's holdings of such security, any minority interest or any voting
rights thereof or lack thereof and shall be determined on the basis of the
value of the Company as a going concern and using the assumption that
immediately prior to such determination all "in the money" Options and
Convertible Securities were exercised, converted or exchanged. The "MARKET
PRICE" of a Warrant means the excess of (i) the Market Price of the shares of
Warrant Stock obtainable upon exercise thereof over (ii) the Aggregate
Exercise Price of the Warrant Stock payable in connection with such exercise.
For purposes of Section 1B(i)(d)(2) above, the "MARKET PRICE" of any debt
security or any preferred stock of the Company or any of its Wholly-Owned
Subsidiaries shall be deemed to be equal to the aggregate outstanding
principal amount or liquidation value thereof (as applicable) plus all
accrued and unpaid interest or dividends thereon (as applicable) plus all
premium and other amounts owing with respect thereto.
"OPTIONS" means any rights or options to subscribe for or purchase
capital stock of Holdings or Convertible Securities.
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"PUBLIC OFFERING" means a public offering of shares of Warrant Stock
of the Company registered under the Securities Act.
"ULTIMATE WARRANT STOCK" means any shares of capital stock issued or
issuable upon exercise, conversion or exchange of any shares of Underlying
Warrant Stock that consist of Convertible Securities.
"UNDERLYING WARRANT STOCK" means, as to any class of Warrant Stock,
(i) such class of Warrant Stock issued or issuable upon exercise of the
Warrants and (ii) any capital stock issued or issuable with respect to the
securities referred to in clause (i) above by way of stock dividend or stock
split or in connection with an exchange, a combination of shares,
recapitalization, merger, consolidation or other reorganization. For
purposes of the Purchase Agreement and this Warrant, any Person who holds
Warrants shall be deemed to be the holder of the Underlying Warrant Stock
obtainable upon exercise of the Warrants in connection with the transfer
thereof or otherwise regardless of any restriction or limitation on the
exercise of the Warrants, such Underlying Warrant Stock shall be deemed to be
in existence, and such Person shall be entitled to exercise the rights of a
holder of Underlying Warrant Stock hereunder and thereunder. As to any
particular shares of Underlying Warrant Stock, such shares shall cease to be
Underlying Warrant Stock when they have been (a) effectively registered under
the Securities Act and disposed of in accordance with the registration
statement covering them, (b) distributed to the public through a broker,
dealer or market maker pursuant to Rule 144 under the Securities Act (or any
similar provision then in force) or (c) repurchased by the Company or any of
its Subsidiaries.
"WARRANT STOCK" means the Company's Class 1 Common Stock, par value
$.01 per share; provided that if there is a change such that the securities
issuable upon exercise of the Warrants are issued by an entity other than the
Company or there is a change in the type or class of securities so issuable,
then the term "Warrant Stock" shall include one share of the security
issuable upon exercise of the Warrants if such security is issuable in
shares, or shall mean the smallest unit in which such security is issuable if
such security is not issuable in shares.
"WARRANT STOCK DEEMED OUTSTANDING" means, at any given time, (a)
with respect to any class of Warrant Stock that does not consist of
Convertible Securities, the number of shares of such class of Underlying
Warrant Stock outstanding at such time, plus the number of shares of any
other capital stock that is substantially identical to such Underlying
Warrant Stock except with respect to voting rights and as otherwise required
by applicable law, which in the case of the Company's Class 1 Common Stock,
shall be the Company's Class 2 Common Stock ("PARALLEL UNDERLYING WARRANT
STOCK") that is outstanding at such time, plus the maximum number of shares
of Underlying Warrant Stock and Parallel Underlying Warrant Stock that would
be outstanding at such time upon the exercise, conversion or exchange of all
Options and Convertible Securities outstanding at such time with respect to
shares of such class of Underlying Warrant Stock and Parallel Underlying
Warrant Stock, regardless of whether the Options or Convertible Securities
are actually exercisable at such time and (b) with respect to any class of
Warrant Stock that consists of Convertible Securities, the number of shares
of such class of Ultimate Warrant Stock outstanding or deemed outstanding at
such time, plus the
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number of shares of any other capital stock that is substantially identical
to such Ultimate Warrant Stock except with respect to voting rights and as
otherwise required by applicable law ("PARALLEL ULTIMATE WARRANT STOCK") that
is outstanding at such time, plus the maximum number of shares of Ultimate
Warrant Stock and Parallel Ultimate Warrant Stock that would be outstanding
upon the exercise, conversion or exchange of all Options and Convertible
Securities in existence at such time with respect to shares of such class of
Ultimate Warrant Stock and Parallel Ultimate Warrant Stock, regardless of
whether the Options or Convertible Securities are actually exercisable at
such time.
Section 6. NO VOTING RIGHTS; LIMITATIONS OF LIABILITY; TAX MATTERS.
This Warrant shall not entitle the holder hereof to any voting rights or
other rights as a stockholder of the Company. No provision hereof, in the
absence of affirmative action by the Holder to purchase Warrant Stock, and no
enumeration herein of the rights or privileges of the Holder shall give rise
to any liability of such holder for the Exercise Price of Warrant Stock
acquirable by exercise hereof or as a stockholder of the Company. If the
Holder incurs any tax liability as a result of being treated as a stockholder
of the Company prior to exercise of this Warrant, the Company will
immediately make payment to the Holder equal to the amount of such tax
liability together with any other costs (including, without limitation,
interest and penalties) associated therewith.
Section 7. WARRANT TRANSFERABLE. Subject to the transfer
conditions referred to in the legend endorsed hereon and the Purchase
Agreement, this Warrant and all rights hereunder are transferable, in whole
or in part, without charge to the Holder, upon surrender of this Warrant with
a properly executed Assignment (in the form of EXHIBIT II hereto) at the
principal office of the Company.
Section 8. WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each of such new Warrants
shall represent such portion of such rights as is designated by the Holder at
the time of such surrender. The date the Company initially issues this
Warrant shall be deemed to be the "DATE OF ISSUANCE" hereof regardless of the
number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant shall be issued. All Warrants
representing portions of the rights hereunder are referred to herein as the
"WARRANTS."
Section 9. REPLACEMENT. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation
of any certificate evidencing this Warrant, and in the case of any such loss,
theft or destruction, upon receipt of indemnity reasonably satisfactory to
the Company (provided that if the holder is a financial institution or other
institutional investor or an Affiliate thereof its own agreement shall be
satisfactory), or, in the case of any such mutilation upon surrender of such
certificate, the Company shall (at its expense) execute and deliver, in lieu
thereof, a new certificate of like kind representing the same rights
represented by such lost, stolen, destroyed or mutilated certificate and
dated the date of such lost, stolen, destroyed or mutilated certificate.
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Section 10. NOTICES. Except as otherwise expressly provided
herein, all notices referred to in this Warrant shall be in writing and shall
be delivered personally, sent by reputable overnight courier service (charges
prepaid) or sent by registered or certified mail, return receipt requested,
postage prepaid and shall be deemed to have been given when so delivered,
sent or deposited in the U.S. Mail (i) to the Company, at its principal
executive offices and (ii) to the Holder of this Warrant, at such holder's
address as it appears in the records of the Company (unless otherwise
indicated by any such holder).
Section 11. AMENDMENT AND WAIVER. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required
to be performed by it, only if the Company has obtained the written consent
of the Majority Warrant Holders; provided that no such action may change the
Exercise Price of this Warrant or the number of shares or class of stock
obtainable upon exercise of this Warrant without the written consent of the
Holder of this Warrant.
