Page 24 of 45 Pages
EXHIBIT V
NEITHER THIS AMENDED AND RESTATED WARRANT (THE "WARRANT") NOR THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF NOR ANY INTEREST OR PARTICIPATION HEREIN OR
THEREIN MAY BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, ENCUMBERED OR IN
ANY OTHER MANNER TRANSFERRED OR DISPOSED OF IN THE UNITED STATES EXCEPT IN
COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
ANY APPLICABLE STATE SECURITIES LAWS AND THE TERMS AND CONDITIONS HEREOF. THE
HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF ARE
SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M., NEW YORK, NEW YORK TIME, APRIL 4, 2003
***************************************
AMENDED AND RESTATED WARRANT
to
PURCHASE COMMON STOCK
of
GEOTEK COMMUNICATIONS, INC.
▇▇▇▇▇▇▇▇ AND RESTATING THE WARRANT
ORIGINALLY ISSUED ON APRIL 4, 1996
IN CONNECTION WITH THAT CERTAIN SENIOR LOAN AGREEMENT DATED
APRIL 4, 1996 BETWEEN GEOTEK COMMUNICATIONS, INC.
AND S-C RIG INVESTMENTS-III, L.P.
***************************************
This certifies that, for good and valuable consideration, Geotek
Communications, Inc., a Delaware corporation (the "Company"), grants to S-C Rig
Investments - III, L.P., a Delaware limited partnership, or permitted registered
assigns (the "Warrantholder" or "Warrantholders"), the right to subscribe for
and purchase from the Company, at a purchase price of $6.00 per share (the
"Exercise Price"), at any time and from time to time after the date hereof
(i.e., April 22, 1997)(the "Initial Exercise Date"), and to and including 5:00
P.M. New York City time on April 4, 2003 (the "Expiration Date"), Four Million
Two Hundred Ten Thousand Five Hundred and Twenty-six (4,210,526) shares, as such
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number of shares may be adjusted from time to time (the "Warrant Shares"), of
the Company's Common Stock, par value $.01 per share (the "Common Stock"),
subject to the provisions and upon the terms and conditions herein set forth.
The Exercise Price and the number of Warrant Shares are subject to adjustment
from time to time as provided in Section 6.
SECTION 1. Exercise of Warrant; Limitation on Exercise; Payment of Taxes.
-------------------------------------------------------------
1.1 Exercise of Warrant.
-------------------
(a) Subject to Section 1.2 hereof, the Warrantholder may exercise this
Warrant, in whole or in part at any time and from time to time after the Initial
Exercise Date, by presentation and surrender of this Warrant to the Company at
its principal executive offices or at the office of its stock transfer agent, if
any, with the Subscription Form annexed hereto duly executed and accompanied by
cash payment of the full Exercise Price for each Warrant Share to be purchased.
(b) Upon receipt of this Warrant, with the Subscription Form duly
executed and accompanied by payment of the aggregate Exercise Price for the
Warrant Shares for which this Warrant is then being exercised, the Company shall
cause to be issued certificates for the total number of whole shares of Common
Stock for which this Warrant is being exercised (adjusted to reflect the effect
of the antidilution provisions contained in Section 6 hereof, if any, and as
provided in Sections 5 and 7.8 hereof) in such denominations as are requested
for delivery to the Warrantholder, and the Company shall thereupon deliver such
certificates to the Warrantholder. The stock certificates so delivered shall be
in such denominations as may be specified by the Warrantholder and shall be
issued in the name of the Warrantholder or, if permitted by Section 5 and in
accordance with the provisions thereof, such other name as shall be designated
in the Subscription Form. The Warrantholder shall be deemed to be the holder of
record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to the Warrantholder. If at the time this Warrant is
exercised, a registration statement is not in effect to register under the
Securities Act the Warrant Shares issuable upon exercise of this Warrant, the
Company may require the Warrantholder to make such customary representations and
deliver such customary opinions of counsel, and may place such customary legends
on certificates representing the Warrant Shares, as may be reasonably required
in the opinion of counsel to the Company to permit the Warrant Shares to be
issued without such registration.
(c) If this Warrant shall have been exercised only in part, the Company
shall, at the time of delivery of the certificates for the Warrant Shares,
deliver to the Warrantholder a new Warrant evidencing the rights to purchase the
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remaining Warrant Shares, which new Warrant shall in all other respects be
identical with this Warrant. No adjustments or payments shall be made on or in
respect of Warrant Shares issuable on the exercise of this Warrant for any
regular cash dividends paid or payable to holders of record of Common Stock
prior to the date as of which the Warrantholder shall be deemed to be the record
holder of such Warrant Shares.
