Exhibit 4.5
SERIES B
COMMON STOCK PURCHASE WARRANT
OF
AQUIS COMMUNICATIONS GROUP, INC.
Aquis Communications Group, Inc., a Delaware corporation (the
"Company"), hereby agrees that, for value received, DESERT COMMUNICATIONS I,
LLC, a Delaware limited liability company ("Desert"), or its assigns, is
entitled, subject to the terms set forth herein, to purchase from the Company at
any time or from time to time upon the occurrence of a Trigger Event and subject
to Section 2(e) hereof and before the Expiration Time (as defined below),
22,394,842 shares of Common Stock, subject to adjustment in the number of such
shares as set forth herein, at a price per share of $0.01.
1. Definitions. The following terms when used in this Warrant will have the
following meanings:
"Act" shall mean the United States Securities Act of 1933, as amended.
"AMRO Agreement" shall mean that certain Agreement, dated July 1, 2002, by
and between the Company and AMRO International S.A.
"Common Stock" is the authorized common shares of the Company, $0.01 par
value per share.
"Exercise Price" shall mean $0.01 per share of Common Stock, subject to
adjustment as provided in this Warrant.
"Expiration Time" shall mean the earlier of (x) 5:00 p.m., New York time,
on August 12, 2012, and (y) the time upon which the Company fully repays
(from sources other than refinancing, except in the amount of the Tranche
A Note then outstanding with payment terms similar to the Tranche A Note)
all of its obligations under and pursuant to the Tranche A Note prior to
the occurrence of a Trigger Event.
"FINOVA" shall mean FINOVA Capital Corporation, a Delaware corporation.
"Holder" is the registered holder of this Warrant.
"Registration Statement" shall mean a registration statement filed under
the Act.
"Restructuring Loan Agreement" shall mean that certain Second Amended and
Restated Loan Agreement, dated August 12, 2002, by and between Aquis
Wireless Communications, Inc., a Delaware corporation and wholly owned
subsidiary of the Company, and FINOVA.
"Sale Transaction" shall mean the sale of all or substantially all of the
assets or capital stock of the Company, or the merger, consolidation or
reorganization of the Company.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities" are all or any part of the Common Stock purchased by the
Holder or purchasable by the Holder upon the exercise of the Warrant.
"Tranche A Note" shall mean that certain senior secured promissory note in
principal amount of $7,000,000 issued by the Company to FINOVA on August
12, 2002.
"Trigger Event" shall mean the first to occur of (w) a Sale Transaction,
(x) the sale of in excess of 50% of the capital stock of the Company, (y)
a default by the Company under the Restructuring Loan Agreement or under
the AMRO Agreement, or (z) September 30, 2005.
"Warrant" shall mean the warrant evidenced by this document.
"Warrant Shares" shall mean the shares of Common Stock issuable upon
exercise of this Warrant.
2. Exercise of Warrant.
(a) Except as provided for in Section 2(b) hereof, the purchase rights
exercisable under this Warrant shall be exercised by the Holder
surrendering this Warrant with the form of subscription attached
hereto duly executed by such ▇▇▇▇▇▇, to the Company at its principal
office, accompanied by payment, in cash or by certified or cashier's
check payable to the order of the Company, of the purchase price
payable in respect of the Common Stock being purchased, and
accompanied by any other document reasonably required by the Company
to be executed by ▇▇▇▇▇▇ acknowledging the applicable restrictions
on the transfer of the Common Stock being purchased as set forth in
Section 11 hereof. Such duly executed subscription shall constitute
the Holder's acknowledgment of and undertaking to comply to the
satisfaction of the Company and its counsel, acting reasonably, with
all applicable laws and all rules, regulations and policies of each
stock exchange upon which the Common Stock may from time to time be
listed or traded and of any other applicable regulatory authorities.
(b) At the option of Holder, this Warrant may be exercised, at any time
or from time to time, in the following "cashless exercise"
transactions:
(i) The Holder shall have the right to convert, in whole or in
part, the Warrants (the "Conversion Right") at any time prior
to the Expiration Date, into shares of Common Stock in
accordance with the provisions of this paragraph by the Holder
tendering to the Company written notice of exercise of such
Conversion Right together with delivery of this Warrant to the
Company. All documentation and procedures to be followed in
connection with such "cashless exercise" shall be approved in
advance by the Company, which approval shall be expeditiously
provided and not unreasonably withheld.