Section 12. GOVERNING LAW. THE CORPORATE LAWS OF THE STATE OF
DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE
COMPANY AND ITS STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL
BE GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF
THE STATE OF NEW YORK OR ANY OTHER JURISDICTIONS) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTIONS OTHER THAN THE STATE OF NEW
YORK. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS WARRANT EVEN
THOUGH UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS,
THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD NORMALLY APPLY.
Section 13. BHC ACT LIMITATIONS. If any Holder is prevented by the
BHC Act from receiving any payment, dividend, distribution or other
consideration that the Company is required or permitted to make such Holder
under any provision of this Warrant, then, notwithstanding anything to the
contrary contained or implied herein, the Company shall (unless the
applicable provision of this Warrant provides an alternative to such payment,
dividend, distribution or other consideration at the Company's option and the
Company elects such alternative) structure the transaction described in such
Section so that such Holder receives substantially equivalent consideration
that is in a form not prohibited by the BHC Act (as determined in good faith
by the Board of Directors and such Holders).
Section 14. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In
connection with the issuance of this Warrant, the Company hereby represents
and represents that the representations and warranties contained in Sections
6.1, 6.2, 6.3, 6.4 (as such representation and warranties relates to the
Purchase Agreement, as it pertains to Holdings, the Certificate of
Incorporation, the Warrants, and the fulfillment and compliance with
Holdings' obligations contained in the Purchase Agreement and the Warrants,
including the offering, sale and issuance of the Warrant and the issuance of
capital stock upon the direct or indirect exercise of the
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Warrants only), 6.9 and the first two sentences of Section 6.10.
Section 15. REGISTRATION RIGHTS; RELATED MATTERS. Within 45 days
after the Date of Issuance hereof, the Company shall cause the Investor
Rights Agreement to be amended in the form of Annex A attached hereto. If
the Company fails to so amend the Investor Rights Agreement within such
45-day period, the Cumulative Warrant Percentage shall be 50% higher than the
percentage it would otherwise be without giving effect to this paragraph and
shall increase by an additional 25% at the end of each 45-day period
thereafter, if at the end of such period, this Section 15 has not been fully
complied with.
* * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and to
be dated the Date of Issuance hereof.
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By
Its
[CORPORATE SEAL]
Attest:
____________________________
Secretary
STATE OF CALIFORNIA )
COUNTY )
I, the undersigned authority, a Notary public in and for said County and
State, hereby certify that _______________________, whose name as of
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC. a Delaware corporation,
is signed to the foregoing instrument, and who is known to me, acknowledge
before me on this day that, being informed of the contents of the instrument,
he/she, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and official seal this _____ day of January, 1998
Notary Public
Commission Expires:______________________
EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W-____), hereby agrees to subscribe for the
purchase of ______ shares of the Warrant Stock covered by such Warrant and
makes payment herewith in full therefor at the price per share provided by
such Warrant.
Signature ____________________
Address ______________________
E-1
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, _________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. W-_____) with respect to the number of shares of the
Warrant Stock covered thereby set forth below, unto:
NAMES OF ASSIGNEE ADDRESS NO. OF SHARES
Dated: Signature _______________________
_______________________
Witness _______________________
E-2
The security represented by this certificate was originally issued
on January 23, 1998, and has not been registered under the
Securities Act of 1933, as amended. The transfer of such security
is subject to the conditions specified in the Amended and Restated
Senior Secured Note and Warrant Purchase Agreement, dated as of
January 23, 1998 (as amended and modified from time to time),
between the issuer hereof (the "COMPANY"), Radio Movil Digital
Americas, Inc., the initial holder hereof and certain other
investors from time to time a party thereto, and the Company
reserves the right to refuse the transfer of such security until
such conditions have been fulfilled with respect to such transfer.
Upon written request, a copy of such agreement shall be furnished
by the Company to the holder hereof without charge.
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC.
STOCK PURCHASE WARRANT
Date of Issuance: January 23, 1998 Certificate No. W-RMD2
FOR VALUE RECEIVED, International Wireless Communications Holdings,
Inc., a Delaware corporation (the "COMPANY"), hereby grants to BT Foreign
Investment Corporation, a Delaware corporation (the "PURCHASER"), or its
assigns (the Purchaser and/or any Person or Persons to whom the Purchaser or
an assignee has assigned this Warrant pursuant to Section 8 hereof is
referred to as the "HOLDER") the right to purchase from the Company at any
time during the Exercise Period (as defined below) the number of shares of
each class of Warrant Stock that represents the Cumulative Warrant Percentage
of such Class of Warrant Stock Deemed Outstanding as of the close of business
on the Date of Issuance at a price per share of $0.01 (the "EXERCISE PRICE").
This Warrant is one of several warrants (collectively, the "WARRANTS")
issued pursuant to the terms of the Amended and Restated Senior Secured Note
and Warrant Purchase Agreement, dated as of January 23, 1998 (the "PURCHASE
AGREEMENT"), among the Company, Radio Movil Digital Americas, Inc. and
certain investors from time to time a party thereto. Certain capitalized
terms used herein are defined in Section 5 hereof. Other capitalized terms
used in this Warrant but not defined herein shall have the meanings set forth
in the Purchase Agreement.
The amount and kind of securities obtainable pursuant to the rights
granted hereunder and the purchase price for such securities are subject to
adjustment pursuant to the provisions contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1. EXERCISE OF WARRANT.
1A. EXERCISE PERIOD. The Holder may exercise, in whole or in
part, the purchase rights represented by this Warrant at any time and from
time to time after the Date of Issuance (the "EARLIEST EXERCISE DATE") to and
including the later of (i) the tenth anniversary of the Earliest Exercise
Date and (ii) the date on which all principal, interest, premiums (if any)
and other Obligations due in respect of the Notes has been paid in full (the
"EXERCISE PERIOD"). The Company shall give the Holder written notice of the
expiration of the Exercise Period at least 10 days but not more than 30 days
prior to the end of the Exercise Period.
1B. EXERCISE PROCEDURE.
(i) This Warrant shall be deemed to have been exercised when the
Company has received all of the following items (the "EXERCISE TIME"):
(a) a completed Exercise Agreement, as described in Section 1C
below, executed by the Person exercising all or part of the purchase rights
represented by this Warrant;
(b) this Warrant;
(c) if this Warrant is not registered in the name of the
Purchaser, an Assignment or Assignments in the form set forth in EXHIBIT II
hereto evidencing the assignment of this Warrant to the Holder, in which case
the Holder shall have complied with the provisions set forth in Section 8
hereof; and
(d) either (1) a check payable to the Company in an amount equal
to the product of the Exercise Price multiplied by the number of shares of
Warrant Stock being purchased upon such exercise (the "AGGREGATE EXERCISE
PRICE") or (2) a written notice to the Company that the Holder is exercising
the Warrant (or a portion thereof) by authorizing the Company to withhold
from issuance a number of shares of Warrant Stock issuable upon such exercise
of the Warrant which when multiplied by the Market Price of the Warrant Stock
is equal to the Aggregate Exercise Price (and such withheld shares shall no
longer be issuable under this Warrant).
(ii) Certificates for shares of Warrant Stock purchased upon
exercise of this Warrant shall be delivered by the Company to the Holder
within ten business days after the date of the Exercise Time. Unless this
Warrant has expired or all of the purchase rights represented hereby have
been exercised, the Company shall prepare a new Warrant, substantially
identical hereto, representing the rights formerly represented by this
Warrant which have not expired or been exercised and shall, within such
ten-day period, deliver such new Warrant to the Person designated for
delivery in the Exercise Agreement.