1.2 Limitation on Exercise. If this Warrant is not exercised prior to
----------------------
5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Saturday, Sunday or a day on which the New York Stock
Exchange is authorized to close or on which the Company is otherwise closed for
business (a "Nonbusiness Day"), this Warrant, or any new Warrant issued pursuant
to Section 1.1, shall cease to be exercisable and shall become void and all
rights of the Warrantholder hereunder shall cease. This Warrant shall not be
exercisable and no Warrant Shares shall be issued hereunder prior to 9:00 a.m.
New York City time on the Initial Exercise Date. In addition, this Warrant shall
not be exercisable at any time that the lender under that certain Senior Loan
Agreement dated as of April 4, 1996 by and between the Company and the initial
holder of this Warrant (as the same has been or hereafter may be amended, the
"Loan Agreement") shall be in material breach of its obligations thereunder or
at any time after a permissible termination of the Loan Agreement resulting
directly from a material breach by such lender thereunder.
1.3 Payment of Exercise Price. Payment of the Exercise Price pursuant to
-------------------------
Section 1.1(a) shall be made to the Company in cash; by certified or official
bank check payable in United States dollars to the order of the Company; or by
any combination of the foregoing.
1.4 Payment of Taxes. The issuance of certificates for Warrant Shares
----------------
shall be made without charge to the Warrantholder for any stock transfer or
other issuance tax in respect thereto; provided, however, that the Warrantholder
shall be required to pay any and all taxes which may be payable in respect to
any transfer involved in the issuance and delivery of any certificates for
Warrant Shares in a name other than that of the then Warrantholder as reflected
upon the books of the Company.
SECTION 2. Reservation and Listing of Shares, Etc.
---------------------------------------
All Warrant Shares which are issued upon the exercise of the
rights represented by this Warrant shall, upon issuance and payment of the
Exercise Price, be validly issued, fully paid and nonassessable without any
preemptive rights, and free from all taxes, liens, security interests, charges
and other encumbrances with respect to the issue thereof other than taxes in
respect of any transfer occurring contemporaneously with such issue. During the
period within which this Warrant may be exercised, the Company shall at all
times have authorized and reserved, and keep available and free from preemptive
rights, and free from all taxes, liens, security interests, charges and other
encumbrances with respect to the issue thereof, a sufficient number of shares of
Common Stock to provide for the exercise of this Warrant, and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the exercise of this Warrant, in addition to such other remedies as
shall be available to a Warrantholder, the Company will take such corporate
action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purposes. In addition, prior to the issuance of any
Warrant Shares, the Company shall at its expense procure the listing of the
Warrant Shares (or any other issues of capital stock issuable upon the exercise
of this Warrant if such other class of capital stock is then so listed) which
shall be issued upon exercise of this Warrant (subject to official notice of
issuance) as then may be required on all stock exchanges or interdealer
quotation systems on which the Common Stock is then listed and shall maintain
Page 27 of 45 Pages
such listing if and so long as any shares of the same class shall be listed on
such stock exchanges or interdealer quotation systems. The Company shall, from
time to time, take all such action as may be required to assure that the par
value per share of the Warrant Shares is at all times equal to or less than the
then effective Exercise Price.
SECTION 3. Exchange, Loss or Destruction of Warrant.
----------------------------------------
If permitted by Section 5 and in accordance with the provisions thereof,
upon surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and, in the case of loss, theft or destruction, of such bond or
indemnification as the Company may reasonably require, and, in the case of such
mutilation, upon surrender and cancellation of this Warrant, the Company will
execute and deliver a new Warrant of like tenor. The term "Warrant" as used
herein includes any Warrants issued in substitution or exchange of this Warrant.
SECTION 4. Ownership of Warrant; Certain Rights of Warrantholders.
-------------------------------------------------------
(a) The Company may deem and treat the person in whose name this Warrant
is registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer as provided in
subsection 1.1, Section 3 or Section 5.
(b) Nothing contained in this Warrant shall be construed as conferring
upon the Warrantholder or its transferees the right to vote or to receive
dividends or to consent or to receive notice as a stockholder in respect of any
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meeting of stockholders for the election of directors of the Company or of any
other matter, or any rights whatsoever as stockholders of the Company. The
Company shall give notice to the Warrantholder by registered mail if at any time
prior to the expiration or exercise in full of the Warrants, any of the
following events shall occur:
(i) the Company shall authorize the payment of any dividend
payable in any securities upon shares of Common Stock or authorize the making of
any distribution (other than a regular cash dividend paid out of net profits
legally available therefor) to all holders of Common Stock;
(ii) the Company shall authorize the issuance to all holders of
Common Stock of any additional shares of Common Stock or securities that are
convertible into or exercisable for shares of Common Stock ("Common Stock
Equivalents") or of rights, options or warrants to subscribe for or purchase
Common Stock or Common Stock Equivalents or of any other subscription rights,
options or warrants;
(iii) a dissolution, liquidation or winding up of the Company; or
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(iv) a capital reorganization or reclassification of the Common
Stock (other than a subdivision or combination of the outstanding Common Stock
and other than a change in the par value of the Common Stock) or any
consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or change of Common
Stock outstanding) or in the case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety or a tender offer or exchange offer for shares of Common Stock.