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(ii) Upon written notice of exercise of such Conversion Right from
the Holder to the Company that the Holder is exercising this
Warrant in whole or in part and as consideration of such
exercise is authorizing the Company to withhold from issuance
a number of shares of Common Stock issuable upon exercise of
this Warrant, the Company shall deliver to the Holder (without
payment by the Holder of the aggregate Purchase Price) that
number of shares of Common Stock equal to the quotient
obtained by dividing (x) the Spread Value by (y) the Fair
Market Value of one share of Common Stock immediately prior to
the exercise of the Conversion Right. The shares withheld by
the Company shall no longer be issuable under this Warrant.
(iii) Fair Market Value of a share of Warrant Shares as of a
particular date (the "Determination Date") shall mean:
a. If the Warrant Shares are principally traded on a U.S.
exchange or are quoted on the Nasdaq National Market or
the Nasdaq SmallCap Market ("Nasdaq"), then the average
of the closing or last sale price, respectively,
reported for the five trading days during which there as
any trading activity in the Warrant Shares immediately
preceding the Determination Date.
b. If the Warrant Shares are not traded on an exchange or
on Nasdaq but are traded in the over-the-counter market
or other similar organization (including the OTC
Bulletin Board), then the average of the closing bid and
ask prices reported for the five trading days during
which there as any trading activity in the Warrant
Shares immediately preceding the Determination Date.
c. If the Warrant Shares are not traded as provided above,
then the price determined in good faith by the Board of
Directors of the Company, provided that (A) the basis or
bases of each such determination shall be set forth in
the corporate records of the Company pertaining to
meetings and other actions of such board and (B) such
records are available to the Holder for inspection
during normal business hours of the Company upon the
giving of reasonable prior notice.
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d. If the Determination Date is the date of a liquidation,
dissolution or winding up, or any event deemed to be a
liquidation, dissolution or winding up pursuant to the
Company's certificate of incorporation, then all amounts
to be payable per share to Holders of the securities
then comprising Warrant Shares pursuant to the charter
in the event of such liquidation, dissolution or winding
up, plus all other amounts to be payable per share in
respect of the Warrant Shares in liquidation under the
certificate of incorporation, assuming for the purposes
of this clause (d) that all of the shares of Warrant
Shares then issuable upon exercise of all of the
Warrants are outstanding at the Determination Date.
(iv) The term "Spread Value" shall mean (i) the number of shares
exercised at a given time multiplied by the Fair Market Value
of one share of Common Stock, less (ii) aggregate applicable
Exercise Price.
(c) In case of the purchase of less than all the Common Stock
purchasable under this Warrant, the Warrant shall remain
exercisable in respect of the balance of the Common Stock on
the terms and conditions set forth herein. Alternatively, if
less than all of the Common Stock purchasable under this
Warrant is purchased, the Company may, upon such exercise,
execute and deliver to the Holder a new Warrant (dated the
date thereof but otherwise containing terms identical to this
Warrant) evidencing the number of shares of the Common Stock
not so purchased.
(d) As soon as practical after the exercise of this Warrant and
payment of the purchase price, the Company will cause to be
issued in the name of and delivered to the Holder, or as such
Holder may direct, a certificate or certificates representing
the shares purchased, provided that if any law or regulation
requires the Company to take any action with respect to the
Common Stock to be purchased before the issuance thereof, then
the date of delivery of such shares of Common Stock shall be
extended for the period necessary to take such action. The
Company may require that such certificate or certificates
contain on the face thereof a legend substantially as follows:
"No sale, offer to sell or transfer of the shares represented
by this certificate shall be made unless a registration
statement under the federal Securities Act of 1933, as
amended, with respect to such shares is then in effect or an
exemption from the registration requirements of such Act and
any applicable state law is then in fact applicable to such
shares."
(e) Notwithstanding anything contained in this Warrant to the
contrary, except in the event of a Sale Transaction, the
Warrant shall not be exercisable to the extent that, as a
result of and immediately following such exercise, FINOVA will
be deemed to beneficially own in excess of 79.99% of the
issued and outstanding shares of Common Stock (in any case, as
determined by the Holder, in its sole and absolute
determination, with the Holder providing written notice of
such determination to the Company at the time of any exercise
of the Warrant).