(iii) The Warrant Stock issuable upon the exercise of this
Warrant shall be
2
deemed to have been issued to the Holder at the Exercise Time, and the Holder
shall be deemed for all purposes to have become the record holder of such
Warrant Stock at the Exercise Time.
(iv) The issuance of certificates for shares of Warrant Stock upon
exercise of this Warrant shall be made without charge to the Holder for any
issuance tax in respect thereof or other cost incurred by the Company in
connection with such exercise and the related issuance of shares of Warrant
Stock. Each share of Warrant Stock issuable upon exercise of this Warrant
shall, upon payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all taxes and Liens (except for Liens created
pursuant to the Investor Rights Agreement).
(v) The Company shall not close its books against the transfer of
this Warrant or of any share of Warrant Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. The Company shall from time to time take all such
action as may be necessary to assure that the par value per share of the
unissued Warrant Stock acquirable upon exercise of this Warrant is at all
times equal to or less than the Exercise Price then in effect.
(vi) The Company shall assist and cooperate with any Holder
required to make any governmental filings or obtain any governmental
approvals prior to or in connection with any exercise of this Warrant
(including, without limitation, making any filings required to be made by the
Company).
(vii) Notwithstanding any other provision hereof, if an exercise
of any portion of this Warrant is to be made in connection with a registered
public offering or the sale of the Company, the exercise of any portion of
this Warrant may, at the election of the holder hereof, be conditioned upon
the consummation of the public offering or the sale of the Company in which
case such exercise shall not be deemed to be effective until the consummation
of such transaction.
(viii) The Company shall at all times reserve and keep available
out of its authorized but unissued shares of Warrant Stock solely for the
purpose of issuance upon the exercise of the Warrants, such number of shares
of Warrant Stock issuable upon the exercise of all outstanding Warrants. The
Company shall take all such actions as may be necessary to assure that all
such shares of Warrant Stock may be so issued without violation of any
applicable law or governmental regulation or any requirements of any domestic
securities exchange upon which shares of Warrant Stock may be listed (except
for official notice of issuance which shall be immediately delivered by the
Company upon each such issuance). The Company shall not take any action
which would cause the number of authorized but unissued shares of Warrant
Stock to be less than the number of such shares required to be reserved
hereunder for issuance upon exercise of the Warrant.
(ix) If the shares of Warrant Stock issuable by reason of exercise
of this Warrant are convertible into or exchangeable for any other stock or
securities of the Company, the Company shall, at the exercising holder's
option and upon surrender of this Warrant by such holder as provided above
together with any notice, statement or payment required to effect such
3
conversion or exchange of Warrant Stock, deliver to such holder (or as
otherwise specified by such holder) a certificate or certificates
representing the stock or securities into which the shares of Warrant Stock
issuable by reason of such conversion are convertible or exchangeable,
registered in such name or names and in such denomination or denominations as
such holder has specified.
1C. EXERCISE AGREEMENT. Upon any exercise of this Warrant, the
Exercise Agreement shall be substantially in the form set forth in EXHIBIT I
hereto, except that if the shares of Warrant Stock are not to be issued in
the name of the Person in whose name this Warrant is registered, the Exercise
Agreement shall also state the name of the Person to whom the certificates
for the shares of Warrant Stock are to be issued, and if the number of shares
of Warrant Stock to be issued does not include all the shares of Warrant
Stock purchasable hereunder, it shall also state the name of the Person to
whom a new Warrant for the unexercised portion of the rights hereunder is to
be delivered. Such Exercise Agreement shall be dated the actual date of
execution thereof.
Section 2. ORGANIC CHANGE; NOTICES
2A. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets or other
transaction, which in each case is effected in such a way that the holders of
capital stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
capital stock is referred to herein as "ORGANIC CHANGE." Prior to the
consummation of any Organic Change, the Company shall make appropriate
provision (in form and substance satisfactory to the Majority Warrant
Holders) to insure that each of the Holders of the Warrants shall thereafter
have the right to acquire and receive, in lieu of or addition to (as the case
may be) the shares of Warrant Stock immediately theretofore acquirable and
receivable upon the exercise of such holder's Warrant, such shares of stock,
securities or assets as may be issued or payable with respect to or in
exchange for the number of shares of Underlying Warrant Stock and (if would
yield more to the Holders) Ultimate Warrant Stock immediately theretofore
acquirable and receivable upon exercise of such holder's Warrant had such
Organic Change not taken place. In any such case, the Company shall make
appropriate provision (in form and substance satisfactory to the Majority
Warrant Holders which shall not be unreasonably withheld) with respect to
such holders' rights and interests to insure that the provisions of this
Sections 2 and 3 hereof shall thereafter be applicable to the Warrants. The
Company shall not effect any such consolidation, merger or sale, unless prior
to the consummation thereof, the successor entity (if other than the Company)
resulting from consolidation or merger or the entity purchasing such assets
assumes by written instrument (in form and substance satisfactory to the
Majority Warrant Holders which shall not be unreasonably withheld), the
obligation to deliver to each such holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such holder may be
entitled to acquire provided the aggregate purchase price shall remain the
same.
2B. NO AVOIDANCE. In the event the Company shall enter into any
transaction for the purpose of avoiding the provisions of this Section 2, the
benefits provided by such
4
provision shall nevertheless apply and be preserved.
2C. NOTICES.
(i) The Company shall give written notice to the Holder at least
20 days prior to the date on which the Company closes its books or takes a
record (a) with respect to any dividend or distribution upon the any of its
capital stock, (b) with respect to any pro rata subscription offer to holders
of any of its capital stock or (c) for determining rights to vote with
respect to any Organic Change, dissolution or liquidation.
(ii) The Company shall also give written notice to the Holders at
least 20 days prior to the date on which any Organic Change, dissolution or
liquidation shall take place.
Section 3. SUBDIVISION OR COMBINATION OF WARRANT STOCK. If the
Company at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares
of Warrant Stock into a greater number of shares, the Exercise Price in
effect immediately prior to such subdivision shall be proportionately reduced
and the number of shares of Warrant Stock obtainable upon exercise of this
Warrant shall be proportionately increased. If the Company at any time
combines (by reverse stock split or otherwise) one or more classes of its
outstanding shares of Warrant Stock into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination shall be
proportionately increased and the number of shares of Warrant Stock
obtainable upon exercise of this Warrant shall be proportionately decreased.
The Company shall promptly notify the Holder of any adjustment pursuant to
this Section 3.
Section 4. NO FRACTIONAL SHARE OR SCRIP. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of
this Warrant, but in lieu of such fractional shares the Company shall make a
cash payment therefor on the basis of the Market Price of one share of
Warrant Stock of the type in question.
Section 5. DEFINITIONS. The following terms have meanings set
forth below:
"BHC ACT" means the Bank Holding Company Act of 1956, as amended,
or any similar or successor federal statute, and the rules and regulations
promulgated thereunder, all as the same shall be in effect from time to time.
"CUMULATIVE WARRANT PERCENTAGE" means the lesser of (i) 1% and (ii)
the sum of the Daily Warrant Percentages for each day from and including the
Date of Issuance through and including the Exercise Time, as adjusted
pursuant to Section 15 hereof.
"DAILY WARRANT PERCENTAGE" means, for any day, the amount,
expressed as a percentage, equal to the product of 1/180 multiplied by the
aggregate unpaid principal amount of the Notes divided by 25 Million.