Such giving of notice shall be initiated at least 20 days prior
to the date fixed as a record date or effective date or the date of closing of
the Company's stock transfer books for the determination of the stockholders
entitled to such dividend, distribution, issuance or subscription rights, or for
the determination of the stockholders entitled to vote on such proposed merger,
consolidation, sale, conveyance, dissolution, liquidation or winding up or to
participate in such tender or exchange offer. Such notice shall specify (A) the
date as of which the holders of record of shares of Common Stock to be entitled
to receive any such rights, options, warrants or distribution are to be
determined, or (B) the initial expiration date set forth in any tender offer or
exchange offer for shares of Common Stock or any securities convertible into or
exchangeable for Common Stock, or (C) the date on which any such reorganization,
reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding up is expected to become effective or consummated, and
the date as of which it is expected that holders of record of shares for
securities or other property, if any, deliverable upon such reorganization,
reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding up. Failure to provide such notice shall not affect the
Page 29 of 45 Pages
validity of any action taken in connection with such dividend, distribution,
issuance or subscription rights, or proposed merger, consolidation, sale,
conveyance, tender offer, exchange offer, dissolution, liquidation or winding
up.
SECTION 5. Split-Up, Combination, Exchange and Transfer of Warrants.
--------------------------------------------------------
(a) Subject to the provisions of Section 5(b), this Warrant may be split
up, combined or exchanged for another Warrant or Warrants containing the same
terms to purchase a like aggregate number of Warrant Shares. If the
Warrantholder desires to split up, combine or exchange this Warrant, he, she or
it shall make such request in writing delivered to the Company and shall
surrender to the Company this Warrant and any other Warrants to be so split up,
combined or exchanged. Upon any such surrender for a split up, combination or
exchange, the Company shall execute and deliver to the person entitled thereto a
Warrant or Warrants, as the case may be, as so requested. The Company shall not
be required to effect any split up, combination or exchange which will result in
the issuance of a warrant entitling the Warrantholder to purchase upon exercise
a fraction of a share of Common Stock or a fractional Warrant. The Company may
require such Warrantholder to pay a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any split up,
combination or exchange of Warrants.
(b) Neither this Warrant not the Warrant Shares may be transferred,
disposed of or encumbered (any such action, a "Transfer") except in accordance
with and subject to the provisions of the Securities Act, any applicable state
securities laws and the rules and regulations promulgated thereunder. If at the
time of a Transfer, a registration statement is not in effect to register this
Warrant or the Warrant Shares, the Company may require the Warrantholder to make
such customary representations and deliver such customary opinions of counsel,
and may place such customary legends on certificates representing this Warrant,
as may be reasonably required in the opinion of counsel to the Company to permit
a Transfer without such registration.
SECTION 6. Adjustments of Exercise Price and Number of Warrant Shares
-------------------------------------------------------------
Issuable. The Exercise Price and the number of Warrant Shares issuable upon the
--------
exercise of this Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 6. For purposes of this
Section 6, "Common Stock" means the Common Stock and any other capital stock of
the Company, however designated, for which the Warrants may be exercisable.
(a) Adjustment for Change in Capital Stock.
If the Company:
(i) pays a dividend or makes a distribution on its Common Stock
in shares of its Common Stock;
Page 30 of 45 Pages
(ii) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(iii) combines its outstanding shares of Common Stock into a
smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
(v) issues by reclassification of its Common Stock any shares of
its capital stock,
then the Exercise Price and the number and kind of shares of capital stock of
the Company issuable upon the exercise of this Warrant (as in effect immediately
prior to such action) shall be proportionately adjusted so that the
Warrantholder may receive, upon exercise of this Warrant, the aggregate number
and kind of shares of capital stock of the Company which he would have owned
immediately following such action if this Warrant had been exercised immediately
prior to such action.
The adjustment shall become effective immediately after the record
date, subject to subsection (n) of this Section 6, in the case of a dividend or
distribution and immediately after the effective date in the case of a
subdivision, combination or reclassification.