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3. Reservation of Common Stock. A number of shares of Common Stock sufficient
to provide for the exercise of the Warrant upon the basis herein set forth
shall at all times be reserved by the Company for the exercise thereof.
4. Fractional Shares. No fractional shares of Common Stock are to be issued
upon the exercise of the Warrant, but the Company shall pay a cash
adjustment in respect of any fraction of a share which would otherwise be
issuable in an amount equal to the same fraction of the market price per
share of Common Stock on the day of exercise as determined in good faith
by the Company.
5. Exchange, Transfer, Assignment or Loss of Warrant. The rights and
obligations of Holder hereunder are assignable with respect to all or any
portion of the shares of Common Stock purchasable hereunder to any person.
Notwithstanding the foregoing, no right or obligation under this Warrant
is assignable unless the Company has received an opinion of counsel
reasonably satisfactory in form and substance to counsel for the Company
that such transaction will not violate the registration requirements of
the Act or any applicable state or provincial law governing the sale of
securities. Upon surrender of this Warrant to the Company or at the office
of its stock transfer agent, if any, with the Assignment Form annexed
hereto duly executed and funds sufficient to pay any transfer tax, the
Company will prepare and deliver to the assignor and assignee, a new
warrant covering the warrants to purchase shares of Common Stock assigned
and retained, under the same terms and conditions as this Warrant, with
the name of Holder substituted for the assignee with respect to assigned
warrants to purchase shares of Common Stock. This Warrant may be divided
or combined with other Warrants which carry the same rights upon
presentation hereof at the office of the Company or at the office of its
stock transfer agent, if any, together with a written notice specifying
the names and denominations in which new Warrants are to be issued and
signed by the Holder hereof. The term "Warrant" as used herein includes
any Warrants into which this Warrant may be divided or exchanged. 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 indemnification agreement reasonably
satisfactory to the Company, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant
of like tenor.
6. Rights of the Holder. The Holder shall not, by virtue of this Warrant, be
entitled to any rights of a stockholder in the Company, either at law or
equity, and the rights of the Holder are limited to those expressed in the
Warrant and are not enforceable against the Company except to the extent
set forth herein.
7. Anti-Dilution Provisions. The Exercise Price in effect at any time and the
number and kind of securities purchasable upon exercise of each Warrant
shall be subject to adjustment as follows:
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(a) In the event there is any change in the Common Stock of the Company
by reason of any reorganization, recapitalization, stock split,
stock dividend or otherwise, there shall be substituted for or added
to each share of Common Stock theretofore appropriated or thereafter
subject, or which may become subject, to this Warrant the number and
kind of shares of stock or other securities into which each
outstanding share of Common Stock shall be so changed or for which
each such share shall be exchanged, or to which each such share be
entitled, as the case may be, and the per share price thereto also
shall be appropriately adjusted.
(b) The Company may retain a firm of independent public accountants of
recognized standing selected by the Board of Directors (who may be
the regular accountants employed by the Company) to make any
computation required by this Section 7, and a certificate signed by
such firm shall be conclusive evidence of the correctness of such
adjustment.
(c) Irrespective of any adjustments in the Exercise Price or the number
or kind of shares purchasable upon exercise of Warrants, Warrants
theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in this and
similar Warrants initially issued by the Company.
8. Reorganization, Reclassification or Merger. In case of any capital
reorganization or any reclassification of the shares of Common Stock of
the Company, or in the case of any consolidation with or merger or
amalgamation of the Company into or with another corporation, or the sale
of all or substantially all of its assets to another corporation effected
in such a manner that the holders of Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for
Common Stock, then, as a part of such reorganization, reclassification,
consolidation, merger, amalgamation or sale, as the case may be, lawful
provision shall be made so that the Holder shall have the right thereafter
to receive, upon the exercise hereof, the kind and amount of shares of
stock or other securities or property which the Holder would have been
entitled to receive if, immediately prior to such reorganization,
reclassification, consolidation or merger, the Holder had held the number
of shares of Common Stock which were then purchasable upon the exercise of
the Warrant had the Warrant been exercised. In any such case, appropriate
adjustment (as determined in good faith by the Board of Directors of the
Company) shall be made in the application of the provisions set forth
herein with respect to the rights and interest thereafter of the Holder,
to the end that the provisions set forth herein (including provisions with
respect to adjustments of the exercise price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of
stock or other property thereafter deliverable upon the exercise of the
Warrant.
