FORM OF INITIAL WARRANT
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT, PURSUANT TO RULE 144 UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT.
No. IWC-__ Void after August 17, 2007.
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC.
WARRANT TO PURCHASE COMMON STOCK
This Warrant is issued to __________________ (the "Holder") by
International Wireless Communications Holdings, Inc., a Delaware corporation
(the "Company"), pursuant to the Loan Agreement dated as of August 18, 1997
among the Company and the persons named on Exhibit A thereto (the "Loan
Agreement"), and certain matters relating to this Warrant are governed by the
Exchange Agreement referred to in the Loan Agreement (the "Exchange Agreement").
This Warrant is one of the "Initial Warrants" referred to in the Exchange
Agreement. Each capitalized term which is used and not otherwise defined in
this Warrant has the meaning which the Exchange Agreement assigns to that term.
1. PURCHASE OF SHARES. Subject to the terms and conditions
hereinafter set forth, the Holder is entitled, upon surrender of this Warrant
at the principal office of the Company (or at such other place as the Company
shall notify the Holder hereof in writing), to purchase a number of shares of
the Company's [Class 1/Class 2] Common Stock, par value $0.01 per share (the
"Equity Securities"), at a per share purchase price of No Dollars and One
Cent ($0.01) per share, which is equal to (a) ____%* of the Total Number of
Issuable Warrant Shares at such time, REDUCED BY (b) the number of Warrant
Shares as to which this Warrant has theretofore been exercised or canceled
(as adjusted pursuant to Section 7, the "PREVIOUSLY ISSUED WARRANT SHARES").
The shares of Equity Securities issuable at any time as described in clauses
(a) and (b) above are referred to as the "WARRANT SHARES". The purchase
price of the Warrant Shares as provided in this Section 1 (the "Exercise
Price") shall be subject to adjustment pursuant to Section 7 hereof.
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* For any Committed Lender, the Percentage set forth for such Committed
Lender on Exhibit A to the Exchange Agreement.
2. EXERCISE PERIOD. This Warrant is exercisable only until and
including the close of business on August 17, 2007.
3. METHOD OF EXERCISE. While this Warrant remains outstanding and
exercisable in accordance with Section 2 above, the Holder may exercise, from
time to time, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of this Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Secretary of the
Company at its principal offices; and
(b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Warrant Shares being purchased.
4. NET ISSUE EXERCISE.
(a) In lieu of exercising this Warrant as to any number of
Warrant Shares, Holder may elect to receive shares equal to the value of this
Warrant with respect to such Warrant Shares (whereupon the purchase rights under
this Warrant as to such Warrant Shares will be cancelled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election in which event the Company shall issue to Holder a number of shares of
Equity Securities computed using the following formula:
X = (Y)(A-B)
-------
A
Where X - The number of shares of Equity Securities to be issued to
Holder.
Y - The number of shares of Warrant Shares as to which such
cancellation is to be effected.
A - The fair market value of one share of the Equity Securities
to be issued upon such cancellation.
B - Exercise Price (as adjusted to the date of such
calculations).
(b) For purposes of this Section, the Board of Directors of the
Company shall determine the fair market value in its good
faith.
5. RETURN OF WARRANT AND CERTIFICATES FOR WARRANT SHARES. Upon the
exercise or cancellation of the purchase rights evidenced by this Warrant, one
or more certificates for the number of Warrant Shares to be issued shall be
issued as soon as practicable thereafter, and in any event within thirty
(30) days of the delivery of the subscription notice. Together with such share
certificate(s), the Company will return to the Holder (or to such other Person
as the Holder may designate, so long as the Holder has complied with the
applicable provisions of Section 10 as to the transfer of this Warrant to such
other Person) this Warrant, after recording on the attached
Exercise/Cancellation Schedule the date of such exercise or cancellation and the
number of Warrant Shares as to which this Warrant is being exercised or
canceled.
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6. RESERVATION OF WARRANT SHARES. The Company covenants that it
will at all times keep available such number of authorized shares of its Equity
Securities issuable upon exercise of this Warrant, free from all preemptive
rights with respect thereto, which will be sufficient to permit the exercise or
cancellation of the purchase rights under this Warrant for the full number of
Warrant Shares specified herein. The Company further covenants that such
Warrant Shares, when issued pursuant to the exercise of this Warrant, will be
duly and validly issued, fully paid and nonassessable and free from all taxes,
liens, and charges with respect to the issuance thereof.
7. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF PREVIOUSLY ISSUED
WARRANT SHARES. The number of Previously-Issued Warrant Shares, the kind of
securities purchasable upon exercise or cancellation of rights under this
Warrant and the Exercise Price shall be subject to adjustment from time to time
as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the
Company shall at any time prior to the expiration of this Warrant subdivide its
Equity Securities by split-up or otherwise, or combine its capital stock, or
issue additional securities as a dividend with respect to any shares of its
Equity Securities, the number of Previously Issued Warrant Shares shall
forthwith be proportionately increased in the case of a subdivision or stock
dividend, or proportionately decreased in the case of a combination. Inversely
proportional adjustments shall also be made to the Exercise Price payable per
share, but the aggregate purchase price payable for the total number of Warrant
Shares purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 7(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as of
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
(b) RECLASSIFICATION, REORGANIZATION, AND CONSOLIDATION. In
case of any reclassification, capital reorganization, or change in the capital
stock of the Company (other than as a result of a subdivision, combination, or
stock dividend provided for in Section 7(a) above), then, as a condition of such
reclassification, reorganization, or change, lawful provision shall be made, and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall have the right at any
time prior to the expiration of this Warrant to purchase, at a total price equal
to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities and property receivable in connection with such
reclassification, reorganization, or change by a holder of the same number of
shares of capital stock as were purchasable by the Holder immediately prior to
such reclassification, reorganization, or change. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
so that the provisions hereof shall thereafter be applicable with respect to any
shares of stock or other securities and property deliverable upon exercise
hereof, and appropriate adjustments shall be made to the Exercise Price per
share payable hereunder, provided the aggregate purchase price shall remain the
same.