If after an adjustment, a Warrantholder shall be entitled to receive
shares of two or more classes or series of capital stock of the Company upon
exercise of this Warrant, the Company shall determine the allocation of the
adjusted Exercise Price between the classes or series of capital stock. After
such allocation, the exercise privilege and the Exercise Price of each class or
series of capital stock shall thereafter be subject to adjustment on terms
comparable to those applicable to Common Stock in this Section 6.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) Adjustment for Rights Issue. If the Company distributes any
-----------------------------
rights, options or warrants to all holders of its Common Stock entitling them
for a period expiring within 60 days after the record date mentioned below to
purchase shares of Common Stock or securities convertible into or exercisable or
exchangeable for shares of Common Stock at a price per share less than the
current market price per share (including, in the case of securities convertible
into or exercisable or exchangeable for shares of Common Stock, the
consideration payable for such convertible, exercisable or exchangeable security
and the minimum consideration per share payable upon the conversion, exercise or
exchange of such security into or for Common Stock) on that record date, the
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Exercise Price shall be adjusted in accordance with the following formula:
O + N x P
-----
E' = E x M
-----
O + N
where:
E'= the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on the
record date.
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
M = the current market price per share of Common Stock on
the record date.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the Exercise Price shall be immediately readjusted to
what it would have been if "N" in the above formula had been the number of
shares actually issued.
(c) Adjustment for Other Distributions. If the Company distributes to
----------------------------------
all holders of its Common Stock any of its assets or debt securities or any
rights or warrants to purchase debt securities, assets or other securities of
the Company, the Exercise Price shall be adjusted in accordance with the
following formula:
E' = E x M - F
-----
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
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M = the current market price per share of Common Stock on
the record date mentioned in the immediately succeeding
paragraph.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of
Common Stock. The Board of Directors shall determine the
fair market value.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
This subsection (c) does not apply to:
(i) rights, options or warrants referred to in subsection (b) of
this Section 6, or
(ii) cash dividends or cash distributions paid out of
consolidated current or retained earnings as shown on the books of the Company
prepared in accordance with generally accepted accounting principles other than
any Extraordinary Cash Dividend (as defined below). An "Extraordinary Cash
Dividend" shall be that portion, if any, of the aggregate amount of all cash
dividends paid in any fiscal year which exceeds $25 million. In all cases, the
Company shall give the Warrant holders at least 30 days notice of a record date
for any dividend payment on its Common Stock.
(d) Adjustment for Common Stock Issue. If the Company issues shares of
---------------------------------
Common Stock for a consideration per share less than the current market price
per share on the date the Company fixes the offering price of such additional
shares, the Exercise Price shall be adjusted in accordance with the formula:
P
-
E' = E x O + M
-----
A
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to
the issuance of such additional shares.
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P = the aggregate consideration received for the issuance of
such additional shares.
M = the current market price per share on the date the
Company fixes the offering price of such additional
shares.
A = the number of shares outstanding immediately after the
issuance of such additional shares.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to:
(i) any of the transactions described in subsections (a), (b)and
(c) of this Section 6,
(ii) the conversion, exercise or exchange of securities
convertible or exchangeable for Common Stock,
(iii) Common Stock issuable upon the exercise of rights or
warrants issued to the holders of Common Stock,
(iv) Common Stock issued to shareholders of any person which
merges into the Company in proportion to their stock holdings of such person
immediately prior to such merger, upon such merger,
(v) Common Stock issued in a bona fide public offering pursuant
to a firm commitment underwriting, or
(vi) Common Stock issued in a bona fide private placement through
a placement agent which is a member firm of the National Association of
Securities Dealers, Inc. (except to the extent that any discount from the
current market price attributable to restrictions on transferability of the
Common Stock, as determined in good faith by the Board of Directors and
described in a Board resolution which shall be filed with the Warrant Agent,
shall exceed 20%).
Page 34 of 45 Pages
(e) Adjustment for Convertible Securities Issue. If the Company
---------------------------------------------
issues any securities convertible into or exercisable or exchangeable for Common
Stock (other than securities issued in transactions described in subsections
(a), (b) and (c) of this Section 6) for a consideration per share (including the
minimum consideration per share payable upon conversion, exercise or exchange of
any securities convertible into or exercisable or exchangeable for Common Stock)
of Common Stock initially deliverable upon conversion, exercise or exchange of
such securities less than the current market price per share on the date the
Company fixes the offering price of such securities, the Exercise Price shall be
adjusted in accordance with this formula:
P
-
E' = E x O + M
-----
O + D
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to
the issuance of such securities.
P = the aggregate consideration received for the issuance of
such securities.
M = the current market price per share on the date the
Company fixes the offering price of such securities.