"CONVERTIBLE SECURITIES" means any stock or securities (directly or
indirectly)
5
convertible into or exchangeable for capital stock of Holdings.
"MAJORITY WARRANT HOLDERS" means (a) with respect to Section 2
hereof, holders (including BTFIC and its Affiliates, to the extent any such
entity is a holder) representing the right to purchase a majority of the
shares of Warrant Stock obtainable upon exercise of all Warrants then
outstanding, and (b) in all other respects, holders (including BTFIC and its
Affiliates, to the extent any such entity is a holder) representing in the
aggregate more than 50% of all Underlying Warrant Stock (assuming, for
purposes of this determination, that any holder of Underlying Warrant Stock
that now holds Ultimate Warrant Stock continues to hold Underlying Warrant
Stock). For purposes hereof, neither the Company nor any Affiliate thereof
shall be considered a "holder" with respect to any Underlying Common Stock
held by them.
"MARKET PRICE" means as to any security (other than the Warrants) the average
of the closing prices of such security's sales on all domestic securities
exchanges on which such security may at the time be listed or quoted,
including for this purpose, The Nasdaq Stock Market, or, if there have been
no sales on any such exchange on any day, the average of the highest bid and
lowest asked prices on all such exchanges at the end of such day, or, if on
any day such security is not so listed or quoted, the average of the highest
bid and lowest asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated, or any
similar successor organization, in each such case averaged over a period of
21 days consisting of the day as of which "MARKET PRICE" is being determined
and the 20 consecutive business days prior to such day; provided that if such
security is listed on any domestic securities exchange the term "business
days" as used in this sentence means business days on which such exchange is
open for trading. If at any time such security is not listed on any domestic
securities exchange or quoted on The Nasdaq Stock Market or the domestic
over-the-counter market, the "MARKET PRICE" shall be the fair value thereof
as determined by the Company and the Majority Warrant Holders; provided that
if such parties are unable to reach agreement within a reasonable period of
time, such fair value shall be determined by an appraiser jointly selected by
the Company and the Majority Warrant Holders. The determination of such
appraiser shall be final and binding on the Company and all Holders of the
Warrants and the fees and expenses of such appraiser shall be paid by the
Company. Any determination of Market Price of a security will be made
without giving effect to any discount for any lack of liquidity attributable
to a lack of a public market for such security, any block discount or
discount attributable to the size of any Person's holdings of such security,
any minority interest or any voting rights thereof or lack thereof and shall
be determined on the basis of the value of the Company as a going concern and
using the assumption that immediately prior to such determination all "in the
money" Options and Convertible Securities were exercised, converted or
exchanged. The "MARKET PRICE" of a Warrant means the excess of (i) the
Market Price of the shares of Warrant Stock obtainable upon exercise thereof
over (ii) the Aggregate Exercise Price of the Warrant Stock payable in
connection with such exercise. For purposes of Section 1B(i)(d)(2) above, the
"MARKET PRICE" of any debt security or any preferred stock of the Company or
any of its Wholly-Owned Subsidiaries shall be deemed to be equal to the
aggregate outstanding principal amount or liquidation value thereof (as
applicable) plus all accrued and unpaid interest or dividends thereon (as
applicable) plus all premium and other amounts owing with respect thereto.
6
"OPTIONS" means any rights or options to subscribe for or purchase
capital stock of Holdings or Convertible Securities.
"PUBLIC OFFERING" means a public offering of shares of Warrant
Stock of the Company registered under the Securities Act.
"ULTIMATE WARRANT STOCK" means any shares of capital stock issued
or issuable upon exercise, conversion or exchange of any shares of Underlying
Warrant Stock that consist of Convertible Securities.
"UNDERLYING WARRANT STOCK" means, as to any class of Warrant Stock,
(i) such class of Warrant Stock issued or issuable upon exercise of the
Warrants and (ii) any capital stock issued or issuable with respect to the
securities referred to in clause (i) above by way of stock dividend or stock
split or in connection with an exchange, a combination of shares,
recapitalization, merger, consolidation or other reorganization. For
purposes of the Purchase Agreement and this Warrant, any Person who holds
Warrants shall be deemed to be the holder of the Underlying Warrant Stock
obtainable upon exercise of the Warrants in connection with the transfer
thereof or otherwise regardless of any restriction or limitation on the
exercise of the Warrants, such Underlying Warrant Stock shall be deemed to be
in existence, and such Person shall be entitled to exercise the rights of a
holder of Underlying Warrant Stock hereunder and thereunder. As to any
particular shares of Underlying Warrant Stock, such shares shall cease to be
Underlying Warrant Stock when they have been (a) effectively registered under
the Securities Act and disposed of in accordance with the registration
statement covering them, (b) distributed to the public through a broker,
dealer or market maker pursuant to Rule 144 under the Securities Act (or any
similar provision then in force) or (c) repurchased by the Company or any of
its Subsidiaries.
"WARRANT STOCK" means the Company's Class 1 Common Stock , par
value $.01 per share; provided that if there is a change such that the
securities issuable upon exercise of the Warrants are issued by an entity
other than the Company or there is a change in the type or class of
securities so issuable, then the term "Warrant Stock" shall include one share
of the security issuable upon exercise of the Warrants if such security is
issuable in shares, or shall mean the smallest unit in which such security is
issuable if such security is not issuable in shares.
"WARRANT STOCK DEEMED OUTSTANDING" means, at any given time, (a)
with respect to any class of Warrant Stock that does not consist of
Convertible Securities, the number of shares of such class of Underlying
Warrant Stock outstanding at such time, plus the number of shares of any
other capital stock that is substantially identical to such Underlying
Warrant Stock except with respect to voting rights and as otherwise required
by applicable law, which in the case of the Company's Class 1 Common Stock,
shall be the Company's Class 2 Common Stock ("PARALLEL UNDERLYING WARRANT
STOCK") that is outstanding at such time, plus the maximum number of shares
of Underlying Warrant Stock and Parallel Underlying Warrant Stock that would
be outstanding at such time upon the exercise, conversion or exchange of all
Options and Convertible Securities outstanding at such time with respect to
shares of such class of
7
Underlying Warrant Stock and Parallel Underlying Warrant Stock, regardless of
whether the Options or Convertible Securities are actually exercisable at
such time and (b) with respect to any class of Warrant Stock that consists of
Convertible Securities, the number of shares of such class of Ultimate
Warrant Stock outstanding or deemed outstanding at such time, plus the number
of shares of any other capital stock that is substantially identical to such
Ultimate Warrant Stock except with respect to voting rights and as otherwise
required by applicable law ("PARALLEL ULTIMATE WARRANT STOCK") that is
outstanding at such time, plus the maximum number of shares of Ultimate
Warrant Stock and Parallel Ultimate Warrant Stock that would be outstanding
upon the exercise, conversion or exchange of all Options and Convertible
Securities in existence at such time with respect to shares of such class of
Ultimate Warrant Stock and Parallel Ultimate Warrant Stock, regardless of
whether the Options or Convertible Securities are actually exercisable at
such time.
Section 6. NO VOTING RIGHTS; LIMITATIONS OF LIABILITY; TAX
MATTERS. This Warrant shall not entitle the holder hereof to any voting
rights or other rights as a stockholder of the Company. No provision hereof,
in the absence of affirmative action by the Holder to purchase Warrant Stock,
and no enumeration herein of the rights or privileges of the Holder shall
give rise to any liability of such holder for the Exercise Price of Warrant
Stock acquirable by exercise hereof or as a stockholder of the Company. If
the Holder incurs any tax liability as a result of being treated as a
stockholder of the Company prior to exercise of this Warrant, the Company
will immediately make payment to the Holder equal to the amount of such tax
liability together with any other costs (including, without limitation,
interest and penalties) associated therewith.