9. Other Events. If any change in the outstanding Common Stock of the Company
or any other event occurs as to which the provisions of Section 7 or
Section 8 are not strictly applicable or if strictly applicable would not
fairly protect the purchase rights of the Holder in accordance with such
provisions, then the Board of Directors of the Company shall make an
adjustment in the number and class of shares available under the Warrant,
the Exercise Price or the application of such provisions, so as to protect
such purchase rights as aforesaid. The adjustment shall be such as will
give the Holder upon exercise for the same aggregate Exercise Price the
total number, class and kind of shares as he would have owned had the
Warrant been exercised prior to the event and had he continued to hold
such shares until after the event requiring adjustment. All calculations
under this Warrant shall be made to the nearest one-tenth of a cent.
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10. Adjustments for Other Dividends and Distributions. If the Company at any
time or from time to time during the term of this Warrant makes, or fixes
a record date for the determination of holders of Common Stock entitled to
receive a dividend or other distribution whether payable in securities of
the Company or in other consideration other than shares of Common Stock,
in each such event provision will be made so that the Holder will receive
upon exercise of this Warrant, in addition to the number of shares of
Common Stock receivable thereupon, the amount of other securities of the
Company or consideration that it would have received had this Warrant been
exercised on the date of such event and had it thereafter, during the
period from the date of such event to and including the exercise date,
retained such securities or consideration receivable by Holder as
aforesaid, subject to all other adjustments called for during such period
under this Warrant with respect to the rights of the Holder hereunder or
with respect to such other securities or consideration, if applicable, by
their terms.
11. Restriction on disposition. Neither the issuance of the Warrant nor the
issuance of the shares of Common Stock issuable upon exercise of the
Warrant has been registered under the Act or any applicable state law. The
Warrant is issued to the Holder on the condition that the Warrant and any
Common Stock purchased upon exercise of the Warrant are or will be
purchased for investment purposes and not with an intent to distribute the
same. All shares of Common Stock acquired by Holder upon exercise of this
Warrant shall be subject to the restrictions on sale, encumbrance and
other disposition contained in the Company's By-laws, or imposed by
applicable U.S. and state and federal laws or regulations regarding the
registration or qualification of such acquisition of shares of Common
Stock, and may not be sold or otherwise disposed of unless the Company has
received an opinion of counsel reasonably satisfactory in form and
substance to counsel for the Company that such transaction will not
violate the registration requirements of the Act or any applicable state
law regulating the sale of securities.
12. Officer's Certificate. Whenever the Exercise Price shall be adjusted as
required by the provisions of Section 7, Section 8 or Section 9 of this
Warrant, the Company shall forthwith file in the custody of its Secretary
or an Assistant Secretary at its principal office and with its transfer
agent, if any, an officer's certificate showing the adjusted Exercise
Price and the adjusted number of shares of Common Stock issuable upon
exercise of each Warrant, determined as herein provided, setting forth in
reasonable detail the facts requiring such adjustment, including a
statement of the number of additional shares of Common Stock, if any, and
such other facts as shall be necessary to show the reason for and the
manner of computing such adjustment. Each such officer's certificate shall
be made available at all reasonable times for inspection by the Holder or
any holder of a Warrant.