D = the maximum number of shares deliverable upon conversion
or exercise of or in exchange for such securities at the
initial conversion, exercise or exchange rate.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion, exercise
or exchange of such securities has not been issued when such securities are no
longer outstanding, then the Exercise Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such securities been made on the basis of the actual number of
shares of Common Stock issued upon conversion, exercise or exchange of such
securities.
Page 35 of 45 Pages
This subsection (e) does not apply to:
(i) convertible, exercisable or exchangeable securities
issued to shareholders of any person which merges into the Company, or with a
subsidiary of the Company, in proportion to their stock holdings of such person
immediately prior to such merger, upon such merger,
(ii) convertible, exercisable or exchangeable securities
issued in a bona fide public offering pursuant to a firm commitment underwriting
or pursuant to agreements in effect on the date of issuance of this Warrant,
(iii) convertible, exercisable or exchangeable securities
issued in a bona fide private placement through a placement agent which is a
member firm of the National Association of Securities Dealers, Inc. (except to
the extent that any discount from the current market price attributable to
restrictions on transferability of Common Stock issuable upon conversion, as
determined in good faith by the Board of Directors and described in a Board
resolution which shall be filed with the Trustee, shall exceed 20% of the then
current market price) or
(iv) stock options issued to the Company's directors,
officers or employees.
(f) Adjustment for Tender or Exchange Offer. If the Company or
any Subsidiary of the Company consummates a tender or exchange offer for all or
any portion of the Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, to the extent that the cash and
value of any other consideration included in such payment per share of Common
Stock (determined on an as-converted basis in the case of any such convertible,
exercisable or exchangeable securities so tendered or exchanged) exceeds the
average of the Quoted Prices (as defined in subsection (g) of this Section 6) of
the Common Stock for the five consecutive trading days (the "Adjustment Period")
commencing on the first trading day (such trading day, the "First Trading Day")
immediately following the last time tenders or exchanges may be made pursuant to
such tender or exchange offer (the "Expiration Time"), the Exercise Price shall
be adjusted in accordance with this formula:
E' = E x O x M
-------------
P + (A x M)
E'= the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding immediately
prior to the Expiration Time, including, in the case of any
tender or exchange offer in respect of securities
convertible into or exercisable or exchangeable for Common
Stock, any shares of Common Stock issuable upon the
conversion, exercise or exchange of such securities.
Page 36 of 45 Pages
M = the average of the Quoted Prices (as defined in subsection
(g) of this Section 6) of the Common Stock for the
Adjustment Period.
P = the aggregate cash consideration and the fair market value
of any non-cash consideration payable to stockholders based
on the number of shares of Common Stock (or securities
convertible into or exercisable or exchangeable for Common
Stock) tendered or exchanged (and not withdrawn) in
connection with the tender or exchange offer and accepted by
the Company. The Board of Directors shall determine the fair
market value of any non-cash consideration.
A = the number of shares of Common Stock outstanding at the time
of acceptance by the Company of any shares of Common Stock
(or securities convertible into or exercisable or
exchangeable for Common Stock) so tendered or exchanged and
accepted by the Company, including, in the case of any
tender or exchange offer in respect of securities
convertible into or exercisable or exchangeable for Common
Stock, any shares of Common Stock issuable upon the
conversion, exercise or exchange of such securities.
The adjustment shall be made successively whenever any such
tender or exchange offer is made. To the extent a Warrant holder exercises such
holder's Warrant(s) prior to the conclusion of the Adjustment Period, any
adjustment in the number of Warrant Shares issuable upon exercise of such
Warrant(s) shall be for the benefit of the holder of record of such Warrant(s)
at the close of trading on the First Trading Day.
This subsection (f) does not apply to redemptions of securities
pursuant to redemption provisions contained in the certificate of designation
pertaining to such securities in effect at the time such securities were issued,
whether such redemptions are optional or mandatory.
(g) Current Market Price. In subsections (b), (c), (d) and (e) of
--------------------
this Section 6, the current market price per share of Common Stock on any date
is the average of the Quoted Prices of the Common Stock for 30 consecutive
trading days commencing 45 trading days before the date in question. The "Quoted
Price" of the Common Stock is the last reported sales price of the Common Stock
on any national securities exchange on which the Common Stock is listed which
Page 37 of 45 Pages
shall be for consolidated trading if applicable to such exchange, or if not so
listed, the last reported bid price of the Common Stock. In the absence of one
or more such quotations, the Board of Directors of the Company shall determine
the current market price on such basis as it in good faith considers
appropriate.