Section 7. WARRANT TRANSFERABLE. Subject to the transfer
conditions referred to in the legend endorsed hereon and the Purchase
Agreement, this Warrant and all rights hereunder are transferable, in whole
or in part, without charge to the Holder, upon surrender of this Warrant with
a properly executed Assignment (in the form of EXHIBIT II hereto) at the
principal office of the Company.
Section 8. WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each of such new Warrants
shall represent such portion of such rights as is designated by the Holder at
the time of such surrender. The date the Company initially issues this
Warrant shall be deemed to be the "DATE OF ISSUANCE" hereof regardless of the
number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant shall be issued. All Warrants
representing portions of the rights hereunder are referred to herein as the
"WARRANTS."
Section 9. REPLACEMENT. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation
of any certificate evidencing this Warrant, and in the case of any such loss,
theft or destruction, upon receipt of indemnity reasonably satisfactory to
the Company (provided that if the holder is a financial institution or other
institutional investor or an Affiliate thereof its own agreement shall be
satisfactory), or, in the case of any such mutilation upon sur-
8
render of such certificate, the Company shall (at its expense) execute and
deliver, in lieu thereof, a new certificate of like kind representing the
same rights represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
Section 10. NOTICES. Except as otherwise expressly provided
herein, all notices referred to in this Warrant shall be in writing and shall
be delivered personally, sent by reputable overnight courier service (charges
prepaid) or sent by registered or certified mail, return receipt requested,
postage prepaid and shall be deemed to have been given when so delivered,
sent or deposited in the U.S. Mail (i) to the Company, at its principal
executive offices and (ii) to the Holder of this Warrant, at such holder's
address as it appears in the records of the Company (unless otherwise
indicated by any such holder).
Section 11. AMENDMENT AND WAIVER. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required
to be performed by it, only if the Company has obtained the written consent
of the Majority Warrant Holders; provided that no such action may change the
Exercise Price of this Warrant or the number of shares or class of stock
obtainable upon exercise of this Warrant without the written consent of the
Holder of this Warrant.
Section 12. GOVERNING LAW. THE CORPORATE LAWS OF THE STATE OF
DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE
COMPANY AND ITS STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL
BE GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF
THE STATE OF NEW YORK OR ANY OTHER JURISDICTIONS) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTIONS OTHER THAN THE STATE OF NEW
YORK. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS WARRANT EVEN
THOUGH UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS,
THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD NORMALLY APPLY.
Section 13. BHC ACT LIMITATIONS. If any Holder is prevented by
the BHC Act from receiving any payment, dividend, distribution or other
consideration that the Company is required or permitted to make such Holder
under any provision of this Warrant, then, notwithstanding anything to the
contrary contained or implied herein, the Company shall (unless the
applicable provision of this Warrant provides an alternative to such payment,
dividend, distribution or other consideration at the Company's option and the
Company elects such alternative) structure the transaction described in such
Section so that such Holder receives substantially equivalent consideration
that is in a form not prohibited by the BHC Act (as determined in good faith
by the Board of Directors and such Holders).
Section 14. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In
connection with the issuance of this Warrant, the Company hereby represents
and represents that the representations and warranties contained in Sections
6.1, 6.2, 6.3, 6.4 (as such representation and
9
warranties relates to the Purchase Agreement, as it pertains to Holdings, the
Certificate of Incorporation, the Warrants, and the fulfillment and
compliance with Holdings' obligations contained in the Purchase Agreement and
the Warrants, including the offering, sale and issuance of the Warrant and
the issuance of capital stock upon the direct or indirect exercise of the
Warrants only), 6.9 and the first two sentences of Section 6.10.
Section 15. REGISTRATION RIGHTS; RELATED MATTERS. Within 45
days after the Date of Issuance hereof, the Company shall cause the Investor
Rights Agreement to be amended in the form of Annex A attached hereto. If
the Company fails to so amend the Investor Rights Agreement within such
45-day period, the Cumulative Warrant Percentage shall be 50% higher than the
percentage it would otherwise be without giving effect to this paragraph and
shall increase by an additional 25% at the end of each 45-day period
thereafter, if at the end of such period, this Section 15 has not been fully
complied with.
* * * *
10
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officers under its corporate seal
and to be dated the Date of Issuance hereof.
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By_____________________________
Its____________________________
[CORPORATE SEAL]
Attest:
____________________________
Secretary
STATE OF CALIFORNIA )
COUNTY )
I, the undersigned authority, a Notary public in and for said County
and State, hereby certify that _______________________, whose name as of
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC. a Delaware corporation,
is signed to the foregoing instrument, and who is known to me, acknowledge
before me on this day that, being informed of the contents of the instrument,
he/she, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and official seal this _____ day of January, 1998
____________________________
Notary Public
Commission Expires:_________
EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W-____), hereby agrees to subscribe for the
purchase of ______ shares of the Warrant Stock covered by such Warrant and
makes payment herewith in full therefor at the price per share provided by
such Warrant.
Signature ____________________
Address ______________________
E-1
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, _________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. W-_____) with respect to the number of shares of the
Warrant Stock covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
----------------- ------- -------------
Dated: Signature _______________________
_______________________
Witness _______________________
E-2
The security represented by this certificate was originally
issued on January 23, 1998, and has not been registered under
the Securities Act of 1933, as amended. The transfer of such
security is subject to the conditions specified in the Amended
and Restated Senior Secured Note and Warrant Purchase Agreement,
dated as of January 23, 1998 (as amended and modified from time
to time), between the issuer hereof (the "COMPANY"), Radio Movil
Digital Americas, Inc., the initial holder hereof and certain
other investors from time to time a party thereto, and the
Company reserves the right to refuse the transfer of such
security until such conditions have been fulfilled with respect
to such transfer. Upon written request, a copy of such agreement
shall be furnished by the Company to the holder hereof without
charge.
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC.
STOCK PURCHASE WARRANT
Date of Issuance: January 23, 1998 Certificate No. W-RMD3
FOR VALUE RECEIVED, International Wireless Communications Holdings,
Inc., a Delaware corporation (the "COMPANY"), hereby grants to BT Foreign
Investment Corporation, a Delaware corporation (the "PURCHASER"), or its
assigns (the Purchaser and/or any Person or Persons to whom the Purchaser or
an assignee has assigned this Warrant pursuant to Section 8 hereof is
referred to as the "HOLDER") the right to purchase from the Company at any
time during the Exercise Period (as defined below) the number of shares of
each class of Warrant Stock that represents the Cumulative Warrant Percentage
of such Class of Warrant Stock Deemed Outstanding as of close of business on
the Date of Issuance at a price per share of $0.01 (the "EXERCISE PRICE").
This Warrant is one of several warrants (collectively, the "WARRANTS") issued
pursuant to the terms of the Amended and Restated Senior Secured Note and
Warrant Purchase Agreement, dated as of January 23, 1998 (the "PURCHASE
AGREEMENT"), among the Company, Radio Movil Digital Americas, Inc. and
certain investors from time to time a party thereto. Certain capitalized
terms used herein are defined in Section 5 hereof. Other capitalized terms
used in this Warrant but not defined herein shall have the meanings set forth
in the Purchase Agreement.
The amount and kind of securities obtainable pursuant to the rights
granted hereunder and the purchase price for such securities are subject to
adjustment pursuant to the provisions contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1. EXERCISE OF WARRANT.