(c) NOTICE OF ADJUSTMENT. When any adjustment is required to be
made in the Previously Issued Warrant Shares, in the number or kind of shares
purchasable upon exercise of this Warrant, or in the Exercise Price, the Company
shall promptly notify the Holder of such event and the adjusted number of
Previously Issued Warrant Shares, the adjusted
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Exercise Price and the type of securities or property thereafter purchasable
upon exercise of or cancellation of rights under this Warrant.
8. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise or cancellation
of rights under this Warrant, but in lieu of such fractional shares the Company
shall make a cash payment therefor on the basis of the fair market value (as
determined in good faith by the Company's Board of Directors) of one Warrant
Share of the type in question.
9. NO STOCKHOLDER RIGHTS. Prior to exercise of this Warrant, the
Holder shall not be entitled to any rights of a stockholder with respect to the
Warrant Shares, including (without limitation) the right to vote such Warrant
Shares, receive dividends or other distributions thereon, exercise preemptive
rights or be notified of stockholder meetings, and such Holder shall not be
entitled to any notice or other communication concerning the business or affairs
of the Company. Notwithstanding the foregoing, the Company will give written
notice to the Holders hereof at least 20 days prior to the date on which the
Company closes its books or takes a record (i) with respect to any Distribution
upon the Equity Securities, (ii) with respect to any pro rata subscription offer
to holders of the Equity Securities or (iii) for determining rights to vote with
respect to any Liquidity Event, Organic Change, dissolution or liquidation. The
Company will also give written notice to the Holders hereof at least 20 days
prior to the date on which any Liquidity Event or Organic Change takes place.
10. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the Holders
hereof and their respective successors and assigns.
A Holder may transfer in whole or in part the purchase rights
evidenced hereby to any third party to whom such rights may be transferred
without registration or qualification under federal or state securities laws,
provided: (a) the transferee or assignee receives a Warrant to purchase five
percent (5%) of the Warrant Shares; (b) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of the
name and address of such transferee or assignee; (c) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of this
Warrant; and (d) the transferor shall have delivered to the Company, if
reasonably requested by counsel to the Company, an opinion of counsel
substantially to the effect that the transfer or assignment can be effected
without registration or qualification under applicable federal or state
securities laws (or, at the Holders' option, a certification by the Holder to
that effect in which the Holder agrees to indemnify and hold harmless the
Company in respect of any violation of such securities laws in connection with
such transfer). Upon surrender of this Warrant to the Secretary of the Company
at its principal offices after any such transfer, the Company will issue one or
more new Warrants of like tenor (in the name(s) of the Holder and/or the
transferee(s), as appropriate) representing in the aggregate the purchase rights
represented by this Warrant.
11. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended
and the observance of any term of this Warrant may be waived (either generally
or in a particular instance and either retroactively or prospectively), with the
written consent of the Company and the holders Initial Warrants representing a
majority of the securities as to which all outstanding
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Initial Warrants are then exercisable. Any waiver or amendment effected in
accordance with this section shall be binding upon each holder of any Warrant
Shares thereafter purchased under this Warrant, each future holder of all such
Warrant Shares, and the Company.
12. EFFECT OF AMENDMENT OR WAIVER. The Holder acknowledges that by
the operation of paragraph 11 hereof, the holders of Initial Warrants
representing a majority of the securities as to which all outstanding Initial
Warrants are then exercisable will have the right and power to diminish or
eliminate all rights of such Holder under this Warrant or under the Exchange
Agreement.
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13. GOVERNING LAW. This Warrant shall be governed by the laws of the
State of Delaware as applied to agreements among Delaware residents made and to
be performed entirely within the State of Delaware.
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
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SUBSCRIPTION
International Wireless Communications Holdings, Inc.
Attention: Corporate Secretary
1. The undersigned hereby elects to purchase, pursuant to
the provisions of the Warrant to Purchase _______________ shares of
_________________ stock of International Wireless Communications Holdings,
Inc. and held by the undersigned, ____________ shares of ________ stock of
International Wireless Communications Holdings, Inc. Payment of the exercise
price per share required under such Warrant accompanies this Subscription.
1. The undersigned hereby elects to receive shares
equal to the value of this Warrant as to _________ Warrant Shares in the
manner specified in Section 4 of the Warrant.
[Strike paragraph above that does not apply.]
Date:
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Signature:
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Address:
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Name in which shares should be registered:
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EXERCISE/CANCELLATION SCHEDULE
Date Number of Warrant Shares as to which
Warrant Exercised or Canceled