(h) Consideration Received. For purposes of any computation
-----------------------
respecting consideration received pursuant to subsections (d) and (e) of this
Section 6, the following shall apply:
(i) in the case of the issuance of shares of Common Stock
for cash, the consideration shall be the amount of such cash, provided that in
no case shall any deduction be made for any commissions, discounts or other
expenses incurred by the Company for any underwriting of the issue or otherwise
in connection therewith;
(ii) in the case of the issuance of shares of Common Stock
for a consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair market value thereof as determined in
good faith by the Company's Board of Directors (irrespective of the accounting
treatment thereof), whose determination shall be conclusive and described in a
Board resolution; and
(iii) in the case of the issuance of securities convertible
into or exercisable or exchangeable for shares, the aggregate consideration
received therefor shall be deemed to be the consideration received by the
Company for the issuance of such securities plus the additional minimum
consideration, if any, to be received by the Company upon the conversion,
exercise or exchange thereof (the consideration in each case to be determined in
the same manner as provided in clauses (i) and (ii) of this subsection).
(j) When De Minimis Adjustment May Be Deferred. No adjustment in
------------------------------------------
the Exercise Price need be made unless the adjustment would require an increase
or decrease of at least 1% in the Exercise Price. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Section 6 shall be made to the
nearest cent or to the nearest 1/100th of a share, as the case may be.
(k) When No Adjustment Required. No adjustment need be made for a
---------------------------
transaction referred to in subsections (a), (b),(c), (d), (e) or (f) of this
Section 6 if Warrant holders are to participate in the transaction on a basis
and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock
participate in the transaction.
Page 38 of 45 Pages
No adjustment need be made for (i) a transaction referred to in
subsections (b), (d) or (e) of this Section 6 if the below market portion of
such issuances, taken together with the below market portions all other
issuances and with the above market portions of all tender or exchange offers
described in clause (ii) of this paragraph made on and after the date of this
Agreement, is less than 2.0% of the Total Market Capitalization of the Company
(determined by reference to the sum of the percentages of Total Market
Capitalization of the Company attributable to each such transaction on the date
thereof) and (ii) a transaction referred to in subsection (f) of this Section 6
if the above market portion of such tender or exchange offers, taken together
with the above market portions of all other tender or exchange offers and with
the below market portions of all issuances described in clause (i) of this
paragraph made on or after the date of this Agreement, is less than 2.0% of the
Total Market Capitalization of the Company (determined by reference to the sum
of the percentages of Total Market Capitalization of the Company attributable to
each such transaction on the date thereof). For purposes of this Agreement, the
Total Market Capitalization of the Company shall mean as of any day of
determination, the sum of (a) the consolidated indebtedness of the Company and
its subsidiaries on such day plus (b) the product of (i) the Company's aggregate
number of outstanding primary shares of Common Stock on such day (which shall
not include any options or warrants on, or securities convertible or
exchangeable into, shares of Common Stock other than, any shares of preferred
stock of the Company, that, as of the day of determination, cannot, pursuant to
the terms thereof as in effect on the date of this Warrant, be required to be
redeemed by the Company in cash), and (ii) the average closing price of such
Common Stock over the 20 consecutive trading days immediately preceding such
day, plus (c) the liquidation value of any outstanding shares of preferred stock
of the Company on such day. If no such closing price exists with respect to
shares of any such class, the value of such shares for purposes of clause (b)
for the preceding sentence shall be determined by the Company's Board of
Directors in good faith.
No adjustment need be made for a change in the par value, or from
par value to no par value, or from no par value to par value, of the Common
Stock.
To the extent the Warrants become convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
(l) Voluntary Reduction. The Company from time to time may, as
--------------------
the Board of Directors deems appropriate, reduce the Exercise Price by any
amount for any period of time if the period is at least 20 days and if the
reduction is irrevocable during the period; provided that in no event may the
Exercise Price be less than the par value of a share of Common Stock.
Whenever the Exercise Price is reduced, the Company shall mail to
Warrant holders a notice of the reduction. The Company shall mail the notice at
least 15 days before the date the reduced Exercise Price takes effect. The
notice shall state the reduced Exercise Price and the period it will be in
effect.
Page 39 of 45 Pages
A voluntary reduction of the Exercise Price pursuant to this
Section 6(k), other than a reduction which the Company has irrevocably committed
will be in effect for so long as any Warrants are outstanding, does not change
or adjust the Exercise Price otherwise in effect for purposes of subsections
(a), (b), (c), (d), (e) and (f) of this Section 6.
(m) Reorganization of the Company.