1A. EXERCISE PERIOD. The Holder may exercise, in whole or in part,
the purchase rights represented by this Warrant at any time and from time to
time after the Date of Issuance (the "EARLIEST EXERCISE DATE") to and
including the later of (i) the tenth anniversary of the Earliest Exercise
Date and (ii) the date on which all principal, interest, premiums (if any)
and other Obligations due in respect of the Notes has been paid in full (the
"EXERCISE PERIOD"). The Company shall give the Holder written notice of the
expiration of the Exercise Period at least 10 days but not more than 30 days
prior to the end of the Exercise Period.
1B. EXERCISE PROCEDURE.
(i) This Warrant shall be deemed to have been exercised when the
Company has received all of the following items (the "EXERCISE TIME"):
(a) a completed Exercise Agreement, as described in Section 1C
below, executed by the Person exercising all or part of the purchase
rights represented by this Warrant;
(b) this Warrant;
(c) if this Warrant is not registered in the name of the Purchaser,
an Assignment or Assignments in the form set forth in EXHIBIT II hereto
evidencing the assignment of this Warrant to the Holder, in which case the
Holder shall have complied with the provisions set forth in Section 8
hereof; and
(d) either (1) a check payable to the Company in an amount equal to
the product of the Exercise Price multiplied by the number of shares of
Warrant Stock being purchased upon such exercise (the "AGGREGATE EXERCISE
PRICE") or (2) a written notice to the Company that the Holder is
exercising the Warrant (or a portion thereof) by authorizing the Company
to withhold from issuance a number of shares of Warrant Stock issuable
upon such exercise of the Warrant which when multiplied by the Market
Price of the Warrant Stock is equal to the Aggregate Exercise Price
(and such withheld shares shall no longer be issuable under this Warrant).
(ii) Certificates for shares of Warrant Stock purchased upon
exercise of this Warrant shall be delivered by the Company to the Holder
within ten business days after the date of the Exercise Time. Unless this
Warrant has expired or all of the purchase rights represented hereby have
been exercised, the Company shall prepare a new Warrant, substantially
identical hereto, representing the rights formerly represented by this
Warrant which have not expired or been exercised and shall, within such
ten-day period, deliver such new Warrant to the Person designated for
delivery in the Exercise Agreement.
(iii) The Warrant Stock issuable upon the exercise of this Warrant
shall be
2
deemed to have been issued to the Holder at the Exercise Time, and the Holder
shall be deemed for all purposes to have become the record holder of such
Warrant Stock at the Exercise Time.
(iv) The issuance of certificates for shares of Warrant Stock upon
exercise of this Warrant shall be made without charge to the Holder for any
issuance tax in respect thereof or other cost incurred by the Company in
connection with such exercise and the related issuance of shares of Warrant
Stock. Each share of Warrant Stock issuable upon exercise of this Warrant
shall, upon payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all taxes and Liens (except for Liens created
pursuant to the Investor Rights Agreement).
(v) The Company shall not close its books against the transfer of
this Warrant or of any share of Warrant Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. The Company shall from time to time take all such
action as may be necessary to assure that the par value per share of the
unissued Warrant Stock acquirable upon exercise of this Warrant is at all
times equal to or less than the Exercise Price then in effect.
(vi) The Company shall assist and cooperate with any Holder
required to make any governmental filings or obtain any governmental
approvals prior to or in connection with any exercise of this Warrant
(including, without limitation, making any filings required to be made by the
Company).
(vii) Notwithstanding any other provision hereof, if an exercise of
any portion of this Warrant is to be made in connection with a registered
public offering or the sale of the Company, the exercise of any portion of
this Warrant may, at the election of the holder hereof, be conditioned upon
the consummation of the public offering or the sale of the Company in which
case such exercise shall not be deemed to be effective until the consummation
of such transaction.
(viii) The Company shall at all times reserve and keep available out
of its authorized but unissued shares of Warrant Stock solely for the purpose
of issuance upon the exercise of the Warrants, such number of shares of
Warrant Stock issuable upon the exercise of all outstanding Warrants. The
Company shall take all such actions as may be necessary to assure that all
such shares of Warrant Stock may be so issued without violation of any
applicable law or governmental regulation or any requirements of any domestic
securities exchange upon which shares of Warrant Stock may be listed (except
for official notice of issuance which shall be immediately delivered by the
Company upon each such issuance). The Company shall not take any action
which would cause the number of authorized but unissued shares of Warrant
Stock to be less than the number of such shares required to be reserved
hereunder for issuance upon exercise of the Warrant.
(ix) If the shares of Warrant Stock issuable by reason of exercise
of this Warrant are convertible into or exchangeable for any other stock or
securities of the Company, the Company shall, at the exercising holder's
option and upon surrender of this Warrant by such holder as provided above
together with any notice, statement or payment required to effect such
3
conversion or exchange of Warrant Stock, deliver to such holder (or as
otherwise specified by such holder) a certificate or certificates
representing the stock or securities into which the shares of Warrant Stock
issuable by reason of such conversion are convertible or exchangeable,
registered in such name or names and in such denomination or denominations as
such holder has specified.
1C. EXERCISE AGREEMENT. Upon any exercise of this Warrant, the
Exercise Agreement shall be substantially in the form set forth in EXHIBIT I
hereto, except that if the shares of Warrant Stock are not to be issued in
the name of the Person in whose name this Warrant is registered, the Exercise
Agreement shall also state the name of the Person to whom the certificates
for the shares of Warrant Stock are to be issued, and if the number of shares
of Warrant Stock to be issued does not include all the shares of Warrant
Stock purchasable hereunder, it shall also state the name of the Person to
whom a new Warrant for the unexercised portion of the rights hereunder is to
be delivered. Such Exercise Agreement shall be dated the actual date of
execution thereof.
Section 2. ORGANIC CHANGE; NOTICES
2A. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets or other
transaction, which in each case is effected in such a way that the holders of
capital stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
capital stock is referred to herein as "ORGANIC CHANGE." Prior to the
consummation of any Organic Change, the Company shall make appropriate
provision (in form and substance satisfactory to the Majority Warrant
Holders) to insure that each of the Holders of the Warrants shall thereafter
have the right to acquire and receive, in lieu of or addition to (as the case
may be) the shares of Warrant Stock immediately theretofore acquirable and
receivable upon the exercise of such holder's Warrant, such shares of stock,
securities or assets as may be issued or payable with respect to or in
exchange for the number of shares of Underlying Warrant Stock and (if would
yield more to the Holders) Ultimate Warrant Stock immediately theretofore
acquirable and receivable upon exercise of such holder's Warrant had such
Organic Change not taken place. In any such case, the Company shall make
appropriate provision (in form and substance satisfactory to the Majority
Warrant Holders which shall not be unreasonably withheld) with respect to
such holders' rights and interests to insure that the provisions of this
Sections 2 and 3 hereof shall thereafter be applicable to the Warrants. The
Company shall not effect any such consolidation, merger or sale, unless prior
to the consummation thereof, the successor entity (if other than the Company)
resulting from consolidation or merger or the entity purchasing such assets
assumes by written instrument (in form and substance satisfactory to the
Majority Warrant Holders which shall not be unreasonably withheld), the
obligation to deliver to each such holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such holder may be
entitled to acquire provided the aggregate purchase price shall remain the
same.
2B. NO AVOIDANCE. In the event the Company shall enter into any
transaction for the purpose of avoiding the provisions of this Section 2, the
benefits provided by such
4
provision shall nevertheless apply and be preserved.