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13. Notices to Warrant Holders. So long as this Warrant shall be outstanding,
(1) if the Company shall pay any dividend or make any distribution upon
Common Stock (other than a regular cash dividend payable out of retained
earnings) or (2) if the Company shall offer to the holders of Common Stock
for subscription or purchase by them any share of any class or any other
rights or (3) if any capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or
merger of the Company with or into another corporation, sale, lease or
transfer of all or substantially all of the property and assets of the
Company to another corporation, or voluntary or involuntary dissolution,
liquidation or winding up of the Company shall be effected, then in any
such case, the Company shall cause to be mailed by certified mail to the
Holder, at least fifteen days prior to the date specified in clauses (i)
and (ii), as the case may be, of this Section 13 a notice containing a
brief description of the proposed action and stating the date on which (i)
a record is to be taken for the purpose of such dividend, distribution or
rights, or (ii) such reclassification, reorganization, consolidation,
merger, conveyance, lease, dissolution, liquidation or winding up is to
take place and the date, if any is to be fixed, as of which the holders of
Common Stock or other securities shall receive cash or other property
deliverable upon such reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation or winding up. Mailed or
telecopied communications shall be directed as follows unless written
notice of a change of address or telecopier number has been given in
writing in accordance with this Section:
If to Holder: ▇▇▇▇▇▇'s Address appearing on the books of the Company
If to Company: Aquis Communications Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
14. Miscellaneous. Whenever reference is made herein to the issue or sale of
shares of Common Stock, the term "Common Stock" shall include any stock of
any class of the Company other than preferred stock with a fixed limit on
dividends and a fixed amount payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company. The
Company will not, by amendment of its Articles of Incorporation or through
reorganization, consolidation, merger, dissolution or sale of assets, or
by any other voluntary act or deed, avoid or seek to avoid the observance
or performance of any of the covenants, stipulations or conditions to be
observed or performed hereunder by the Company, but will, at all times in
good faith, assist, insofar as it is able, in the carrying out of all
provisions hereof and in the taking of all other action which may be
necessary in order to protect the rights of the Holder against dilution.
The representations, warranties and agreements herein contained shall
survive the exercise of this Warrant. References to the "Holder" includes
the immediate Holder of shares of Common Stock purchased on the exercise
of this Warrant.
All shares of Common Stock or other securities issued upon the exercise of
the Warrant shall be validly issued, fully paid and nonassessable.
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15. Binding Effect. This Warrant shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns. If possible, this Warrant shall be
construed along with and in addition to any other agreement which the
Company and Holder may enter into, but any provisions in this Warrant
which contradicts any provision of any other agreement shall take
precedence and be binding over such other provision.
16. Governing Law; Waiver of Jury Trial. This Warrant shall be governed by,
and construed in accordance with, the internal laws of the State of New
York, and without giving effect to choice of laws provisions. The Company
and the Holder waive all right to trial by jury in any action, suit or
proceeding brought to enforce or defend any rights or remedies arising
under or in connection with this Warrant, whether grounded in tort,
contract or otherwise.
17. Descriptive Headings. Descriptive headings of the sections of this Warrant
are inserted for convenience only and shall not control or effect the
meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, this Warrant has been duly executed by Aquis
Communications Group, Inc., as of the 12th day of August 2002.
AQUIS COMMUNICATIONS GROUP, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President & CEO
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EXERCISE FORM
(TO BE SIGNED ONLY UPON EXERCISE OF WARRANT)
To Aquis Communications Group, Inc.:
The undersigned, the holder of the within warrant, hereby irrevocably
elects to exercise the purchase right represented by such warrant for, and to
purchase thereunder * ________________________ shares of the common stock of
Aquis Communications Group, Inc., and herewith makes payment of $ _____________
therefor, and requests that the certificates for such shares be issued in the
name of, and be delivered to, whose address is ________________________________
and social security or tax identification number is __________________________.
Dated:
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(Signature must conform in all respects to
the name of holder as specified on the face
of the warrant)
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Address
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City State Zip Code
In the presence of:
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* Insert here all or such portion of the number of shares called for on the
face of the within Warrant with respect to which the holder desires to
exercise the purchase right represented thereby, without adjustment for
any other or additional stock, other securities, property or cash which
may be deliverable on such exercise.
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ASSIGNMENT FORM
(TO BE SIGNED ONLY UPON TRANSFER OF THE WARRANT)
For value received, the undersigned hereby sells, assigns and transfers
unto______________________________________________________ whose address is
__________________________________ and social security or tax identification
number is _______________________________the right represented by the within
warrant to purchase _________________ of the shares of common stock of Aquis
Communications Group, Inc. to which the within warrant relates, and appoints
________________________________________ , attorney to transfer said right on
the books of Aquis Communications Group, Inc. with full power of substitution
in the premises.
Dated:
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(Signature must conform in all respects to
the name of holder as specified on the face
of the warrant)
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Address
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City State Zip Code
In the presence of:
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