-----------------------------
(i) If the Company consolidates or merges with or into, or
transfers or leases all or substantially all its assets to, any person, upon
consummation of such transaction this Warrant shall automatically become
exercisable for the kind and amount of securities, cash or other assets which
the holder of a Warrant would have owned immediately after the consolidation,
merger, transfer or lease if the holder had exercised the Warrant immediately
before the effective date of the transaction. Concurrently with the consummation
of such transaction, the corporation formed by or surviving any such
consolidation or merger if other than the Company, or the person to which such
sale or conveyance shall have been made (any such person, the "Successor
Entity"), shall enter into a supplemental agreement so providing and further
providing for adjustments which shall be as nearly equivalent as may be
practical to the adjustments provided for in this Section 6. The Successor
Entity shall mail to the Warrant holder a notice describing the supplemental
agreement. If the issuer of securities deliverable upon exercise of this Warrant
under the supplemental agreement is an affiliate of the formed, surviving,
transferee or lessee corporation, that issuer shall join in the supplemental
agreement.
(ii) If this subsection (l) applies, subsections (a), (b),
(c), (d), (e) and (f) of this Section 6 do not apply.
(m) Company Determination Final. Any determination that the
-----------------------------
Company or the Board of Directors must make pursuant to subsection (a), (c),
(d), (e), (f), (g), (h) or (j) of this Section 6 may be challenged in good faith
by Warrantholders that hold Warrants entitling them to purchase at least 50% of
the Warrant Shares (the "Majority Warrantholders") by providing the Company
written notice of such challenge within ten (10) business days of the Company
providing Warrantholders notice of such determination. Any such challenge shall
be resolved by an investment banking firm selected by the Company and reasonably
acceptable to the Majority Warrantholders, which resolution shall be conclusive
and binding on the Company and the Warrantholders.
(n) When Issuance or Payment May Be Deferred. In any case in
--------------------------------------------
which this Section 6 shall require that an adjustment in the Exercise Price be
made effective as of or immediately after a record date for a specified event,
the Company may elect to defer until the occurrence of such event (i) issuing to
the holder of any Warrant exercised after such record date the Warrant Shares
and other capital stock of the Company, if any, issuable upon such exercise over
and above the Warrant Shares and other capital stock of the Company, if any,
Page 40 of 45 Pages
issuable upon such exercise on the basis of the Exercise Price prior to such
adjustment and (ii) paying to such holder any amount in cash in lieu of a
fractional share pursuant to Section 7.8 hereof; provided that the Company shall
deliver to such holder a due bill or other appropriate instrument evidencing
such holder's right to receive such additional Warrant Shares, other capital
stock and cash upon the occurrence of the event requiring such adjustment.
(o) Adjustment in Number of Shares. Upon each adjustment of the
------------------------------
Exercise Price pursuant to this Section 6, this Warrant shall thereafter
evidence the right to receive upon payment of the adjusted Exercise Price that
number of shares of Common Stock (calculated to the nearest hundredth) obtained
from the following formula:
N' = N x E
-
E'
where:
N' = the adjusted number of Warrant Shares issuable upon exercise
of a Warrant by payment of the adjusted Exercise Price.
N = the number of Warrant Shares previously issuable upon
exercise of this Warrant by payment of the Exercise Price
prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(p) Certificate as to Adjustments. Upon the occurrence of each
------------------------------
adjustment or readjustment of the Exercise Price or number of Warrant Shares
issuable upon exercise hereof pursuant to this Section 6, the Company, at its
expense, shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and prepare and furnish to each Warrantholder a
certificate prepared by the Company (or by a firm of independent public
accountants of recognized standing selected by the Board of Directors of the
Company (who may be the regular auditors of the Company) if such accountants are
required to deliver a similar certificate pursuant to Section 18(a) of that
certain Warrant Agreement dated as of June 30, 1995 by and between the Company
and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as Warrant Agent) setting forth such
adjustment or readjustment and showing in reasonable detail the method of
calculation and the facts upon which such adjustment or readjustment is based.
The Company shall, upon the written request at any time of any Warrantholder,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) such adjustment and readjustment, (ii) the Exercise Price at the time in
effect, and (iii) the number of shares of Common Stock and the amount, if any,
Page 41 of 45 Pages
of other property which at the time would be received upon the exercise of this
Warrant.
SECTION 7. Miscellaneous.
-------------
7.1 Entire Agreement. This Warrant constitutes the entire agreement
-----------------
between the Company and the Warrantholder with respect to this Warrant and
Warrant Shares.
7.2 Binding Effects; Benefits. This Warrant shall inure to the benefit
-------------------------
of and shall be binding upon the Company, the Warrantholder and holders of
Warrant Shares and their respective heirs, legal representatives, successors and
assigns. Nothing in this Warrant, expressed or implied, is intended to or shall
confer on any person other than the Company, the Warrantholder and holders of
Warrant Shares, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant or the Warrant Shares.