2C. NOTICES.
(i) The Company shall give written notice to the Holder at least 20
days prior to the date on which the Company closes its books or takes a
record (a) with respect to any dividend or distribution upon the any of its
capital stock, (b) with respect to any pro rata subscription offer to holders
of any of its capital stock or (c) for determining rights to vote with
respect to any Organic Change, dissolution or liquidation.
(ii) The Company shall also give written notice to the Holders at
least 20 days prior to the date on which any Organic Change, dissolution or
liquidation shall take place.
Section 3. SUBDIVISION OR COMBINATION OF WARRANT STOCK. If the
Company at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares
of Warrant Stock into a greater number of shares, the Exercise Price in
effect immediately prior to such subdivision shall be proportionately reduced
and the number of shares of Warrant Stock obtainable upon exercise of this
Warrant shall be proportionately increased. If the Company at any time
combines (by reverse stock split or otherwise) one or more classes of its
outstanding shares of Warrant Stock into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination shall be
proportionately increased and the number of shares of Warrant Stock
obtainable upon exercise of this Warrant shall be proportionately decreased.
The Company shall promptly notify the Holder of any adjustment pursuant to
this Section 3.
Section 4. NO FRACTIONAL SHARE OR SCRIP. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of
this Warrant, but in lieu of such fractional shares the Company shall make a
cash payment therefor on the basis of the Market Price of one share of
Warrant Stock of the type in question.
Section 5. DEFINITIONS. The following terms have meanings set
forth below:
"BHC ACT" means the Bank Holding Company Act of 1956, as amended, or
any similar or successor federal statute, and the rules and regulations
promulgated thereunder, all as the same shall be in effect from time to time.
"CUMULATIVE WARRANT PERCENTAGE" means the lesser of (i) 1% and (ii)
the sum of the Daily Warrant Percentages for each day from and including the
Date of Issuance through and including the Exercise Time, as adjusted
pursuant to Section 15 hereof.
"DAILY WARRANT PERCENTAGE" means, for any day, the amount, expressed
as a percentage, equal to the product of 1/360 multiplied by the aggregate
unpaid principal amount of the Notes divided by 25 Million.
"CONVERTIBLE SECURITIES" means any stock or securities (directly or
indirectly)
5
convertible into or exchangeable for capital stock of Holdings.
"MAJORITY WARRANT HOLDERS" means (a) with respect to Section 2
hereof, holders (including BTFIC and its Affiliates, to the extent any such
entity is a holder) representing the right to purchase a majority of the
shares of Warrant Stock obtainable upon exercise of all Warrants then
outstanding, and (b) in all other respects, holders (including BTFIC and its
Affiliates, to the extent any such entity is a holder) representing in the
aggregate more than 50% of all Underlying Warrant Stock (assuming, for
purposes of this determination, that any holder of Underlying Warrant Stock
that now holds Ultimate Warrant Stock continues to hold Underlying Warrant
Stock). For purposes hereof, neither the Company nor any Affiliate thereof
shall be considered a "holder" with respect to any Underlying Common Stock
held by them.
"MARKET PRICE" means as to any security (other than the Warrants)
the average of the closing prices of such security's sales on all domestic
securities exchanges on which such security may at the time be listed or
quoted, including for this purpose, The Nasdaq Stock Market, or, if there
have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed or quoted, the average
of the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case
averaged over a period of 21 days consisting of the day as of which "MARKET
PRICE" is being determined and the 20 consecutive business days prior to such
day; provided that if such security is listed on any domestic securities
exchange the term "business days" as used in this sentence means business
days on which such exchange is open for trading. If at any time such
security is not listed on any domestic securities exchange or quoted on The
Nasdaq Stock Market or the domestic over-the-counter market, the "MARKET
PRICE" shall be the fair value thereof as determined by the Company and the
Majority Warrant Holders; provided that if such parties are unable to reach
agreement within a reasonable period of time, such fair value shall be
determined by an appraiser jointly selected by the Company and the Majority
Warrant Holders. The determination of such appraiser shall be final and
binding on the Company and all Holders of the Warrants and the fees and
expenses of such appraiser shall be paid by the Company. Any determination
of Market Price of a security will be made without giving effect to any
discount for any lack of liquidity attributable to a lack of a public market
for such security, any block discount or discount attributable to the size of
any Person's holdings of such security, any minority interest or any voting
rights thereof or lack thereof and shall be determined on the basis of the
value of the Company as a going concern and using the assumption that
immediately prior to such determination all "in the money" Options and
Convertible Securities were exercised, converted or exchanged. The "MARKET
PRICE" of a Warrant means the excess of (i) the Market Price of the shares of
Warrant Stock obtainable upon exercise thereof over (ii) the Aggregate
Exercise Price of the Warrant Stock payable in connection with such exercise.
For purposes of Section 1B(i)(d)(2) above, the "MARKET PRICE" of any debt
security or any preferred stock of the Company or any of its Wholly-Owned
Subsidiaries shall be deemed to be equal to the aggregate outstanding
principal amount or liquidation value thereof (as applicable) plus all
accrued and unpaid interest or dividends thereon (as applicable) plus all
premium and other amounts owing with respect thereto.
6
"OPTIONS" means any rights or options to subscribe for or purchase
capital stock of Holdings or Convertible Securities.
"PUBLIC OFFERING" means a public offering of shares of Warrant Stock
of the Company registered under the Securities Act.
"ULTIMATE WARRANT STOCK" means any shares of capital stock issued or
issuable upon exercise, conversion or exchange of any shares of Underlying
Warrant Stock that consist of Convertible Securities.
"UNDERLYING WARRANT STOCK" means, as to any class of Warrant Stock,
(i) such class of Warrant Stock issued or issuable upon exercise of the
Warrants and (ii) any capital stock issued or issuable with respect to the
securities referred to in clause (i) above by way of stock dividend or stock
split or in connection with an exchange, a combination of shares,
recapitalization, merger, consolidation or other reorganization. For
purposes of the Purchase Agreement and this Warrant, any Person who holds
Warrants shall be deemed to be the holder of the Underlying Warrant Stock
obtainable upon exercise of the Warrants in connection with the transfer
thereof or otherwise regardless of any restriction or limitation on the
exercise of the Warrants, such Underlying Warrant Stock shall be deemed to be
in existence, and such Person shall be entitled to exercise the rights of a
holder of Underlying Warrant Stock hereunder and thereunder. As to any
particular shares of Underlying Warrant Stock, such shares shall cease to be
Underlying Warrant Stock when they have been (a) effectively registered under
the Securities Act and disposed of in accordance with the registration
statement covering them, (b) distributed to the public through a broker,
dealer or market maker pursuant to Rule 144 under the Securities Act (or any
similar provision then in force) or (c) repurchased by the Company or any of
its Subsidiaries.
"WARRANT STOCK" means the Company's Class 1 Common Stock , par value
$.01 per share; provided that if there is a change such that the securities
issuable upon exercise of the Warrants are issued by an entity other than the
Company or there is a change in the type or class of securities so issuable,
then the term "Warrant Stock" shall include one share of the security
issuable upon exercise of the Warrants if such security is issuable in
shares, or shall mean the smallest unit in which such security is issuable if
such security is not issuable in shares.