7.3 Amendments and Waivers. This Warrant may not be modified or
------------------------
amended except by an instrument in writing signed by the Company and the
Majority Warrantholders. The Company, any Warrantholder or holders of Warrant
Shares may, by an instrument in writing, waive compliance by the other party
with any term or provision of this Warrant on the part of such other party
hereto to be performed or complied with. The waiver by any such party of a
breach of any term or provision of this Warrant shall not be construed as a
waiver of any subsequent breach.
7.4 Section and Other Headings. The section and other headings
----------------------------
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 Further Assurances. Each of the Company, the Warrantholders and
-------------------
holders of Warrant Shares shall do and perform all such further acts and things
(including, without limitation, any required filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended) and execute and deliver all such
other certificates, instruments and/or documents (including without limitation,
such proxies and/or powers of attorney as may be necessary or appropriate) as
any party hereto may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this Warrant.
7.6 Notices. All demands, requests, notices and other communications
-------
required or permitted to be given under this Warrant shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
United States certified or registered first class mail, postage prepaid, to the
parties hereto at the following addresses or at such other address as any party
hereto shall hereafter specify by notice to the other party hereto:
Page 42 of 45 Pages
if to the Company, addressed to:
Geotek Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
if to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person appearing on the books of the
Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third business day after the mailing
thereof.
7.7 Separability. Any term or provision of this Warrant which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 Fractional Shares. No fractional shares or scrip representing
------------------
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with Section 1.1(a)(ii)) of a share of such stock as of the date of such
exercise.
7.9 Rights of the Holder. The Warrantholder shall not, solely by
---------------------
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 Governing Law; Jurisdiction.
---------------------------
This Warrant shall be governed by and construed in
accordance with the laws of the State of New York, without regard to such
State's internal conflicts of laws principles.
(a) Jurisdiction. With respect to any suit, action or preceding
------------
relating to this Warrant, the Company irrevocably (i) submits to the
non-exclusive jurisdiction of the courts in the State of New York and the United
States District court located in the Borough of Manhattan in New York City; and
(ii) waives any objection which it may have at any time to the laying of venue
of any such suit, action or proceeding brought in any such court, waives any
claim that any such suit, action or proceeding has been brought in an
Page 43 of 45 Pages
inconvenient forum and further waives the right to object with respect to any
such suit, action or proceeding that such court does not have any jurisdiction
over it.
(b) Nothing contained in this Section 7.10 shall limit or impair the
right of a Warrantholder to institute any suit, action, motion or proceeding in
any other court of competent jurisdiction, nor shall the taking of any suit,
action or proceeding in one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
(c) Service of Process. The Company irrevocably appoints the following
------------------
process agent to receive, for it and on its behalf, service of process in any
suit, action or proceeding relating to this Warrant: CT Corporation System, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. If for any reason the Company's process
agent is unable to act as such, the Company will promptly notify the
Warrantholders and within thirty (30) days appoint a substitute process agent
acceptable to the Majority Warrantholders. Nothing in this Agreement will affect
the right of a Warrantholder to serve process in any other manner permitted by
law.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer.
GEOTEK COMMUNICATIONS, INC.
By:_______________________________________
Name:
Title:
Dated: April 22, 1997
Page 44 of 45 Pages
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, ____________________ hereby sells, assigns
and transfers unto _____________________ the within Warrant Certificate,
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint _________________ attorney, to transfer said Warrant
Certificate on the books of the within-named Company with respect to the number
of Warrants set forth below, with full power of substitution in the premises:
Name(s) of
Assignee(s) Address No. of Warrant Shares
----------- ------- ---------------------
And if said number of Warrants shall not be all the Warrants represented by the
Warrant Certificate, a new Warrant Certificate is to be issued in the name of
said undersigned for the balance remaining of the Warrants represented by said
Warrant Certificate.
Dated: ________________, 19___
------------------------------------------
Note: The above signature should correspond exactly with the name on the face of
this Warrant Certificate.
Page 45 of 45 Pages
SUBSCRIPTION FORM
(To be executed upon exercise of Warrant
pursuant to Section 1.1(a))
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, shares of Common Stock, as provided for therein, and delivers
payment in full of the Exercise Price in the amount of $ __________ as follows:
Cash $
-------------
Certified or Official bank check $
-------------
Please issue a certificate or certificates for such Common Stock in
the name of, and pay any cash for any fractional share to:
Name: ______________________________________
Address: ______________________________________
Social Security No.: ______________________________________
(Please Print Name, Address and Social Security No.)
Signature:
----------------------------------------
NOTE: The above signature should correspond exactly with the name on the first
page of this Warrant Certificate or with the name of the assignee appearing in
the assignment form delivered herewith.
And if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder rounded up to the next higher number of shares.