"WARRANT STOCK DEEMED OUTSTANDING" means, at any given time, (a)
with respect to any class of Warrant Stock that does not consist of
Convertible Securities, the number of shares of such class of Underlying
Warrant Stock outstanding at such time, plus the number of shares of any
other capital stock that is substantially identical to such Underlying
Warrant Stock except with respect to voting rights and as otherwise required
by applicable law, which in the case of the Company's Class 1 Common Stock,
shall be the Company's Class 2 Common Stock ("PARALLEL UNDERLYING WARRANT
STOCK") that is outstanding at such time, plus the maximum number of shares
of Underlying Warrant Stock and Parallel Underlying Warrant Stock that would
be outstanding at such time upon the exercise, conversion or exchange of all
Options and Convertible Securities outstanding at such time with respect to
shares of such class of
7
Underlying Warrant Stock and Parallel Underlying Warrant Stock, regardless of
whether the Options or Convertible Securities are actually exercisable at
such time and (b) with respect to any class of Warrant Stock that consists of
Convertible Securities, the number of shares of such class of Ultimate
Warrant Stock outstanding or deemed outstanding at such time, plus the number
of shares of any other capital stock that is substantially identical to such
Ultimate Warrant Stock except with respect to voting rights and as otherwise
required by applicable law ("PARALLEL ULTIMATE WARRANT STOCK") that is
outstanding at such time, plus the maximum number of shares of Ultimate
Warrant Stock and Parallel Ultimate Warrant Stock that would be outstanding
upon the exercise, conversion or exchange of all Options and Convertible
Securities in existence at such time with respect to shares of such class of
Ultimate Warrant Stock and Parallel Ultimate Warrant Stock, regardless of
whether the Options or Convertible Securities are actually exercisable at
such time.
Section 6. NO VOTING RIGHTS; LIMITATIONS OF LIABILITY; TAX MATTERS.
This Warrant shall not entitle the holder hereof to any voting rights or
other rights as a stockholder of the Company. No provision hereof, in the
absence of affirmative action by the Holder to purchase Warrant Stock, and no
enumeration herein of the rights or privileges of the Holder shall give rise
to any liability of such holder for the Exercise Price of Warrant Stock
acquirable by exercise hereof or as a stockholder of the Company. If the
Holder incurs any tax liability as a result of being treated as a stockholder
of the Company prior to exercise of this Warrant, the Company will
immediately make payment to the Holder equal to the amount of such tax
liability together with any other costs (including, without limitation,
interest and penalties) associated therewith.
Section 7. WARRANT TRANSFERABLE. Subject to the transfer
conditions referred to in the legend endorsed hereon and the Purchase
Agreement, this Warrant and all rights hereunder are transferable, in whole
or in part, without charge to the Holder, upon surrender of this Warrant with
a properly executed Assignment (in the form of EXHIBIT II hereto) at the
principal office of the Company.
Section 8. WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each of such new Warrants
shall represent such portion of such rights as is designated by the Holder at
the time of such surrender. The date the Company initially issues this
Warrant shall be deemed to be the "DATE OF ISSUANCE" hereof regardless of the
number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant shall be issued. All Warrants
representing portions of the rights hereunder are referred to herein as the
"WARRANTS."
Section 9. REPLACEMENT. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation
of any certificate evidencing this Warrant, and in the case of any such loss,
theft or destruction, upon receipt of indemnity reasonably satisfactory to
the Company (provided that if the holder is a financial institution or other
institutional investor or an Affiliate thereof its own agreement shall be
satisfactory), or, in the case of any such mutilation upon sur-
8
render of such certificate, the Company shall (at its expense) execute and
deliver, in lieu thereof, a new certificate of like kind representing the
same rights represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
Section 10. NOTICES. Except as otherwise expressly provided
herein, all notices referred to in this Warrant shall be in writing and shall
be delivered personally, sent by reputable overnight courier service (charges
prepaid) or sent by registered or certified mail, return receipt requested,
postage prepaid and shall be deemed to have been given when so delivered,
sent or deposited in the U.S. Mail (i) to the Company, at its principal
executive offices and (ii) to the Holder of this Warrant, at such holder's
address as it appears in the records of the Company (unless otherwise
indicated by any such holder).
Section 11. AMENDMENT AND WAIVER. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required
to be performed by it, only if the Company has obtained the written consent
of the Majority Warrant Holders; provided that no such action may change the
Exercise Price of this Warrant or the number of shares or class of stock
obtainable upon exercise of this Warrant without the written consent of the
Holder of this Warrant.
Section 12. GOVERNING LAW. THE CORPORATE LAWS OF THE STATE OF
DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE
COMPANY AND ITS STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL
BE GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF
THE STATE OF NEW YORK OR ANY OTHER JURISDICTIONS) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTIONS OTHER THAN THE STATE OF NEW
YORK. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS WARRANT EVEN
THOUGH UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS,
THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD NORMALLY APPLY.
Section 13. BHC ACT LIMITATIONS. If any Holder is prevented by
the BHC Act from receiving any payment, dividend, distribution or other
consideration that the Company is required or permitted to make such Holder
under any provision of this Warrant, then, notwithstanding anything to the
contrary contained or implied herein, the Company shall (unless the
applicable provision of this Warrant provides an alternative to such payment,
dividend, distribution or other consideration at the Company's option and the
Company elects such alternative) structure the transaction described in such
Section so that such Holder receives substantially equivalent consideration
that is in a form not prohibited by the BHC Act (as determined in good faith
by the Board of Directors and such Holders).
Section 14. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In
connection with the issuance of this Warrant, the Company hereby represents
and represents that the representations and warranties contained in Sections
6.1, 6.2, 6.3, 6.4 (as such representation and
9
warranties relates to the Purchase Agreement, as it pertains to Holdings, the
Certificate of Incorporation, the Warrants, and the fulfillment and
compliance with Holdings' obligations contained in the Purchase Agreement and
the Warrants, including the offering, sale and issuance of the Warrant and
the issuance of capital stock upon the direct or indirect exercise of the
Warrants only), 6.9 and the first two sentences of Section 6.10.
Section 15. REGISTRATION RIGHTS; RELATED MATTERS. Within 45 days
after the Date of Issuance hereof, the Company shall cause the Investor
Rights Agreement to be amended in the form of Annex A attached hereto. If
the Company fails to so amend the Investor Rights Agreement within such
45-day period, the Cumulative Warrant Percentage shall be 50% higher than the
percentage it would otherwise be without giving effect to this paragraph and
shall increase by an additional 25% at the end of each 45-day period
thereafter, if at the end of such period, this Section 15 has not been fully
complied with.
* * * *
10
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and to
be dated the Date of Issuance hereof.
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By
-------------------------------------------
Its
------------------------------------------
[CORPORATE SEAL]
Attest:
____________________________
Secretary
STATE OF CALIFORNIA )
COUNTY )
I, the undersigned authority, a Notary public in and for said County and
State, hereby certify that _______________________, whose name as of
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC. a Delaware corporation,
is signed to the foregoing instrument, and who is known to me, acknowledge
before me on this day that, being informed of the contents of the instrument,
he/she, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and official seal this _____ day of January, 1998
--------------------------------------
Notary Public
Commission Expires:
-------------------
EXHIBIT I
EXERCISE AGREEMENT
------------------
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W-____), hereby agrees to subscribe for the
purchase of ______ shares of the Warrant Stock covered by such Warrant and
makes payment herewith in full therefor at the price per share provided by
such Warrant.
Signature ____________________
Address ______________________
E-1
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, _________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. W-_____) with respect to the number of shares of the
Warrant Stock covered thereby set forth below, unto:
NAMES OF ASSIGNEE ADDRESS NO. OF SHARES
----------------- ------- -------------
Dated: Signature _______________________
_______________________
Witness _______________________
E-2
